*Columbia*

Heard by Chancellor Dessausure.

ci.sn xtxrx.

#### Henry Snelgrove, and others, *vs.*William Snelgrove, and others.

A principal devisee of real estate, cannotbe a competent subscribing witness to the will under which he claims, because he is interested.

The penner of the will, who by being named an executor, writes his own name on the face of the y-ill, and is present at the execution of it, is not a subscribing witness under the statute.

A purchaser from the devisee under the ineffectual will, is not protected, unless he brings himself clearly within all the rules on the subject.

In cases of partial intestacy, a child advanced in the lifetime of the testator, is not bound to bring such advances into botch pot, in order to be let into a distributive share of the undisposed estate.

A bequest of *Se.*and no more, to a child, does not exclude him from a share of the undisposed estate.

The widow to whom the whole real and personal estate was de. vised during life, is entitled on the discovery of the imperfection of the will as to real estate, to take the bequest of the personalty, and her third part of the real estate in fee, under the statute of 1791; accounting for the rents and profits, whilst she held the whole real estate under the will. Her representatives are also entitled to dó so.

JUNE, 1812.

Henry Sneigrove, the father of the complainant and defendant, made his last will and testament on the 14th day of May, 1798, whereby he devised and bequeathed to his wife, Honor Sneigrove, all his estate, real and personal, during her natural life, for her sole use, to be disposed of at her discretion, the better to raise her small children ; to continue in peaceable possession of the same during her natural life. And at the death of his wife, the testator desired that his estate should be dis.posed of by his executors in the following manner:

To each of his daughters, Susannah, Mary, Elizabeth, Margaret and Rebecca, and to his son Henry, five shillings and no more.

He then proceeds thus : *Item; I*give and bequeath to my well beloved son William Sneigrove, all my lands and tenements, &c. to have and to hold to him and his heirs for *ever;*and also two negroes and some other personal property. Rut «if it should please God to call my *275
      *sou*William Snelgrove from this life without issue, all that he should die possessed of shall be equally divided between my four under named daughters, Hannah, Le-ricinia, Naonee and Dolly.”

All the rest of his negroes, stock, furniture and every thing not otherwise disposed of by his will, he directs to be sold by his executors, and the money to be divided between those four daughters ; but if one of them should die without issue, the money is to be divided amongst the survivors.

The testator then proceeded to name Daniel Clary, Edward Snelgrove and John Gregory the sole executors of his will, and revoked all proceeding wills.

To this last will and testament, George Wise, John Wise and William Snelgrove were subscribing witnesses.

The testator died, leaving the above mentioned will in full force.

It was proved before the ordinary in common form by George Wise, and the widow Honor Snelgrove took possession of the whole estate, real and pei’sonal, and enjoyed the same during her life, and upon her death, her son William Snelgrove took possession of the real estate as devised to him, and the personal estate was divided according to the testator’s will. ■ William Snelgrove also made sales of part of the real estate to John Ergerand --Coon, who have been in possession of the *parts*purchased by them for some time, and have cultivated small poi'tions thei’eof.

After some time it was discovered by some of the children who had been cut off under the testator’s will with *5s.*that though the will had been executed in the presence of three subscribing witnesses, one of them was William Snelgrove, the principal devisee under the will $ and learning that he was not a competent witness to establish the will, they determined to contest his rights to the land, and filed this bill to establish their rights and for an account of the rents and profits during the time he held the same.

William Snelgrove the principal devisee of tlio land, pleads the statute of limitations, and insists upon his pos-’ *276session of the land *•,*and answers that the will was duly executed by the testator in the presence of three witnesses, w^° subscribed their names thereto; but admits that he' himself was one of the three subscribing witnesses. He answers further, that the will was written by Daniel Clary, by the direction, and in the presence of the testator, and that Daniel Clary was present at the execution of the will. And he insists that Daniel Clary having written his own name in the body of the will where the testator appointed him executor, this is in substance, though not exactly in form, a subscribing the will as a witness thereto, within the statute.

The defendant, William Snelgrove, further insisted that complainant H. Snelgrove, was portioned off by his father, and received nearly his share of the father’s substance, and could not come in for a distributive share of the land. And he insisted further that some of the children, to whom 5s. had been devised, had received the same, and gave receipts therefor, which was an acquiescence in the will, and bound them. And finally that Honor Snel-grove, the widow, would be entitled (if the will was invalid as to the real estate) to one third of the lands under the act of 1791, and that her share would be divisible among the children of Honor, who would be entitled to that third, to the exclusion of the other children of the testator.

The defendants, Erger and Coon stated, that they were fair purchasers of part of the land in question, for valuable consideration, without notice of complainants claims; and have been in possession of the lands purchased for some year’s, and cultivated part thereof.

Three of the defendants, (to whom the testator had bequeathed *5s.*and no more) submit the matter to the court, and say, that if the will shall be adjudged not to have been duly executed, and therefore void asto theland, they will be contented nevertheless to abide by the will of their father, and to renounce and release their rights to ■William Snelgrove, the devisee. Others of them insist on their rights.

Upon the trial the following testimony was given.,

*277Mr. George Wise, witness for complainants, was subscribing witness to the will of Henry Snelgrove, also John Wise and William Snelgrove, the defendant in this suit. He knew formerly, Henry Snelgrove, the son. one of the complainants in this suit. He resided at a distance, not near his father. Mrs. Honor Snelgrove, the widow, survived her husband some years, four or five years, and kept possession of all the estate during her life. The children of the testator, by the last wife, Honor, were Mrs. Eliza Gregorio, R. Kelly, Mary Livingston, Wm. Snelgrove, Hannah Turner, Lavisia Snel-grove, Naomie Snelgrove and Dolly Lester.

Henry was a child of the second marriage, and Mary of the second marriage. Susanna was of the first. Witness thinks there was some conversation before signing the will, but does not remember the particulars. None of the children of the first and second marriages were present at the execution of the will. Some of the last marriage were present; William and Hannah certainly. The will appeared to he fairly and openly done, and executed without any influence exercised over him. Clary was present and saw the execution of the will, but was not called upon to sign as a witness, nor' did he sign it as a witness. Clary was named executor, but has never qualified.

Mr. John Wise examined. Witness was present when Henry Snelgrove signed his will. Witness subscribed the will with George Wise and Wm. Snelgrove. No other person signed it as witness, or was called to do so. Witness confirms his brothers testimony. The will had no other subscribing witness than the two Wises, and William Snelgrove, the principal devisee.

