#### Edward W. North, William F. Purse, and Edward North, Executors of Wm. Wightman, deceased, v. Jacob R. Valk, and Wife, and others.

No distribution, or right of representation among collaterals, is allowable farther down than brothers’ and sisters’ children. The grand child of a brother or sister, is excluded.

Persons in this State do not inherit by the common law, but by the direct force of the statute of distributions; therefore the child of a deceased alien brother or sister, who is naturalized at the time of the descent cast, may inherit real estate under that statute, notwithstanding the alienage of the parent of such child.

Land directed by the testator to be sold arbitrarily, and at all events, shall be regarded in equity as personal estate; but if directed to be sold for specific purposes, and they fail, it will go to the heir as real estate. Or if after such purposes are accomplished a surplus remains undisposed of, the heir will be entitled to it.

Where the real and personal estate is directed to be sold for the payment ofdebts and legacies, and no disposition is made of the residue, the personal estate is first applicable; if it should prove' sufficient, the real estate retains its character, and will descend in the manner indicated by the statute of distributions;-so also of any surplus that might remain, if the sale of the land, or part of it, became necessary.

When a promise of future marriage is made between parties living in a state of concubinage, the continuance of that intercourse will not transform the connexion into marriage.

*Before his Honor Chancellor HARPER, at Charleston, Jime*1837.

William Wigbtman, deceased, who was in his life time possessed of a large real and personal estate, by his will bequeathed various legacies to a considerable amount. The concluding clause of the will -is as follows: “Lastly, for the purpose of paying my *213debts, and discharging the afox-esaid legacies, I direct all monies owing to me to be called in, and all my estate, real and personal, in this State, and in Georgia, or elsewhere, to be sold by my executors, or by such one or more of them as may prove my will in the State, where the property to be disposed of may be.”

The testator makes no disposition of the residue of his estate, which is likely to be considerable. He appoints the complainants his executors. The questions now made to the court, respect the disposition of the residue.

The testator, at the time of his death, left a niece, the defendant, Sarah Valk, (the daughter of a deceased sister, and wife of the defendant, Jacob H. Valk,) who is a naturalized citizen of this State; another niece, Mary Gyles; also the daughter of a sister, residing in London, who is an alien.; and a grand nephew, John A. Gyles, the grand son of a sister, who is a natural born citizen of this State. The defendant, named in the bill as Elizabeth Bath, claims to have been the wife of the testator; and her sons, the defendants, William and John Wightman, to whom she has x-eleased all her interest in the estate, to be his legitimate children.

The questions are, whether the defendant, John A. Gyles, is entitled, under the statute of distributions, to take a share of the personal estate with the defendants, Sarah Valk, and Mary Gyles, and a share of the real estate with the former. He also claims to be exclusively entitled to the real estate as being a natural born citizen, contending that Mrs. Valk, a naturalized citizen, cannot derive title through an alien ancestor. The question is made, whether the real estate directed by the testator to be sold, must not be regarded by the court as personal estate. The last question is whether the evidence,is sufficient to establish a marriage between the testator and the defendant, Elizabeth- Bath, so as to entitle her sons exclusively to his estate as next of kin, and by virtue of her assignment.

The first question was long since determined against the claim of the defendant, John A. Gyles, by the case of Poaug *ads.*Gadsden, (2 Bay, 293,) which, I believe, has been regarded as fixing the law ever since. As the point, however-, has been mooted with some degree of zeal, I shall assign some of the reasons which would *214induce me to come to the same conclusion, if the question were an open one.

Virtually the same question seems to me to have been decided by repeated determinations of the English courts. Our statute provides, that “the children of a deceased brother or sister, shall take among them respectively, the share to which their respective ancestors would have been entitled,” &c. The English statute directing that if there be no wife or children, the estate shall be distributed among the next of kin, or those who legally represent them, provides, “that there be no representation admitted among collaterals after brother’s and sister’s children.” Every argument used to shew that under our act, the word “children” is capable of, and ought to receive, a signification more extended and beneficial than the ordinary one, will apply under the English statute. The very question whether under the statute of distributions, the grand son of a brother would take along with the daughter of a sister, was determined in Pett’s case, (1 P. Wms. 35,) reported as Pett v. Pett, (1 Salk. 250.)

