[Present, Chancellors Rutledge and Marshall]

#### Paul Hamilton, vs. Isaac Peace, and others.

A person wrote instructions to his attornies, to collect the debts due to him, and to divide the money among themselves. They did so in part; but having bonds for large sums, which they could not collect immediately, they divided these' bonds among themselves.

He afterwards wrote other instructions to them to go on collecting, and to divide the money among themselves, and four others, who were his near relations

After his death, they refused to do so, and claimed the whole under the first instructions. , •

Decided that the first instructions, by whatever name called, were so far revocable, that all the funds not actually collected before the second instructions, should go among the seven named in the last.

THE late Paul Hamilton, uncle of the complainant, was an inhabitant of this state, advanced in life, and possessed of considerable property, when the revolutionary war commenced. He was unfriendly to the separation of the colonies from Great Britain; and his conduct in the course of the war exposed him to the resentment of his countrymen. He was amerced twelve per cent, on the value of his estate. When the British troops evacuated *80Charleston,, he left his country, and went to the Island of Bermuda. He had previously lost his only child by *death>*■an<^ ^is nearest relations were his nephew Paul Hamilton, another nephew, of the name of M’Cleod, and three nieces. His nephew, called after him, Paul Hamilton, was ardently attached to the American revolution; and though a youth under age, had distinguished himself gallantly in the partizan war which unhappily desolated the country towards the close of the struggle. His conduct offended his uncle, who, though a respectable man, had strong passions and prejudices. In this state of mind, and under these circumstances, Paul Hamilton, the elder, made his will at Bermuda, in the month of April, 1784; and oivthe 1st day of May, 1784, he drew up and signed a certain instrument or paper;, which he headed and called instructions, directed and addressed to his particular friends, Jsaac Peace, Alexander Chisolm and Norman M’Cleod, (which last was also his nephew,) in which, after giving certain explicit and positive directions and instructions relative to the sale, application and disposal of various parts of his property, real and personal, in this state,, he expressed himself as follows : “ The above said several requests being fully and completely complied with, strictly adhered to, donations paid, and your continuing in punctually remitting to me in Europe the yearly rent arising as aforesaid from my house and lot in Church Street, Charleston, my will is, that my nephew, Norman M’Cleod shall continue to live and occupy my plantation on Edisto Island, together with the slaves, now on the same, to wit: Sambo, August, Sanco, Jack, Sarah, with the stock of horses, cattle, hogs, &c. in short all the implements on the premises ; then it is. my pleasure, and I hereby will and request that my said attomies, Isaac Peace, A. Chisolm and N. M’Cleod, do mutually, unanimously agree with each other to collect, ascertain and receive the rest, residue and remainder of my personal estate, wheresoever and whatsoever. And as they receive the saíne, each to render an account to the other, and mutually and in a friendly *81manner divide the same equal and amongst them, share and share alike. This is *mv*express desire, that they do, and continue to do in full confidence, that they my sqid attornics will yet oblige me in acting in tbe said friendly and faithful manner in future, in complying with my desire, as my attornics during my life, if they survive ; whose friendly and faithful conduct, I have intime past, so happily, so amply experienced.”

*80JANUARY, 1802.

*81In a letter written by Mr. Hamilton to Isaac Peace, dated 5th June, 1786, he says, “ Rice cannot, I believe, be shipped to make a saving remittance ; yet it is better than Indigo, and I think better than any bills, so should you be so happy as to receive in andbe able to furnish me in future with what remains from, as per instructions from Bermuda, per Normand, to wit: The first payment, 700/..for the James Island plantation, and the yearly rent, be it what it will, of my town house, I wish no more. It will be sufficient for me. You know I have received by bill on Champion & Dixon, in part of said 700/. 500/, and now in rice, perCapt. Ball, say 95/. *14s. lid**making 600/i or near it, of the 700/. paid by Rivers: so there remains only about 100/, of that allowance as per instructions aforesaid, with the rent .added, of my house as you may get it paid. This I say is the utmost I desire shall be remitted me here as may suit you to receive it convenient, for you. If you should fail even that, I must.be satisfied, and shall be, as I am convinced you do as well aij though I was present. All this I explain to you to confirm to you, that I do not deviate from my instructions, and the same will be enough for me. As you desire to know if you shall make me another shipment in rice, I answer dont exceed the above if you should ’ receive from Rivers and Pthers; but you shall remit, please let it be in rice or cash, or either, (no bills,) so pray apply all you may receive of my estate, of any person above this allowance to myself, to your own benefit, as directed by the instructions, immediately, and it will give me .pleasure to hear you can help yourselves and families, who I esteem. Shew this *to**82Chisolm and Normand, as my requests to each of you are jointly.”