Hannah Turner’s testimony was offered by defendant. This was objected to, as she and her husband are *defendants;*interested in the contest, ami liable to costs which may be imposed in the case. The real estate is devised to William Snelgrove ; and Hannah Turner is one of the legatees of the personal’estate. But Colonel Chappell answers the objection, by stating that sbe lias disclaimed all right to the land, and is protected as to the *278costs by agreement of defendant. Besides, it would be swearing against her interests: First, as to the real estate; secondly* as to the personal: third* as to botch Poti fourth, as to costs,

Mr. Starke — As to the release of her interests in the land: If she has released herrightsto her brother, she maybe bound by covenants. The release executed by Mrs. Turner and her husband was produced. It was a mere relinquishment of her rights. The court admitted the tetimony of Mrs. Turner provisionally. Interrogatories to Mrs. Turner. She answers, that Daniel Clary wrote the will at the request of her father, and was present at the execution of the will. Honor Snelgrove gave up the property under the will to her son, William Snelgrove j but does not say when William Snelgrove claimed the land as his own.

Mr. Charles Banks. — William Snelgrove sold to Coon some years ago, not so long as four, or about four years ago from this time. Saw Mr. Gregory and his wife sign a receipt for the legacy of 5s. It was a mere receipt for the legacy of 5s. Little or no conversation at the taking of the receipt.

The first question which arose in this case, was as to the execution of the will. It was contended that Win. Snelgrove, though principal devisee of the land, was a good subscribing witness to support the will under *the*statute of frauds. Because the attestation of two other witnesses who were disinterested, and the absence of all pretence of fraud in obtaining this will, took away all ground of *apprehension;*and because the interest of William Snelgrove was in remainder and contingent, and might never have attached, as he might have died in the life-time of the testator, therefore, he might well be admitted as a subscribing witness to satisfy the statute.

The statute of frauds prescribing the manner of the execution of last wills, devising real estates, declares, that the same shall be in writing, signed by the person devising, or by some person in bis presence, and by his express direction, and shall be attested and subscribed in the presence of the devisor, by three, or four credible. *279witnesses, ox* such will shall be utterly null and void.— The act of 1734, (See Public Laws 139,) re-enacts the same regulations, and i*efers to the statute of frauds. And the act of 1789, (see Pub'. Laws, 491,) re-enacts the same provisions precisely, though with a slight inversion of the terms. Thus the wisdom of this statutory regulation has been l’ecognised at various and distinct intervals.

With i*espect to the question, who are ci*edible wit, nesses, we must resold to the rules of the'common law. They decide that all persons of whatever religion 01* country, who acknowledge the being of God, and a future state of rewards and punishments, may be received and examined, except such as are infamous, (that is, convicted of some infamous crime) or interested in the event of the cause. All others are competent witnesses, though the court will, from other circumstances, judge of their credibility. The word credible, used in the statute, has given occasion to great controversy. But all the contending opinions agree, thatcredible involves competency, and many of them insist that it includes more. The invariable maxim at law is, nemo testis esse debet in propria eausa. Apply this to the case under consideration.— Mr. William Snelgrove is one of the three subscribing witnesses to a will, which devises to him the whole real estate in question. He not only has an interest, hut he has the sole interest in setting up this will. He W'ould be a witness in his own cause. But this he cannot be by the rule of law. He is incompetent, and his signature is as a nullity. The will then rests for support upon two subscribing witnesses. But the statute requires three; and the practice of this court is rigorously to require, that all three of the witnesses should be examined — l Ve-zey sen. 284. I am not at liberty to dispense with the statute. It was urged that his interest was contingent, and might have lapsed 3 hut it was a vested interest, to take effect with certainty at the expiration of a life estate which intervened. And as to the possibility of its lapsing, that was a mere possibility, and has not occurred. So that he had an interest at the time of his signing the will as a witness, which has remained unaltered until he is called upon to prove the will.

*280
      *jj.*wag gaj¿¡ ^]1R cage ^.nsty and Dowsing, reported in Strange 1253, which decided that no legatee or creditor, where the. legacies and debts were charged by the will on the real estate, could he competent witnesses to such will, because interested in support of the will, established too strict a doctrine: And was followed by a statute which restored the credit of such legatees and creditors. And that by a later decision, (the cause ef which arose'prior to the statute, though determined after,) three witnesses who were creditors were admitted to be sworn, and held credible, though their debts were made chai’geable on the real estate by the will. Wind» ham vs. Chetwynd, I Burr, 414, 430.

I can only say, that the decision of Ansty and Dowsing, seems to me exactly conformable to the rules of the common law. If the subscribing witnesses were interested, they were incompetent. And how did the statute, remedy the inconvenience ? Why, by declaring void all legacies, and thus taking away their interest.

As to the decision in Burrows, I do not hold it to be so conformable to the rules of law, as the case of Ansty and Dowsing. And Lord Camden, it is well known, differed decidedly from Lord Mansfield on that doctrine. — Roberts on Frauds 421 j 7 Bacon, 329 to 336.

But of all the cases decided on this point, that of Hilliard and Jennings, reported in Comyns Reports, 91» and 1 Lord Raymond, 505, and by several other reporters» [See 7 Bacon, 329; 8 Viner, 132, but very badly in Car-thew] is that most perfectly like the one now before the court. Indeed it may be said to run on all fours. There the testator devised all bis landto A.B. who was one of the three subscribing witnesses. And all the ingenuity possible was exercised to shew that A. B. might be a good subscribing witness to this will under the statute; but it was solemnly decided, that the devisee could not be a witness, as he was to take by the will. And in my opinion this doctrine can never be shaken.

But admit the full force of the case of "Windham *vs.*Chetwynd, in 1 Burrows, 414, and what does it amount *281to ? It admits pecuniary legatees and creditors, "who in ease of the failure of personal assets, may, by the operation of the will, come for payment on the real estate devised, to prove the will. Persons with indirect, and often small interests, were allowed to be sworn to support the will. But this is very different from the case before the court. I am asked to let in, not a small pecuniary legatee, or a creditor who has a good personal estate to look to, as a witness to prove the will, but the devisee of all the land in question, which is the very subject of the controversy. This would be a palpable subversion of every rule of the common law on the subject of evidence, which I cannot consent to. Not one of the cases relied on by the defendant ever went so far.

It was insisted, that even if Mr. Snelgrove could not be admitted to prove this will on his own behalf, he might be admitted to do so for innocent purchasers to whom he has sold these lands for a valuable consideration without notice. And the case of Baugh *vs.*Holloway, was cited to establish this point — 1P. Wins. 557.