The same doctrine is recognized and settled in Bowers v. Lit-tlewood, (1 P. Wms. 594.) See also Beetonv. Darking, (2 Vem. 168,) Maw v. Harding, (2 Yern. 233,) and Carter v. Crawley, (Sir T. Raym. 496.) Following the English statute as to the limiting of the right of representation, I must suppose our legislature to have used the word “children” in the established sense which the laws had attributed to it. Indeed, in the cases referred to, it seems not *to*have been so much contended that it was capable of a more extensive meaning, as that when the next of kin, to take, were brothers or sisters to each other, then children might come within the terms of the act.

It is true that in some cases, the word “children,” used in a will, had been construed to extend to grand children; but never unless the testator has clearly explained his intention to give it that meaning, as in Royle v. Hamilton, (4 Yes. 437;) or where there are no children to take under the description: as it is said, in Crook v. Brookeing, (2 Vern. 108,) that if there had been no child, the grand children might have taken under the devise to children. *215“Children may mean grand children, where there can be no other construction; but not otherwise.” — By the Master of the Rolls, in Reeves v. Brymer, (4 Ves. 698.)

It is plain, that in the first category of the act relative to the in-testates’ own children, the word is used in the common' sense. When other lineal descendants are meant, they are expressly named. How should I conclude that the word is taken in a different sense in a different part of the act. This is the obvious and popular, as well as the legal sense of the word. It is argued that the use of the word “issue” in the act of 1797, providing for the case of an intestate’s leaving father or mother, and brothers and sisters, serves to explain the sense of the legislature in using the word “children” in the act of 1791. But if the construction of that act had been rightly settled before the passing of the act of 1797, the latter act cannot alter it in a particular, to which its provision does not apply. I have no doubt, however, that construing the acts *in pari material,,*and as one act, the sense of the word “issue” will be restricted to the sort of issue before spoken of, i. e. children; in analogy to the construction of wills, when property is limited to *children,*and then limited over for want of issue, Doe v. Lyde, (1 T. *R. 593.)*

•The claim of John A. Gyles, to inherit the real estate, exclusively, is next to be considered. The argument is that at common law the heir cannot derive title through an alien ancestor, and that the statute 11 and 12, W. 3, c. 6, providing that subjects may inherit or make title through an alien ancestor, applies only to natural born subjects. But persons in this State do not inherit by the common law, but by the direct force of the statute. The very word *heir*has a different meaning with us from what it had at common law. I refer to my opinion in the case of Barksdale v. Bona, (2 Hill’s Chancery, 416) for the reasoning to shew, that the various canons of descent have no application under our statute. The statute expressly declares, that in the case which has occurred, the estate shall go to the children of deceased brothers or sisters. Taken literally, this would seem to include all children of brothers or sisters, whether alien or native. By considering the objects of the act however, that it was intended to distribute *216estates according to propinquity of blood, and presumed nearness of affection, and had no relation to the policy of the State, which forbids unnaturalized foreigners to hold land, we are enabled to make an exception to the latter and exclude such foreigners. But when there is no disability at tbe time of tbe descent cast, but the party is fully competent to take and hold lands, what reason can we imagine for extending the exception?

The defendant, Mary Giles, of London, being still an alien, is excluded from any share of the real estate. The defendant, John A. Gyles, being altogether excluded, has no interest in the question, whether the land directed to be sold shall be regarded as real or personal estate. If the claim of the defendants, John and Wm. Wightman, be not valid, that only concerns the defendants, Sarah Valk and Mary Gyles. It was intimated by one of the counsel for the defendants, Valk and Wife, that they were content to regard it as personal estate, so that Mary Giles might come in equally. I did not' understand distinctly that a decree to that effect was consented to. Indeed, I should not he at liberty to accept such a concession, as it concerns the inheritance of a *feme covert, whom*it is the business of the court to protect, and for whose benefit it always acts. The defendants will he at liberty to act as their kind or liberal feeling may prompt; but sbe can only divest herself of her inheritance according to the forms prescribed by law.