In another letter, dated 20th Feb. 1788, he says, a You hint the remitting me and giving me notice, in time to make insurance. I thank you, and should you do so, let it be only a moderate amount, even if you fortunately get payment of Rivers and others. I do not require more than you jointly think proper to send me; but as per my desire by instructions per Poinsett, I only wish to be kept free from any claim whatever to answer the two trifles at Befmuda. See the event of the amercement, and then divide part as in your power amongst yourselves, as directed, and in such mode as you jointly or by majority of two agree»”

The attomies of Mr. Hamilton acted under these in-' structions, collected in some of the debts due to him, and made him some remittances, and divided among themselves some of the money collected. Not, however, being able to collect in all the monies due on the bonds of Mr. Hamilton, they thought themselves at liberty, under the instructions abovementioned, to divide among themselves, the bonds themselves. Accordingly on the *1st of*May, 1788, they proceeded to make such division,- and made an allotment of the bonds to the amount of about 4000/. sterling, as appeared by a paper headed “ division of bonds, 1st MajqTP88, the gift of P. Hamilton to I. Peace, N. M’Cleod, and A. Chisolm,” specifying particular bonds to each individual.

It does not appear that any information of this division of the bonds was given to Mr. Hamilton, with whom, however, the attornies kept up a friendly correspondence.

Mr. Hamilton went to Europe from Bermuda, and resided in England; and in the course of time his resentments and prejudices against his nephew Mr. Paul Hamilton the younger, were softened, if not wholly removed ; and he felt disposed to take him into favor, and to give him with others hereinafter mentioned, the benefit of that part *83of his debts which had not been actually collected in, and divided by his attomies, according to his instructions in the year 1784. In pursuance of these intentions, he wrote a letter to I. Peace, A. Chisolm, and N. M’Cleod, dated ¡London, 15th Sept. 1791, in the following words

Letter from P. Hamilton to I. Peace, A. Chisolm, and N. M’Cleod, dated

“ Londop, 15tli September, *‡791.*

As time produceth all things, and a few years occasion changes among us of the human race, Divine Providence has spared me to live and see seven years since I sent my instructions from Bermuda by N. M’Cleod, for your con* ducting and settling my affairs, by calling in my debts, and distributing as directed then by said instructions, of which I have a copy in hand, experience has taught us and others, that the sanguine hopes entertained then, that law and justice \yould immediately after the peace sue* ceed, and debtors be disposed to pay their debts, but that we have been mistaken.

I am now advanced in years, and reviewing the changes of circumstances since the date of the above instructions, the present situation of my relations in Carolina, and their issue and each particular as matters stand now with you there, and with me here, and well knowing your willingness tp pardon my weakness, and to comply with my *will;*It is now as I conceive, I have latterly already expressed it, my will, that you, my attorrnies, Messrs. Peace, Chi-solm, and M’Cleod, together with my three nieces Chris-tiana, Dorcas and Ann, with my nephew Paul Hamilton, be equal partakers and sharers of all my debts due there, as well as due from Thomas Rivers, for niy James Island ]and sold him, as all other debts of whatever kind. And that you, the said seven persons, shall enjoy equally and as speedily as the same can be collected in, or as you may mutually agree to divide the same debts among you.

M¡y last will and testament executed here, corresponds with and expresses distinctly these my new instructions. You, my now three attornies, in case of my decease, are *84then my executors for all my property in Carolina, while *1*nominate others here, so that each party is positively restrained from giving trouble, or meddling- with the other,, On my d>-cease, my ext cutors litre are to transmit one of the two executed wills of the sametenour and date, with other papers to you, with a certain sum of money, also to be divided betwixt you the said seven. Two drafts of my will I have executed for said purpose. *No*debts 9-therwise are to be claimed or paid in Britain from Carolina property — nor in Carolina from my property in Britain. — « The above instructions and my said will and testament are my will, and I hope will be satisfactory to all concerned, ánd to the world before and after my d-.-ath.