It might be sufficient to say, that upon examining the case, both in P. Williams and 2 Equity Cases Abridged, it appears the point was not decided, but the parties were sent to law. It is true that Sir Robert Raymond observed, that it had been determined by Lord Holt, in Hilliard *vs.*Jennings, that in such "a case, the will as to this devise was only void; And then A. the de-visee and subscribing witness, would he a good witness as to the rest of the will. But Lord Chancellor Parker said nothing as to this point, as stated by Sir Rohert Raymond 5 and did not decide the point at all. But of what avail would that decision be to the defendant, William Snelgrove, in the case under consideration ? He is sole devisee in fee of the lands of testator. And if he can only be let in to prove the will, by the devise to him I being void, he might as well lose the devise by not proving the will, as by giving up Ins devise to be admitted ¡1 l witness. Quacunque via data he must lose it.

1 As to William Snelgrove being admitted to prove.' Ithe will, provided he had sold out his interests, without • *282covenant or warranty, as is said in Swinburn may be done, * answer, that I doubt that law. It has no common authority. The case of Hilliard and Jennings, referred *o, does 11 support it. It was the incorrectness of Carthew’s report which misled. See 7 Bacon 329, 330. Besides, by the decision in Tucker *vs.*Grimke, it appeal’s that this court has decided, that whenever a man sells land, though without covenant or warranty, and the buyer is evicted, he may recover back the purchase money. Thus Snelgrove would still remain interested, if he had made such sale. But in truth there is no evidence that he made sales without covenant or warranty; and if he had done so, it was only of part of the land *;*and he was still interested in the remainder. Consequently he was an incompetent witness. He cannot prove the will by halves. If he proves it at all, he proves it in toto,' as well for what he holds, as for what he has sold. And as to what he has sold, he must refund the . money paid him, if the title is bad. He has then a direct interest to support the will in all its parts.

It was further alleged, that Mr. Cleary had written . the will in question in the presence of the testator, and by his direction, and he being named therein as executor of the will, he necessarily wrote his own name in the course of preparing the will,• and that was done in the presence of the testator, who afterwards signed the ■will in his presence. And it was insisted that this was a sufficient attestation and subscription by Mr. Cleary, t® satisfy the statute of frauds; and that he ought to be considered the third subscribing witness to the will within the statute.

The evidence upon which this state of facts rested, was derived from Mrs. Turner. Her testimony was objected to, as she was one of the daughters of testator interested in the will, a legatee of the personal estate, and a defendant who might be liable to costs. ;

I admitted her testimony provisionally, and I am satisfied that I did right. In swearing to support the will, I she swore against her interests as far as regards the land, for it is to carry it all to William Snelgrove, the devisee,- I

*283, If the will were set aside, she would come in for a distributive share. She has, however disclaimed all share; and her testimony can have no effect as to the personal estate, the will as to that is clearly established and cannot be disputed. As to the costs, she is protected by Snelgrove’s agreement; and none could fall upon her in such a case. The court would not subject her to any. It would have been very desirable to have had her examined personally in court, as to the particulars of her testimony. We must, however, accept it, as wTehave received it by the consent of the parties; and suppose that it states fully and accurately all that passed.

The question then is, can we consider Mr. Cleary, Hinder these circumstances, a subscribing witness to this will under the statute ?

I have considered this question very fully. It was to my mind a new *one;*but I cannot say that I have any doubt. It is evident that the testator did not look upon or consider Mr. Cleary as a subscribing witness to his will. He called three others to perform that function. — ' He emjsloyed Mr. Cleary as bis amanuensis. And the appearance of Mr. Cleary’s name on the face of the will is accidental. He chose to name him one of his executor's 5 and of course Mr. Cleary in writing the names of. the executors wrote his own name. But 1 cannot consider this as attesting and subscribing the will as a witness within the meaning of the statute. The cases say, and good sense concurs, that the subscribing witnesses ai’e placed about the testator, as-his guardians to prevent imposition, and to secure to the public the due execution of one of the most important acts of a man’s life, often performed in extremis, when the fountain of life is nearly exhausted, and the judgment nearly expired. It is a species of confidential office, created by the law pro liac vice. I cannot consider the accidental circumstances, which placed Mr. Cleary’s name in his own hand writing on the face of the will as executor, in the presence of the testator, and the accidental circumstance of the testator’s afterwards signing in his presence, as constituting him a subscrih* *284ing and attesting witness. The two Wises, the subscribing witnesses who were sworn, did not speak of him as a witness; they say that Cleary was not called upon as a witness, nor did he subscribe as a witness: they sP°ke °f William Snelgrove as the third subscribing witness. I cannot, therefore, admit William Cleary as a subscribing witness to this will under the statute. Consequently the will has only two lawful subscribing wit. nesses, and is by the sentence of the statute null and void as to the real estate ; which, therefore, becomes divisible among the widow and all the children of tlie testator; unless there should be found some other bar to the complainant's title. Nevertheless, the party dissatisfied may try this question at law if he pleases.

'With respect to the title of the purchasers of those portions of the real estate, which some of the defendants bought of Mr. William Snelgrove, I am inclined to think that the plea of being purchasers for valuable consideration, without notice, does not exactly come up to their case.

I do not here lay any stress upon the doctrine of the real owners standing by fraudulently, and seeing a person without a good title selling the estate to a third per-soil, ignorant of the existence of a better title, for a valuable consideration, without cautioning the purchaser j for there could be no doubt if such a case "were made out, what would be the decision of the court. But there is no allegation or suspicion of such fraud in this case. The silence of the brother and sisters of William Snel-grove, if they knew of his intended sales, arose from a mistaken apprehension that the will of their father, devising away the estate, was duly and effectually executed.

And it has not been proved that they knew of the intended sales by their brother William Snelgrove. It is true, that the mistake or misapprehension of the party entitled, but who thinks himself not entitled, shall not prejudice a fair purchaser for valuable consideration without notice. But this is where the person so ignorant of his right has joined in the conveyance. As in Malden *vs.*Merdn, *%*Atkins, 8,- where it is laid down *285that where a purchaser has given full value for an estate, the mistake or ignorance of some of the parties to a conveyance of their claims under a marriage settlement, shall not turn to the prejudice of a fair purchaser. In the case before us, the children of Snelgrove, the testator, did not join in the conveyance of their brother William, to the purchasers in question. Where the mistake is without any default of the heirs, a purchaser will not be protected even after long possession. For in the case of Squire *vs.*Pershall, 8 Yiner, 169, PI. 13, the discovery of the insanity of the testator, has occasioned the setting aside of a will, even after twenty years possession under it, and that too against a purchaser.