The general rule is well known, that land, directed by the testator to be sold, shall be regarded in equity as personal estate; *hut*this is to be taken, subject to various qualifications.. If the land is directed to be sold, as the cases express it, out and out, as if there were a general arbitrary direction to sell, without any specification of the object of the sale, or of the purpose to which the money was to be applied, this would he evidence of the intention to convert the land into money in all events; but if it be directed to be sold for certain specific purposes, and the purposes altogether fail, as if it be for the payment of debts, and the testator afterwards pays off his debts in his life time, there the lands will go to the heir as real estate. Or if after accomplishing the specified purposes, a surplus of the fund should remain .undisposed of, a trust in this subject, it *217is said, results for the heir. The doctrine will be better understood by referring to the cases. These are referred to, and the doctrine explained by Mr. Cox, in his note to Cruse v. Barley, 3 P. Wins. 22. In the principal ease the testator devised real and personal estate to be sold, gave ¿6200 legacy to his eldest son, and directed the residue of the fund to be divided among his younger children. The eldest son survived his father and died before 21; and the legacy was held not to have vested; nor to have lapsed, so as to sink into the residue. As to this ¿2200, part of the fund, a trust was declared to have resulted for the heir at law. It was admitted in the case, that where an estate is devised to be sold to pay debts, if there be a surplus it shall go to the testator’s heir at law; foras-much as when the debts are paid, the trust is satisfied, and the motive of the testator for the sale of the estate is at an end; and the heir, if he pleases, on laying down the money for the debts, may take the estate himself. There is a class of cases to this effect, when land is devised to be sold for the payment of debts and legacies: If pecuniary legacies be given, and the *residue*disposed of, there, if some of the pecuniary legatees die in the testator’s life time, so that their legacies lapse, these shall sink intothe residuum in favor of the residuary legatees, and not go to the heir at law. The testator is supposed to have intended to convert the real estate into personal, in favor of the residuary legatees, and against the heir at law. Such was the case of Durour v. Motteux, 1 Yes. 321. Such also was the case of Yates v. Compton, (2 P. Wms. 308,) in which it was admitted, that “where one devises lands for the raising of portions for daughters, and the daughters die before they are marriageable, the lands ought not to be sold, but go to the heir at law; so, where the lands are devised for the payment of debts, and the testator himself lives to pay his debts, in such cases there shall be no sale.”

Of this same character appears to be the case of Ogle v. Cook, cited in Fletcher v. Ashburner, (1 Bro. C. C. 501,) and it is said, Mallabar v. Mallabar, (Ca. Temp. Talb. 79.) Where the residue is disposed of, however, if one of several residuary legatees, who take as tenants in common, with no survivorship between them, dies in the life time of the testator, his lapsed share of the residue *218will go to the heir at law, so far as it is devised from the real estate. Such was the case of Ackroyd v. Smithson, (1 Bro. C. C. 503.) The testator devised all his real and personal estate to be sold for the payment of debts and legacies, and disposed of the residue. Two of the residuary legatees died in the life time of the testator; and it was held, that so much of their shares ae was made up of the personal estate should go to the next of kin, and so much as made np of the real estate should go to the heir at law. The subject is fully examined in the argument of Mr. Scott, who seems to have changed the opinion of Lord Thurlow. This was in conformity to the decision in Digby v. Legard, reported by Mr. Cox, in the note before mentioned, as was also the case of Robinson v. Taylor, (3 Bro. C. C. 586.) In Spink v. Lewis, (3 Bro. C. C. 355,) the testator devised real estate to be sold, and the money to be invested in the public funds for ten years, and at the end of that time he gave the same to his next of kin. The next of kin at the testator’s death, who was adjudged to be entitled under the devise, was a brother. He died before the end of the ten years, and the heir at law was held to be entitled to the fund as against the next of kin. See also M'Clelland. v. Shaw, 2 Sch. and Lef. 538.

In this case, the real and personal estate is directed to be sold, for the specific purpose of paying debts and legacies, and there is no disposition of the residue. The personal estate is first applicable for this purpose. If it should prove sufficient, it follows that the defendant, Sarah Yalk, as against her co-defendant, Mary Gyles, will be entitled to the real estate. If it should be necessary to sell the real estate, or any part thereof, she will be entitled to any surplus that may remain after paying debts and legacies.

I come next to consider the claims of the defendants, William and John Wightman. Much testimony was given on the subject of a cohabitation, which existed between the deceased, William Wightman, and the defendant, Elizabeth Bath, some years (from 5 to 8,) previous to the year 1784; in which year he visited England, and it is agreed, that they never cohabited after his return. The testimony, on the part of the defendants, went to shew that during the time mentioned, they lived together as man and wife; *219and treated and recognized each other as such; that he called her his wife; and that she was so reputed by their acquaintances, and went by his name. Some circumstances were much relied on. A silver hook was produced, on which was engraved, the initials E. W. A bible was produced with an entry in the hand writing of the deceased, of the birth of the eldest child, born during their cohabitation, by the name of “Sally "Wightman;” and an entry from the register of the German Lutheran Church, of the baptism of the same child, as the child of “William Wightman, et ux Elizabeth.” Wightman was admitted to have been present at the baptism. On the other side, evidence was produced to shew, that the deceased did not regard or treat Elizabeth Bath, as a wife, but as a mistress, and that she was so reputed among her acquaintances. And I think, the testimony on this side entitled to great weight, though the witnesses are less numerous. The witness, Wm. Purse, from his greater intimacy, as well as apparently greater intelligence, seemed chiefly to be relied on. He is very much corroborated by the defendants’ witness, Ann Gourlay. If he is to be credited, it is certain that deceased and Elizabeth Bath did not regard or treat each other as husband and wife, nor were so reputed by those who knew them best. And this is not inconsistent with the credit of the witnesses on the other side. Many persons seeing them living together, and knowing them but slightly, might suppose, and call them man and wife, while those who had better means of information, might know certainly, that they did not sustain any such relation. Nor is this inconsistent with the circumstances relied on by defendants. As I have said in the case of Stringfellow v. Stringfellow, “the parties might call each other husband and wife, as a sacrifice to decency, and treat each other as such, it being well known to themselves, and every one else, that they did not consider each other as standing in that relation.”