Thus much my friends, which in all probability I may never change or alter while I live.

May we ever be enabled to say God’s will be done.

Yours affectionately, *Paul*Hamilton,

This was accompanied by a letter of the same date tq the same persons, and intended to be a more private comt munication. It is in the following words :—

Copy of another letter from P. Hamii.toN to I. Peace, A. ChisolM, and N. M’Cleod, dated

“London, 15tb September, 1791.

You will readily see on 3mm* perusal of the instructions enclosed, that I wish to ease my mind, by Dying to satisfy die world, and individuals also, especially now in age.

As it hath been impossible for you to collect in and distribute my pecuniary property as yet, as formerly instructed, I now mean to pass over the froward conduct of my junior name sake and nephew Paul Hamilton, and place him just equal with, and let him be one of }Tou seven, as expressed, in taking one seventh of all that you, my attor-iiies can collect in future, or mat' have lately collected.

Friend Peace to be made whole for his advance of amercement. No claim to be unpaid ; divide what’s due from Thomas Bivcrs, as well as all old accounts, amongst *85you seven, mutually and equally, and as soon as you are able. Please let my nieces and Paul know this my desire. I wrote you some time ago of selling my house in Gibraltar Row, and of my purchase, and now residing in No. 4, Gumming Place, Pentonville, City Road, London,

Please let this be your direction in future, &c.

P. H.

It does not appear that these letters were communicat-edby the attornies to Mr. Paul Hamilton, jun. Nor is there any proof that they expressed to their constituent Mr. Paul Hamilton, senr. that they were dissatisfied with his new instructions; or considered his first instructions as' irrevocable, and conveying absolute rights to them.

Indeed it is certain that no such pretensions were set up during the life time of Mr. Hamilton, and made known to him, for in his letters to his nephew Paul Hamilton, (with whom he opened a correspondence) in 1793, 5, and 6, he tells him he hopes be will soon enjoy a seventh part of all his pecuniary property in South-Carolina. But it appears that the instructions of May, 1784, were not put on record until the instructions of September, 1791 were *received;*soon after which, to wit: in December, 1791, the former were placed on record, and not the latter. Mr. Paul Hamilton, the elder, died some time in the year 1798, and one-of the attornies communicated to Mr. Paul Hamilton, jun. in a letter of 23d Oct. 1798, the will of his uncle, and the instructions of 1784.

Subsequent to the death of Mr. Hamilton, the attornies set up the pretence that the instrument or instructions of Mr. Paul Hamilton, in May, 1784, contained an immediate, absolute, and irrevocable gift to them — of the pecuniary property of the donor, whether collected on the bonds or not; and that they had made a division among themselves of the bonds in 1788, which was conclusive on all parties.

Mr. Paul Hamilton, jun. taking a different view of the subject, filed a bill inequity against Messrs. Isaac Peace, Alexander Chisolm, and Norman M’Cleod, to compel *86them to account for those debts which had not been actu* aUy collected in and divided, before the new instructions of his uncle, in the . year 1791. The answer denied the right of the complainant to call them to any account, and insisted on the absolute gift of the uncle in 1784.

At the hearing, the instructions of 1784 and of 1791, were given in evidence. Also, many letters from Mr. Hamilton to his attornies, and some of their answers.

Also, his letters to his nephew Paul Hamilton, in 1793, 5, and 6 — in which he expresses his hope that he would soon get a seventh part of his personal estate in Carolina.

Also, a paper, stating a division of all the bonds on which monies were due to Mr. Hamilton, made by the at-tornies among themselves, on the 1st May, 1788, allotting to each certain specified bonds.

Several witnesses were also examined. Mr. ' Glover testified, that Mr. Paul Hamilton the younger, took a very active, part in favour of his country, in the revolutionary war. He entered the service at 16 or 17 years of age. It was known that Mr. Paul Hamilton and his uncle differed on politics; which created disgust and dislike in the mind of the uncle.