The case of Broderick *vs.*Broderick, reported in 1 P. Williams 239, but far better and more fully stated in 4 Yiner, 534, is a strong case to illustrate the course *of the*court in these cases. In that instance, a devise was defectively executed by the subscribing witness signing out of the presence of the testator, contrary to the statute. The devisee under the will representing to the heir at law genei’ally, that the will was duly executed, obtained a release from him of the land, worth 4000?. on which he gave a small sum to the heir of the devisor. And afterwards for a further small sum, got the heir at law to join him in conveying the land to a third person, who in fact was only a private trustee for himself and re-conveyed to him. The devisee sold pai*t of the premises for a valuable consideration to a third person, who had no notice of the invalidity, except that he had heard it mentioned in *common*discourse. Afterwards the heir at law discovering that the will was not duly executed, filed his bill for relief. And the Chancellor decreed that the release should be set aside, and that the purchaser should re-convey to the heir at law, though ho had paid his money. But as he was not privy to the fraud, (only having hoard casually of the will being unduly executed) that he should have his purchase money and interest repaid him, upon his accounting for the rents and profits.

Thus we see that though no fraud was practised in this case in obtaining the will, only that the three *suh~*
      *286scribing witnesses had gone into another room, out of tho presence of the testator, for more convenience to attest the same j yet the non-disclosure of this circumstance t® the heir at law was considered such a concealment as amounted to a fraud, which overreached the will, set aside the release, and affected even the purchaser, who had heard a rumour of the manner of the execution of the will. This is a case of great import and effect, and applies pretty strongly to the case before us in many of its features.

The imperfection of this will arose from another cause, but the effect is the same. No release however has been executed, and therefore the court is called upoa for a less exertion of its power.

If I had more doubts than I have on the other grounds, there is one whieh seems to be conclusive. The defendant has not as I have been informed,pleaded as usual and as is required, that he was an innocent purchaser for valuable consideration without notice. He has answered merely, and that very loosely. I would not be too rigorous in the infancy of our Circuit Courts, in applying the strict rules eitheb of practice or of pleading in such a case. But the substance must be regarded.

Allowing then, contrary to the authorities, that the answer should stand for a plea in such a case as this, the requisites of a plea must be complied with. Sugdcn, *SÍC7.*Bel. C. C. 51 ; 1 Ans. 14.

From the decided cases, these seem to be indispensable to support lite pica. In the first place it must bo sworn to. Sugden, *SO7,*8, Pre. Cha. 480, Marshall *vs.*Frank.

If the defendant answers to any thing which he should plead, (in this case) he overrules his plea, though he may answer any thing in subsidium of his plea, l Ans. 14, Blanket *vs. Langlands;*SeL C. C. 51. ' Gilb. 58.

The pica must state the deeds of purchase, setting forth the dates, parties and contents briefly, and the time of their execution, for that is the peremptory matter in bar. 8 Aik. 302, Aston and Aston 5 SVcz. lOT, 89f> 0 Vez, jr, 24, Walwyn *vs.*Lee,

*287Such a pica must aver that the person who conveyed or mortgaged to the defendant was seized in fee, or pretended to be seized ,• and was in possession, if the conveyance purported an immediate transfer of the posses-sian at the time When he executed the purchase or mortgage deed. 2 Atk. 397. Ib. *630;*Story vs. lord Windsor. 3 P. Wins, 279, *281;*Head vs. Egerton. 1 Tern. 246 j Trevannian vs. Mosse. 3 Yes. jr. 226,9. Ib. 32. Ambler, 421.

The plea must aver a conveyance and not articles *merely;*for if there are articles only, and the defendant should he injured, he may sue at law upon the covenants in the articles. 3 P. Wins. 281. 1 Atk. 571.

The plea must distinctly aver that the consideration money mentioned in the deed was bona fide and truly paid, independently of the recital of the purchase deed ; for if the money be not paid, the pica will be overruled, as the purchaser is entitled to relief against payment of it. A consideration secured to he paid, is not sufficient. 2 Atk. 241. 3 Atk. 304, 814.

It is doubted if the particular consideration need he stated in the plea. The cases have been contrary. 2 Freem. 43. 2 C. C. 156. 1 C. C. 34. Hard. 510.

But if it be stated, there can be no objection to it, as if it be bona fide and valuable, it need not be adequate to support the purchase and the plea. Ambler, 764, 767. Finch, 102.

The plea must also deny notice of the plaintiff’s title or claim previous to the execution of the deeds and payment of the consideration money. And the notice so denied must be of the existence of the plaintiff’s title, and not merely of the person who could claim under such title. lYern. 179. 2 Atk. 631. 3 Ib. 304. 2 Eq. C. 685. 1 Atk. 522, which overruled. 2 Ycrn. 159, Brampton vs. Banker; 3 P. Wms. 243.

The notice must be positively and not evasively denied, and must be denied whether charged in the bill or not. 2 Eq. C. abr. 682. 8 P* Wms. 244. 6th resola -

*288If particular instances of notice or circumstances of ^rau^ are charged, they must he denied as specially as charged. 3 Atk. 815. *9,*Yes. jr. 187. 4 JBro. C. C. 2 Yes. 450.

The special and particular denial of notice or fraud must be by way of answer, that the plaintiff may be at liberty to except to it for insufficiency. 1 Vern. 185. 2 C. C. 161.

But notice and fraud must also be denied in the plea j otherwise the fact of notice or of fraud will not be in issue. 3 P. Wins. 91, 5 j Dutchess Kingston, Mitf 216, n. *5*Yes. jr. 426.

If a purchaser’s plea of valuable consideration be sent down for trial, and falsified by verdict at law, and a decree is thereupon made against purchaser,-and he carries an appeal to the House of Lords, it will be dismissed of course. Colie’s Pari. Cases, 361.

The title of a purchaser for valuable consideration "without notice, is not a sword to *kttack the*possession-of others. Amb. 292. 3 Ves. jr. 225. It is a shield to defend the possession of a purchaser. Whether it will protect his possession from alégalas well as an equitable title, may be said to be doubtful. The cases have been contradictory on this point.

In Rogers and Searl, 2 Freeman 84, Lord Nottingham had been of opinion that the plea was not *good*against a legal estate. And in Williams *vs.*Lambe, Lord Thurlow says expressly that he thought where a party (complainant) is pursuing a legal title, the plea did not apply, it being a bar only to an equitable and not to a legal claim. 3 Bro. C, C. 264. On the other band, in Burlace *vs.*Cook, Lord Nottingham was of opinion that the plea was good to protect a purchaser against a complainant seeking to set up a legal estate. 2 Free. 24. And in Parker *vs.*Blythmorc, the Master of the. Rolls threw out the same opinion, though he did consider it necessary to decide it, as he thought the plea maintainable on other grounds. 2 Eq. C. abr. *79;*Pla. 1. AndinJerandm Saunders, Lord Rosslyn decreed that *289the plea would stand against a legal, as well as an equiíá-hie title. 2 Ves. je. 454.