The giving of the engraved hook could amount to no more than this. Then as to the entry in the bible, it is not uncommon for men to desire their illegitimate children to bear their own names. So, as to the baptism; a religious feeling, which an immoral course of life, by no means, always eradicates, might cause them to de*220sire baptism for their child. But decency and propriety would forbid their presenting her for that purpose, as the fruit of an illicit intercourse. Indeed, I suppose, that if it had been communicated to the clergyman, he would have refused the right, so long as they continued their course of life. The evidence against the marriage is much strengthened by the circumstances of their separation, and living apart for half a century, during which time she claimed none of the rights of a wife, nor assumed the name of her supposed husband. If an actual contract of marriage had been proved, as in the case of Jewell v. Magwood, they could not by their own act invalidate it. But when their conduct is relied on to raise the presumption of an actual contract, could any circumstances tend more strongly to rebut such a presumption!

I have so far considered the case of these defendants apart from the testimony of Elizabeth Bath herself. This testimony must be taken with some allowance. Not that I regard her as discreditable. Apart from this connexion there is no impeachment of her character. Her conduct, ever since its termination, was proved to have been unexceptionable, and her character respectable. She has been many years a member of a religious society. But she must speak under the strongest bias, both on account of the interest of her children, and her own reputation; and would naturally, and perhaps unconsciously, colour in the strongest manner, every act or expression of the deceased, which she supposed would tend to extenuate her error, or raise her to the rank of matron; and if she did not wilfully suppress, would make little effort to recollect anything which might make against her pretensions. If the deci. sion of the case depended on the weight to be given to her testimony, I should be inclined to send it tó a jury. But I am satisfied that if the fullest credit be given to every thing she has stated, the conclusion must still be the same. The whole of her testimony negatives the idea of any actual contract of marriage *“per verba de*presentí;” any actual agreement, thenceforward, to stand to each other in the relation of husband and wife, which of itself, according to our decisions, constitutes a marriage. It is plain, from her testimony, and from all the circumstances of the case, that he *221never believed her to be his wife, and that she never believed him tobe her husband; and I cannot conceive of su.ch actual contract under the circumstances. The repeated promises of future marriage, to which she testifies, up to the time of their final separation, when, as she states, he proposed to marry her, if she would accompany him to England, are inconsistent with the notion of any executed contract.

But, it is said, that if there be a promise of marriage, *per verba*defuturo, followed by carnal intercourse, this will constitute a marriage. There existed, however, in this case, the circumstance which also existed in the case of Stringfellow v. Stringfellow. There is no doubt, but that the connexion was adulterous in its commencement. The witness states, that her former husband, Bath, went away soon after the battle of Fort Moultrie, in 1776; and that she heard nothing of him until she heard of his death, some time after the capitulation of Charleston, in 1780. It appears from the church register, that her first child was born in 1779. So that the connexion must have begun a year or two after her husband’s departure, when she had no reason to believe him dead, or herself to be capable of contracting matrimony. Indeed, she does not allege, that she was induced to enter into this intercourse by any promise of marriage. Then the case resolves itself simply into this question, whether, when a promise of future marriage is made between parties living in a state of concubinage, the continuance of that intercourse will transform the connexion into marriage. Of this I cannot conceive. When carnal intercourse follows a promise of marriage, between persons who have heretofore had no such intercourse, the presumption may be reasonable and just, that it was induced by the previous promise, and intended to be in execution of it. But how can any presumption arise, when it is only a continuation of an already subsisting intercourse! The only authority relied on, as seeming to support this position, is from Swinbourne on Spousals, 121, that, though the parties having such intercourse, protest at the time, that it is not in execution of the previous promise, still, in spite of their disclaimer, it shall be held a marriage.