Mr. Rivers testified, that he was well acquainted with Mr. Paul Hamilton, the elder, and knows his handwriting. He proved the letters of 15th Sept. 1791, and those of 1793 and 1796, and the instructions, to be in the hand writing of Mr. Hamilton. The witness became a purchaser of part of Mr. Hamilton’s property, to the amount of 1700 guineas, of which 700 were paid down, and the balance payable by instalments, He made some payments before 1791, and some since'1791, to Mr. M’Leod and Mr. Chisolm, wfio lv Id the bonds,

Paul Hamilton, the uncle, lost his only child (a son) about the tim; the British troops invaded this state. He and his nephew differed in political opinions.

Mr. George Tunno testified, that he saw Mr. Paul Hamilton the elder, in l.oudon. He committed to the care of the witness certain papers, which he said were of *87Consequence, and which he read. The witness left England on the 1st October, 1791, and the papers were delivered to Mr. Peace, in Nov. 1791. The purport oí these papers was that his blood relations should have his pro-*r ^*1 perty equally. Witness informed Mr. Paul Hamilton, the nephew, of these facts. When the witness saw the elder Mr. Hamilton, it appeared that he had heretofore thrown off his *nephew;*and that this was on account of the decided part Mr. Hamilton, jr. had taken in favor of his country. He did not state to the witness in conversation that he had changed his mind as to his nephew.

It was argued by Mr. Desaussure and Mr. Gail-LAB.D for the complainant, that this instrument, paper or instructions, of May, 1784, under which the defendants claimed the property of Mr, Hamilton, senr. as an absolute gift, irrevocable by the donor, was of a very doubtful and amphibious nature. It certainly had seme features of a deed, as well as some of a will. The writer himself heads it, instructions to his attornies, with directions for their conduct. But it is manifest that he and the defendants also considered the subject 'as under his control. They continue to correspond on the subject; and he did actually in 1791, make a different disposition of such of the debts as had not been actually collected, received and divided. And the attornies, though he lived many years afterwards, never disputed his power to do so, or remonstrated with him, as attempting to make a new disposition of what he had previously disposed absolutely to them.

This acquiescence shews the light in which they viewed the subj ect. They did not dare to avow to their frit nd, that they claimed the whole, and that he could not dispose of his own property. The court will the m.'re readily give this construction to so doubtful a paper, when it is remembered that this prejudice and exclusion of a nephew, the nearest to him in blood, and bearing his name, was the wretched offspring of a miserable difference of political opinion, which shut up his heart against the merit of a distinguished relative, and excluded him from all share in *88his fortune, for the benefit of persons, two of whom were' entire strangers to his blood, and there was no valuable consideration given. And the conduct of the defendants, in concealing from the nephew, the uncle’s altered temper an(l intentions towards him, which time and better feelings had brought about; and in concealing from the uncle their intention to resist his last instructions in favor of his nephew, and to claim the whole under the first instructions, does not entitle them to any favor. The court will there» fore treat this paper of May, 1784, as an anomolous thing, of no distinct character : and consider it, as the maker of it manifestly did, a thing entirely under his control and revision. If so, it was revocable, and t ein g so, has been revoked by the instructions of Sept. 1791.

Papers of this doubtful kind, partaking partly *of the*nature of wills and partly of the nature of deeds, have been frequently construed wills. See 7 Bacon, 300. Title wills and testaments. Swinburn, p. 6. T. S. wrote a letter, which was construed to be a will. 1 Modern Rep. 117. A deed indented and executed between two parties, was construed a will. A deed referring to a will, is to be taken as a part of the will. This was the execution of a power. See Methuan v. Duke of Devon. 1 P. Wm’s 529 530. In Hodges v. Peacock, 3 Ves. jr. 735, a written paper, signed and entitled, “ Instructions to my friends and executors,” was considered as a part of the will, and proved with the will.

The court will mould the deed or instrument in such manner as to give effect to the true intentions of the donor. The court construed a feoffment to be a will, to give effect to tlie deed. See 2 Ves. jun. 226.