It is evident that this doctrine remains unsettled, for it does not appear that the cases have ever been collated, sifted, and a final conclusion drawn from such comparison. It is obvious from an inspection of the cases gen* erally, that in most of them where the plea has been supported, it has been against an equitable and not a legal title.

Mr. Sugden, in his judicious collection of the doctrine and authorities upon this subject, says “ that to argue from principle, it seems clear, that the plea is a protection against a legal as well.as an equitable claim $ and as the authorities in favor of that doctrine certainly preponderate, we may perhaps venture to assert that it will protect against both.”

I am not entirely satisfied that this, is a correct conclusion. The inclination of my mind is the other way. It should be remembered that the plea protects, by the court refusing to aid the complainant in setting up a title. Now when the title attempted to be set up is an equitable one; it seems very reasonable that the court should forbear to give its assistance in setting up such equitable title against another title set up by a fair purchaser. But when the complainant comes with a legal title, I do not perceive how he can be refused the aid of the court, it seems no longer to be optional. As there is however so much contradiction and doubt, I could wish this point Would be carried up to tbe Court of Appeals, in any case where it fairly arose, and was the very point decided.

To apply all that has been said to the point under consideration, it is obvious, that if through indulgence, which I am willing to do, we should admit the answer of the purchasers to stand for a plea; that the answer does not-comply with the various regulations, which we have seen from the authorities must be pursued. The answers have not set forth the dates, parties and contents of the deeds of purchase, nor especially the time of their execution, which is essential. The answers have not set forth that the person from wSiom the defendants purchased was *290seized in fee, and was in possession, nor even from whom he purchased. The defendants have not set forth what ()£ t(ee(}sthey had, whether absolute conveyances, or only articles or agreements to convey, in which last case the plea would not protect. The answer has not stated that the consideration money was bona fide and truly actually paid, which is essential to support the plea. The answer has not denied so explicitly as it should do (though it has done so generally) notice of the plaintiff’s claim, or of the existence of his title. And finally the title of the complainant attempted to be resisted by the defendant’s answer (meant and considered to stand in the - place of the plea) is a legal and not an equitable one. On all these grounds, I am of opinion that the purchasers from Win. Snelgrove cannot be protected as purchasers for valuable consideration, without notice, and bringing themselves within the rules necessary to give effect to that defence.

The next point in this case was a question of hotch pot. It was insisted, if I understood the counsel correctly, that with respect to the real estate, of which the testator died intestate (by the imperfect execution of the will,) the same was distributable among all the children of the testator/ But that those who were advanced in the testator’s lifetime, or who got peculiar advantages by his will, as far as that is valid, must bring the property so acquired into hotch pot, or they must be excluded from any distribution of the land. And that our act of 1791 is more comprehensive in that respect than the English statute of distributions.

The doctrine of hotch pot, is generally a clear one. It is founded on the statute of distributions, by which it is provided that no child of the intestate (except his heir at law) on whom he settled in his lifetime any estate in lands or pecuniary portion equal to the distributive shares of the other children, shall participate with them of the surplus. Toller 375, 379. 2 Bla. 516, 517. But if the estate so given or secured him by wray of advancement or provision be not equivalent to their shares, then such part of the Surplus shall he allotted him as will *291make it equal, if such child chooses to come in. Among the various points which have been settled by judicial decisions on this statute, one is, that a legacy shall not be brought into hotch pot, as to that part of the personalty of which the testator died intestate. The Lord Chancellor King, aided by three judges in the case of Edwards and Freeman, resolved this point. And all the elementary writers concur in it. Indeed this agrees with the very words of the statute. But it is insisted that our act of 1791 goes further than the statute of distributions, and directs that a child, however provided for by the father, and whether by will or otherwise, must bring the value of such provision into hotch pot, before he can have the benefit of any undisposed residuum. I have examined the words of our act of 1791, and I do not perceive that there is any essential difference between them and the statute of distributions, only that the exception in favor of the heir at law is omitted in our act; and that the act of 1791 provides that all property, real as well as personal, acquired after making the will, shall be distributed as directed by that act. The words advanced by the intestate in his lifetime, which are those applicable to this question, are to be found in both statutes. I should therefore presume the same construction would be given to them. And we have seen it decided above, that a legacy shall not he brought into hotch pot. I must therefore consider the legacies of personal estate which are given by Mr. Snelgrove’s will, as not liable to be brought into hotch pot by the legatees, who may claim distributive shares of that part of the^real estate which has descended to all the children on account of the imperfect execution of the will.

I am not aware, for there was no proof on the trial, that any of the children were apportioned off or advanced by%e father in his lifetime. But the fact is alleged in the pleadings, and was assumed in the argument. Áñd *it*was insisted that they are bound to bring such advancement into liotch pot, before they could claim the benefit of a distributive sitare of the land winch descended-

*292I have looked a good deal into the books on the *satr--*jecfc. They are remarkably barren on the point. In the* Sd volume of the new and excellent American edition of Bacon’s abridgement, p. 77, we find in the text, the following words : <c If a father dies intestate as to part of his personal estate, a child advanced by him in his lifetime is not to bring such advancement into hotch pot in order to have a distributive share of such part whereof he died intestate.”- This is directly to the point in question, and the compiler refers to Prec. Cha. p. 170, for the decision in support of this position. I have not that hook, but the same case (Yachell *vs.*Jeffries) is stated in í! Eq. C. abr. p. 435, 6, and there the point decided docs not come up to the point in question.

I do not find any other English decisions upon this point, except a very late one by the Master of the Bolls, reported in 14 Yez. 317, 322, 3, Walton *vs.*Walton. There Sir. W. Grant said the provision in the statute of distributions appplies only to the case of actual intestacy, and where there is an executor, and consequently a complete will, though the executor may be declared a trustee for the next of kin, they take as if the residue had been actually given to them by the-will. Therefore the .child advanced by the father in his lifetime, is not obliged to bring his share into hotch pot. This decision turns somewhat on the executors taking what personalty is not bequeathed. But there has been a solemn decision in this country. In the case of the executors of Sinkler *vs.*Legatees of Sinkler, wherein a decree was given in May, 1802, the fourth point decided was, that a child advanced was not bound to bring such advance into hotch pot in a case of partial intestacy.

We come now to the consideration of another question in this important case, abounding so much with matter.

It is contended by the defendants, that Mrs. Honor Snelgrove, the widow and their mother, upon the failure ofthewillas to the real estate, became entitled to one third part of the real estate in fee simple under the act of *791, *293in exclu- /.and that her children are entitled to that third sion of the other children of Mr. Snclgrove.