I have not found this in any other authority, and it may, per*222haps, be regarded as questionable. In.the absence of explicit evidence, presumptions are made to establish a contract — to establish the assent of the parties’ minds; but it seems singular, that such assent should be inferred, in spite of an express dissent. But taking it for law, and supposing the Ecclesiastical Courts to have established the rule in favor of chastity, that they will not presume a violation of it, but will convert the intercourse into marriage, in spite of the parties’ disclaimer, how can this apply when all pretension to chastity has already been abandoned! It might be of dangerous consequence, that every careless promise drawn from an infatuated man, in the course of a criminal connexion by, perhaps, a licentious and artful woman, should have the effect of fastening her upon him as a wife. The tendency of this, I fear, would not be in favor of purity of manners, or the sanctity of marriage; but very much the contrary. The whole subject, I think, very much requires the interference of the legislature.

The complainants als.o claim the instruction of the court, with respect to the claim of the defendant, John A. M'Dugal, as against whom the bill is taken *fro confesso.*The testator, in June 1835, contracted to employ him as a manager of his plantation in Georgia, for three years, at a salary of *$1000*per annum, to pay certain travelling expenses, and the expense of the maintenance of his family. Complainants state, that defendant claims the performance of this contract, and submit whether they are bound to perform it. This is not a proper matter-for this court. It is, of course, not a contract, which the court would decree the complainants to perform specifically. If they think it beneficial, or the exigencies of the estate require it, I think they will be justified in performing it; if they do not think proper to do so, or if it should not be in their power to do so, the defendant will be entitled to any damage which he may sustain by the non-performance. The measure of the damages will not, however, be the entire amount of the salary, and emoluments for the whole three years, but according to the actual injury sustained. It would be unreasonable that the defendant should have the whole of this, and still be at liberty to engage in another employment, perhaps equally profitable. If he *223cannot agree as to damages, the defendant must bring his action at law, in which they will be assessedby a jury. It is ordered and decreed, that the complainants proceed to administer the estate of their testator, by paying debts and legacies, out of the personal estate, and if any surplus should remain after such payment, they pay and divide the same equally between the defendants, Sarah Valk and Mary Giles; and if the personal estate should be insufficient for the payment of debts and legacies, that they proceed to sell so much of the real estate, as may be necessary for that purpose, and if any surplus should remain of the proceeds of such sale, that they pay the same to the defendant, Sarah Valk, and that they deliver to the said Sarah Valk, possession of all the real estate which may remain unsold. Costs to be paid out of the estate.

The defendant, John A. Gyles, appealed from the foregoing decree, and moved that the same might be so far modified, that one third of the surplus of the personal estate, after paying debts and legacies, should be decreed to be paid over to him; and one moiety of the real estate be ordered to be delivered, or the proceeds paid over to him, after paying debts and legacies, if a sale of the real estate should be necessary for that purpose. And in support of his appeal, he relied upon the following grounds:

1st. That the use, in the act of 1791, of the word *ancestors,*and not *parents,*as the correlative of children, establishes the true construction of the latter word to be *issue,*or *lineal descendants-,*whilst the omission in the act of any provision, similar to that contained in the English statute of distributions, “that there be no representation admitted among collaterals, after brother’s and sister’s children,” shews it to have been the intention of the legislature, to •avoid the harsh construction which had been given to that statute by the English courts, and to establish in this country a more rational rule, and one which better harmonized with the laws of natural affection and duty.

2nd. That the acts of 1791 and 1797, being in *pari materia,*must be taken and construed together; and the use of the word *issue,*in the latter act, be held to control and establish the sense of the word *224*children*in the former, by a legislative construction, which is binding, at least on all cases subsequently arising.

3d. That under the true legal construction of the act of 1791, the defendant, John A. Gyles, is entitled to the same portion of the undisposed of residue of the estate, real and personal, of the testator, to which the father of the said defendant would have been entitled, if living.

*Bailey*& *Dawson,*solicitors of defendant, John A. Gyles.

*Petigru 8f Lesesne,*complainants’ solicitors.

*Mazyclt, Perronneau Sf Finley,*for defendant Wightman.

*Memminger,*forValk and Wife.

*Curia per*

Johnson, Ch.

This Court concurs with the Chancellor in his circuit decree, and the motion is dismissed.

Chancellor Dunkin having been of counsel in the case, gave no opinion.