In Ousley vs. Carrol, decided in the Prerogative Court, (noticed in 2 Ves. sen’r. 440,1 a writing in the form of a deed, using the words, giving and granting, was construed to be a will. So in the case of Shargold vs. Shargold, also decided by the Ecclesiastical Court, (see 2 Ves. sen’r. 440, 1.) a deed of gift, but not to .take effect till the death of the maker, with sixpence delivered as a symbol, was de*89cided to be a will. See also Swlnbum on wills, part 1, *VA*sec. 10, page 74.

But it was contended, that call this paper by what name you will, some acts were to be done directly ; and the defendants were expressly directed to collect in the money due to Mr. Hamilton, and to divide it among themselves immediately ; and that this has been done, as to the money collected, and also as to the bonds ; which being in execution of an express order, is final and conclusive. This, however true it may be as to the mono}7 actually collected and divided, (and there is no wish to disturb' that, under any name the paper may bear) cannot be available as to the bonds.

The power was to collect in and divide the money — not the bonds. The division of the bonds was a premature act, not done in pursuance of the power, and is void. All the bonds which remained uncollected, till the new instructions in Sept. 1791, must go in pursuance of these new directions.

Mr. PRINGLE and Mr. Cheves argued for the defendants.

The instrument or writing of 1784, is an absolute gift or grant. 2 B. Com. 440.

The requisites of a gift or grant, in the case of personal property, are words of transfer, possession, assent. 1 Pow. Mort. 27. 14 Viner, 19.

The previous gifts are not conditions, but trusts in the defendants *pro tanto.*The subsequent words relative to the collection and receipt of the debts, are only modal and directory, and create no condition. 1 Powell on Contr. 267.

The effect of these words is done away by the subsequent letters.

All dispositions of property are resolvable into the following ••

1st. Absolute sales.

2d. Conditional estates.

*90If it be a conditional estate, yet it is not revocable,

B. Com. 441, 42.

The nature of a conditional estate is, that it shall be defeated only for a breach of the condition.

The caprice of the donor is not one of the conditions on which it is held.

Conditions are precedent or subsequent. The differ» ence is stated in 2 Bla. Com. 154,163.

If an interest depending on a condition precedent, has' in any case been considered revocable, it was.

1st. In no case where an interest in a specific thing was conveyed, but in cases of contract.

2d. Where the contract had not been at all acted upon, or the condition in no sort or part performed.

3d. Where the convejumce only gave a naked power, not coupled with an interest.

4th. Where there was no consideration. 6 Viner, 482, 83.

. But if the interest in the present case be conditional, it is so on a condition subsequent.

The condition is always subsequent, where possession, (the interest being a personal chattel or chose in action) attends the gift or grant.

Possession, with words expressing a gift or grant, conveys the interest immediately, and vests the estate, which is inconsistent with the nature of a condition precedent.— Such a condition would be repugnant to a vested interest, and void. 1 Pow. Contr. 262.

It is like a feoffment of land, with livery of seisin.

If possession did not carry an immediate and vested interest, then it would be a limitation, not a conditional estate, which would suppose a vested interest in some other person, having a particular previous estate, which could not be without possession.

If A. gives B. *201.*in hand, on condition that he go to Rome, and there transacts certain business on his account, this is a condition subsequent. But if A. promise B. 20Z, on condition that he go to Rome..and there do cer»' *91tain business on bis account, this is a condition precedent. Possession in the one case, makes the difference.

But a condition subsequent, can not be annexed to personalty ; and therefore the interest must be absolute,

Bac. Cond. (D.)

Condition subsequent, is founded on the idea of a reversion, of which there is none in personal property.

If this were considered as a contract, it is such an one as the donor would be compellable to perform, 2 Bl. Com. 441.

As to consideration, see *2*Bl.. Com. 445. 1 Powv Contr. 340, 43.

3d. Gifts *causa mortis.*

4th. Devises or bequests by last will.

By enquiring under which of these the present disposition does not come, we will ascertain under which it does come.

If an estate is not in its original grant or creation, so given as on some contingency to cease and determine, as in the case of conditional estates, or to shift, as in the case of a limitation, where, in the first case, it reverts to the donor, and in the second, it goes over to a remainder man, it will be absolute. See the case of Main and wife vs, .Dickinson, decided in this court.

The gift was absolute, and has been fully executed. It would be quite inconsistent to allow this to be revocable.

The grant being complete, and the property in possession of the donees, they were at liberty to divide the bonds as well as the money, when collected.