The first objection to it is, that the act of 1791, requires the widow to have done some positive act, accepting this provision in lieu of dower. And that she not having done so, her heirs cannot afterwards claim it.

But this I think would be too rigorous a construction, of the act. The first part of the act gives the widow of an intestate, one third ps rt of his lands in fee, and af-terwards nseaning to guard against the claim of dower, being set ap in addition to this liberal statute provision, it says the same shall be in lieu of dower if accepted. By which it was meant to say merely that she should take either at her option, hut not both.

This is the language of the law as to the claim of dower when inconsistent with the will. A great number of cases might, and do daily arise, as sudden deaths, or embarrassments of the estate which might delay the election for some time, wherein it would be very hard to say that the heirs of the widow should not elect, although she in her lifetime did not decide, or if from misapprehension, she chose that of which she was ousted. I think the right is generally a transmissible one, subject to such regulations as to prevent the abuse of it, notwithstanding the phraseology of the clause of the act of 1791, which makes this regulation.

The next objection to this claim is, that Mrs. Honor Snelgrove has actually accepted the-provisions of the will of testator, and has thus barred herself of the legal provision of the act of 1791. In point of fact there can be no doubt that she did accept the provisions of the will, and held and enjoyed during her life the whole real and personal estate devised and bequeathed to.her by her husband’s will. But this is not conclusive on the main question, for several difficulties spring up :

First, — Were the devises and bequests in this will a substitute and a bar to the provisions of the act of 1791, in favor of the widow? And did they raise a case of election ?

*294Second, — If they were, does her acceptance bind her and her representatives, when it is found that the will is invalid as to the real estate, and neither gave her the right to enjoy the whole real estate for life, nor carried it after her death to her children.

It does not necessarily follow that every devise or bequest to a wife by a husband, is ,á bar to her claim, either of dovver or of her claim under the act to such of his real estate, whereof he may die intestate.

I am not aware at this moment of any decisions in our own courts under the act of 1791, directly on this point; but Í think the analogy to dower is very strong *;*and there the doctrine is that the right which a dowress claims under the will of her husband, are not necessarily inconsistent with her claim of dower. 7 Bacon, Ame. edit. 445, 6. 2 Yez. 572. 3 do. 249. 6 do. 615. And this court in the case of the executors of *the executor*of Monroe ■ns. Kogsraiid al. said expressly that it was not inclined to deprive a woman of her legal rights, under the idea of her having made an election.

An intent in the testator that a wife shall not take both her dower and under the will must be made out, either by express words used by the testator, or by the striking inconsistency of her claims of dower with the provisions of the will, before she can be put to her election. But in most cases she is put to her election, doubtless because such appeared to be the testator’s intention. Apply this doctrine to the provisions of the act of 1791. They arc intended to be and to stand in the room of dower. But the widow would not be barred of dower by any bequest in a will, unless positively excluded by the will, or necessarily by the inconsistency of the provisions. Suppose a testator makes a will of his personal estate, '■ and gives his wife a moderate pecuniary legacy, and then dies intestate as to his real estate. I presume in such a case she may then claim her rightsin the real estate under tiie act of 1791, or lier dower as she pleases, and take the legacy also.

But whilst I am disposed to admit this to be the general doctrine, I must say it appears to me that the *295dispositions of the will in this case do contain pro visions in favor of the widow inconsistent witli the claim of dower or under the act of 1791, for the testator devises and bequeaths to his wife after a few trifling legacies, the whole of his real and personal estate for life. This certainly superceded all claim of dower, and furnishes a strong presumption of intent in the testator, that ho meant thisjrovision to be in bar of all the claims of the widow of every kind. Besides the immediate subsequent disposal of the whole real and personal estate to other de-visees shews his intention more strongly than tho implication arising from the inconsistency of. the provision made *by*the will from that made by the law.

Upon the whole, I am of opinion that the wife could not have claimed under the will and under the act of 1791, if the former had been duly and effectually executed, so as to have secured to her the rights devised to her.

I am also of opinion that she lias done enough to shew that she intended to accept under tho will, if the same Were valid, for she took and enjoyed the whole estate during her life exactly as the will devised it to her $ and as far as such acceptance can bind liw, it bound her and her representatives,

But the knottiest point remains. The defendants insist very forcibly that her acceptance was founded on a misapprehension of the validity of the will. And as that, has failed with respect to the real estate, she was not bound by it, and may now claim under th® will as to the personal estate, ami under the act of 1791, as to the real.

That this court will correct mistakes and protect parties from the effect of their own errors, especially where no blame is imputable to the widow, for the error was common to all the parties. Thence they insist that the court will let in such of the defendants as are children and heirs of Mrs. Honor .Snelgrovc to claim a third part of the real estate as her property under the law of 1791, whilst she holds tho personal, estate under the will. 1 have examined most of the cases which hare been decided on this subject, with attention, In most of the cases *296where the wife had two provisions in view, one her dower at law, and the other under her husband’s will, they1 ai’e generally deemed inconsistent with each other by necessary inference, and that therefore she must be put to to her election, and cannot have both. Bridgman’s Digest, Baron and Feme, No. 10. See Amb. 466, Arnold to. Kempstead. Ib. 682. Villareal *vs.*Lord Galway. Ib. 730, Jones *vs.*Collier. 1 Bro. C. C. 445, Boynton *vs.*Boynton. 3 Vez. jr. 249, Straham *vs.*Sulter. 2 Ib. 572, French *vs.*Davis.

But even then it is certain that the widow in all cases of election shall be permitted to consider which provision is most toher advantage. 2 Eq. C. abr. Corns vs. Farmer. 1 P. Wms. 147. 1 Vez. 314. 4 Bro. C. C. 500. 3 Ves. jr. 887. 5 Vez. jr. 515.

And there are cases where the widow shall not bo precluded by having received one portion if she should afterwards discover that the other is moro beneficia]* 3 Bro. C. C. 255, Wake *vs.*Wake.

She is compelled however to make her election within a reasonable time, and be bound by it. Dickon’s Reports, 463. Ardesoif vs. Bennett.

In this case a feme covert who was heir at law, took a legacy of *50001,*under testator’s will, and she was held to have elected under the will. 3 Bro. C. C. 88, Butricke *vs.*Bradhurst.

But to come to the cases more immediately applicable to the question before us.

The first case of consequence was that of Noy’s *vs-,*Mordaunt, decided by Lord Keeper Cowper, in 1706. 2 Vern. 581. In that case a father disposed his estate by will among his children, and gave to one fee simple lands, and to another entailed lands, or under a settlement. The court decreed that it is upon an implied condition, that the child taking the lands in fee simple under the will, should release and acquit to the other whatever rights he had under the settlement.

The same doctrine was supported by Lord Chancellor Talbot, in 1735, in the case of Streatfield *vs.*Streatfield, Ca. Tem. Talbot, 176. And again by Lord Talbot *297lu Jenkins *vs.*Jenkins, which turned on an implied con* dition. 2 Vez. jr. 12, 13.

Until these last cases all the decisions down from Noys *vs.*Mordaunt bad been cases of devises of real estate alone. Had the rule gone no farther, but been confined to real estate, there would have been no difficulty. But lord Talbot by them decided that where the will comprized both real and personal estate, he would put the party to an election. But in neither of these cases was there any question of defect of the instrument.

Then came the case of Hearl *vs.*Greenbank, decided by lord Hardwicke in 1749, and was the first case where the difficulty sprung up, in consequence of the will relating both to real and personal estate, but defectively executed, as is the case now under our consideration. 1 Vez. sen. 299, 307. 3 Atk. S. C. 695, 715. In that case, testator devised his land to a person not his heir at law, and a legacy to his heir at law. . The will was not executed according to the statute of frauds, and was therefore void as to the real estate, though good as to the personal. The court decreed the payment of the legacy to the heir at law, without obliging him to give up the land. He did notconsider it a case of election.

Lord Hardwicke noticed the case of Noys *vs.*Mor-daant,and the subsequent cases and the principle established by them, which he said was right. But he said this case differs from all those j for here the will was void. There was no will as to the land ; and there was no caso which obliged the legatee under such circumstances to - make an election, and give up tine land to get the legacy.

There was no condition expressed on the face of the will that he should not have the legacy unless he gave up the land, and the court would not raise up an implication under such circumstances.

The next case which arose, was that of Boughton andBoughton, decided by lord Hardwicke in 1750. 2 Vez. sen. 12, 13, &c.

In that casé a contingent legacy was given to the heir at law, and the testator devised away lands from *298the heir to other persons. There was an express cowiition in the will, that if any of the children disputed his will in whole ox* in part, as to the real or pci'sonal estate, ^ie so disputing should forfeit all advantage under, his will. The will was not executed in the presence of three suberibing witnesses according to the statute, and was therefore void as to the real estate, but good as to the personal.

The lord Chancellor examined the subject fully, and was clearly of opinion, that the legatee who was the heir at law, could not take the benefit of this personal legacy, without waiving any rights to the land claimed by descent. He considered this diffei'ent from the case of Hcarl and Greenback, for here is an express clause forbidding the heir to take the legacy unless he complied with the will. He could not get over the express clause. In Hearl and Greenbank, he had refused to raise by implication, a condition (which was not expressed) that the heir should abide by the will in order to get the legacy, when in fact there was no will, at least no well executed will, which could cai’ry the land. B.ut here, there being an express condition annexed to a personal legacy, the court must consider every paid of that, whether relating to real estate or not; you must l’cad the whole will relating to the pci'sonal legacy, let it relate to what it will, which is a substantial difference.

The court decreed, that the heir should he put to her' election, and being an infant and incapable to make the election, the court decreed that the devisee under the imperfect will, should receive the rents and profits of the real estate devised, till the heir at law should come of age and make her election.

Afterwards came the case of Newman *vs.*Newman, decided by loi’d Thurlow, in 1783, which is very briefly reported in 1 Bro. C. C. 186. In that case the wife was entitled to a settled estate. The husband by his will .gives her an interest in another estate, and all his personal property, in bar of her other claims. But the will was not duly attested to pass real estate. The question was, whether the widow could take the personal estate under *299the will, together with her other claims, or must elect between them, although the real estate could not pass by the will.

It was decided first by the Master of the Rolls, that she could not take both, but must elect. But he postponed her election till an account could be taken of the personal estate, that she might know: which would be most advantageous to her.

On appeal to. the lord Chancellor, it was argued, that as the testator meant to give her the real as well as personal estate in exchange for her claims $ but as from the imperfect execution of the will, she could not take the whole provision intended for her, she should not be bound to make her election, but should take the legacy and the settled property. Her opponents resisted this and relied on Boughton *vs.*Boughton. 2 Vez. sen. p. 12, 13. The Chancellor affirmed the Master’s deci’ce, saying that the words extended to all her claims. Though this decree is stated most briefly, it is evident from this last expression of the Chancellor, that the clause of the will declaring that the devises and legacies were in bar of all her claims, was the reason that the widow and legatee was put to her election. And this brings the case of Newman and Newman exactly to that of Boughton *vs.*Boughton, where lord Hardwicke placed his decree, putting the party to his election, expressly on the ground, of the clause barring the devisee and legatee,, who should not comply with his will.

In 8 Yez. 492,496, this case is stated to have been decided by lord Kenyon, then Master of the Rolls, exactly in conformity to lord Hardwicke’s. decrees in Hearl and Grccnbank, and Boughton *vs.*Boughton *;*lord Kenyon said the doctrine was too firmly settled to be shaken, though he thought the distinction very nice.

And finally the subject again came before, the court in the case" of Sheldon vs. Goodrich, reported in 8 Vez. jr. 481, 496. The lord Chancellor Eldon again decided that no case of election was raised against an heir at law, claiming a legacy under a'will, and areal estate devised away from him by the will, but which was imperfectly *300executed under tbe statute, unless there was an express condition annexed to the will, the legatee may take the legacy under the will and claim the real estate also. Lord Eldon said he agreed with lord Kenyon, that the dis* tinction (first made by lord Hardwicke) was such as the mind could not well fasten on, but it was better that the law should be certain, than that every judge should speculate upon improvements of it.

1 am of the same opinion, and shall not attempt to improve the law by my speculations, but shall follow the land marks Í have to guide my mind, in a very difficult subject.

Mrs. H. Snelgrove as one of the heirs under'our act of 1791, was not excluded from claiming her proportion of the land, the devise of which was imperfect, by any express words of the will, attached to her acceptance of the personal estate for life, the bequest of which was good.

The supposed acquiescence attributed to Mrs. Snel-grove by her holding the real and personal estate under a mistaken apprehension that the will was valid, will not bind lier. AH the cases say, that an election (even ■where a party is put to an election) made under mistake shall not bind.

In our own court, that point has been decided in the case of the Executors of Munro against Koger and ai. decided in April, 1805, as I have stated above.

The court said that it was by no means inclined to deprive a woman of her legal lights under the idea of her having made her election, merely by abare acquiescence. But it should be made to appear that she was perfectly conusant of her legal rights, and that she had done clear and positive acts, indicating her having made her election.