The court having taken time to consider, Chancellor Rutledge afterwards delivered the decree of the court;

The questions in this case are whether the paper writing in the bill referred to, signed P. Hamilton, now deceased, dated 1st May, 17'S4, disposing of certain parts of his estate in this state to the persons therein named, was or was not of an executory nature, and revocable, or whether it was not absolute and indefeasible ? And if revoca*92ble, whether the instructions of Sept. 1791, did not abso-Xutoly revoke the former, at least as to such parts as had not been executed agreeable to the directions therein contained? As to its being cf a testamentary nature, although from some of the technical expressions, it might be said to embrace that idea, yet as the acts to be done by the persons, were to be executed as speedily as possible, and in the lifetime of Mr. Hamilton, it cannot be considered as a testament or *will;*nor is it a deed, because it wants some of the requisites essential to a deed. In fact it is nothing more than what Mr. H. intended it to be, viz : Instructions to his attornies. Viewing it then in that light, it cannot but be considered in its nature, as altogether execu-tory, and therefore countermandable or revocable. That Mr. H. looked upon it as revocable, appears upon the face of it; for at the beginning he calls it his instructions to his attornies, for their guide in conducting his concerns ; and desires them to be executed as speedily as may be.— He then proceeds to direct what acts they are to do, all of which being done, he concludes with requesting that they do mutually agree to collect and receive in the rest of his personal estate, and as they receive, each to render an account to the other, and mutually divide the same equally among them, share and share alike. As a further proof that he, and the defendants also, considered the paper in no other light than as instructions, they write to him on the subject of his affairs ; and he in his letters of July, 1788, and February, 1788, directs them what to do, and adds, to divide what they may receive as per instruc-lions. As a more convincing proof that he thought he had still a controuling power over the acts of the defendants, and to dispose of such parts of his estate (his debts particularly) as bad not been received; he by his instructions of Sept. 1791, directs his debts to be divided between his attornies, his three nieces, and the complainant, in equal shares, which instructions he accompanies with a letter to che defendants, to that effect, and by a letter of the aarne dale to com’plt. he says he lias wrote to his attornies,. *93and of which they no doubt would communicate his mind and desires to him as per instructions by Mr. Tunno. Then for the first time the defendants take the alarm; and immediately after the receipt of the letter and these instructions, they conceive the first instructions to be irré-vocable, and have them put on record. What was their subsequent conduct r Did they acquaint the complainant with the contents of the new instructions? They did not. Did they remonstrate with their constituent on his change of sentiments, and set up a claim to that property, independent of his controul? We should suppose they did not. It is rather presumable that they seemed to acquiesce in conforming to the subsequent instructions, and kept him in the dark respecting their real intentions ; for if they had held the same language to him, which they now do to complainant, it is impossible he could have wrote the subsequent letters that he did to complainant in the years 1793-5 and 6; particularly that of *179'$,*wherein he writes complainant that he hopes he will soon enjoy a seventh part of all his pecuniary property due here. There is a mystery in this business which ought to be developed. The defendants have carefully concealed the letters which were *wrote to*them by Mr. Hamilton, subsequent to July, 1788, and their answers thereto. They do not even pretend that they ever informed him that a division had taken place, which it was natural for them to have done. Such conduct was highly unbecoming towards their benefactor, and merits censure,-and-ought not to be countenanced or supported by the court. As therefore their claim is founded on the first instructions, it was incumbent on them to prove that they” had literally complied with them,to entitle themselves to the benefits thereof. So far as they were executed previous to the receipt of the new, and conformable to the directions of the first instructions,' those acts are undoubtedly *good;*but by making a division of the bonds, &c. instead of first collecting and receiving the money due on them, and then dividing it, they have totally deviated from their instructions. As there*94fore the original bonds, &c. were still outstanding, and the. monies had not been received and divided, when the new? instructions were received. by them, we are of opinion, that the first instructions were thereby countermanded and revoked, and therefore decree that the. defendants do account for all such monies as they have received on account of the debts due their constituent, the late Paul Hamilton, deceased, subsequent to the receipt of the instructions of Sept’r. 1791, to ,be divided agreeably t© those instructions. Costs to be paid by defendants.