One objection oilers *itself to the*mind, which deserves observation.. It has been urged that she has had the full benefit of the will, as to the real as well as to the personal estate, and held both during her life, conforma*-bly to the will. And that her representatives ought not afterwards to be let in to claim her third of the real estate in' fee simple.

*301To this it is answered that this arose out of the er- ,/or of all parties, and was not a fair election made by her when conusant of her rights. That she did not and could not hold the land under a will, not duly executed, but as an intruder, or under an impression of right.

She could have been ousted of two thirds of the land by the children and heirs of testator at anytime if they had pursued their rights. But they neglected them, andi she and her representatives should not suffer by their neglect j nor will the other parties suffer by this decision 5 for her estate will be liable to the payment of the rents and profits of two thirds of the real estate during the time she held the same impropeidy.

Upon reflection, J believe I have not expressed any opinion, as to another objection made to the claim of «orne of the children to a distributive share of the real estate which is undisposed of by this ill executed will.

Henry Snelgrove, the father, bequeaths in that will. 3s. and no more apiece to several of his children. There are no other words of exclusion in the will.

It was contended that the bequest of 5s. and no more, amounted to an absolute exclusion of these children, so that they could not take a distributive share in any undisposed residuum of their father’s estate, to wit, in the landed estate, which is now divisible among the heirs at law, in consequence of the imperfect execution of the will of the father. That these words *“*and no inore,” were a negative upon these children, having any part of the estate of the testator, and would operate upon the real estate as well as the personal, upon what was not actually devised or bequeathed, as upon what was imperfectly devised. The only authority of any importance which I have been able to find directly on this question (but which still does not go the whole length of our case) is that of Vacheli>s. Jeffries, or Breton as it is called in some of the hooks. This case is stated in many of the abridgments, and very imperfectly in most of them. In 11 Viner, p. 194, 5 *;*and in 2 Eq, C. abr. 437, it is stated erroneously. In 8 Viner, 345, and 2 Eq. C. abr. 435, it is correct. But it is most fully, clearly and dis* *302tinctly reported in lBrown’s Pari. Cases, p. 167", under the title of Vachcl and al, *vs.*Breton, Jeffries and al. It appears that the testator bequeathed legacies to two of his children whom ho owned, and also 5s. apiece, and no more, to two children whom his wife had, after a separation between them, and whom ho calls his wife’s children. Part of his personal estate was undisposed of by the will. Two questions were made as to this surplus ; one as to the right of the executor to the. undisposed surplus, ac.-. cording to the English law. It was decided against the executor. But we have nothing to do with that. The other question was as to the right of the two children, to whom 5s. and no more was bequeathed, to come in for equal shares of this residuum with the other two children of the testator.

The Master of the Rolls decided that this residuum should be distributable among all four of the children, On appeal to the House of Lords, the case was fully argued, and the counsel insisted that the words 5s. and no more were negative, and excluded the two children from any part of the surplus. This was denied, and it was said that as the two other children had specific legacies and plate bequeathed to them and no more, they could only take as being entitled as next of kin to their share of the residuum. The House of Lords reversed the decree of the Court of Chancery, and declared the two children to whom 5s. and no more were bequeathed, should not take any part of the residuum. This case undoubtedly scorns to be an authority for the defendants against the claim of the children of Mr. Snclgrovc, to whom 5s, and no more was bequeathed.

But I am strongly inclined to believe that though little notice is taken in The report of the situation of those two children, whose illegitimacy was so distinctly glanced at by the testator, it had much influence in this decree; otherwise the other two children of acknowledged legitimacy must have been excluded *also;*for they also had legacies to which the words “ and no more” were attached. Yet they were let into the enjoyment of the residue, to the exclusion of' the other two. But if this *303case was‘ more decisive than it is, it differs from ours in this essential particular. That 'will was a perfect will,. and the residuum was personal property. In our case the will is imperfect as to real estate, and the residuum in questibn relates to real estate. The words of this will of personal estate (ambiguous at best) cannot operate to debar acknowledged children from their share in the residuum, of real estate, which the law casts upon them.

It is therefore ordered and decreed, that a writ of of partition do issue for dividing the lands of the late Henry Snclgrove, the older into two parts ; one part to Contain a third of the lands, having regard .to quantity and quality, to be set apart as the .share to which the late Honor Snclgrove was entitled under the act of 1791, which shall be allotted to, and held by William Snclgrove, one of the defendants, and such of the children of the late Mrs. Honor Snclgrove, as may not renounce and release their proportions thereof to the said Wm. Snel-grove. And the other two third parts, to be allotted to, and divided among all the children of the late Henry Snclgrove the elder.

And it is further ordered and decreed, that the representatives of the late Mrs. Honor Snclgrove, (being parties to this suit) do account for the rents and profits of two third parts of the landed or real estate of the late Henry Snclgrove, the elder, from the death of the said Henry, until her death. And that they pay over the same to all the children of the late Henry Snclgrove, and their legal representatives, reserving their own proportion.

And that William Snelgrove, the defendant, do account for the rents and profits of one third part of the said real estate, from his mother’s death to this time, and pay over the saíne to the children of Mrs. Honor Snel-grovc and their legal representatives ; reserving his own share. And account for the rents and profits of two third parts of said real estate, from h¡3 mother's death to this time ; and pay over the same to all the children of the said Henry Snclgrove, deceased, and their legal re-*304preservatives, equally to be divided among them, reserv. ing his own share.

And also that the said W. Snelgrove do pay to the Purc^asers of those parts of the said real estate, which he sold, the amount of the sums paid by them for the same, on their making reconveyances of the same.

Ordered that it be referred to the Master to examine and report upon the accounts of rents and profits.

Costs to be paid out of the. estate.

After the opinion of the court was delivered, the counsel for the defendants requested that an issue should he directed, to be tried by a jury, to ascertain whether the last will and testament of Henry Snelgrove, deceased, was duly executed, according to the statute in such case made and#provided, for the disposition of real estates? whereupon the following order was made:

In this case one of the principal questions which árese, was whether the last will and testament of Henry Snelgrove deceased, was duly executed by the testator i» the presence of three subscribing and credible witnesses, according to the *statute;*and the defendant’s counsel having applied to the court to direct an issue to he tried at law, I do therefore order and direct that an issue be made up in the usual form, between Henry Snelgrove, one.ofthe complainants, and William Snelgrove, one of the defendants, to try whether the last will of Henry Snelgrove, deceased, hearing date the 14th day of May, 1T98, was duly executed by the testator, in the presence of three subscribing and credible witnesses, according to the statute prescribing the mode of executing last wills and testaments, devising real estates. And that the said issue shall be tried in Lexington district, wherein the land in controversy lies.

Henry W. Desattssuee.

The parties afterwards compromised.