#### *William J. Taylor, executor of Powell McRa, deceased,*vs. *Mary M. McRa, A. C. Spain, her committee, Mary McRa and Julia McRa, William Kirkland and Margaret Sarah, his wife, and Duncan McRa.*

Testator, — having a wife, who was a lunatic, and grand-children, but no lawful child, — by the first clause of his will, devised and bequeathed liis whole estate to W. T., in trust for his two illegitimate children; by the second clause he declared, that if the preceding clause should be declared void by any Court in this State, authorised so to decide, then, he gave one-fourth of his estate to his two illegitimate children, and the other three-fourths to his friend and executor, W. T.; by another and the last clause, he appointed W. T., executor, concluding the same as follows: “ to his special kindness and protection, I commit my beloved daughter and son, and invoke for them his most kind attention and protection.” Held,

1. That the committee of a lunatic wife, might, under the Act of 1795, elect to avoid gifts to illegitimate children; but that, in making such election, he was subject to the control and direction of the Court.

2. That the clause, commending the illegitimate children to the kindness and protection of W. T., created no trust in their favor.

3. That if the clause, devising and bequeathing the whole estate to *~W.*T. in trust for the two illegitimate children, should be declared void by the Court, then, W. T. would take absolutely, and discharged of any trust, three-fourths of the estate.

4. That the Court would not permit the committee of the wife to avoid the gifts to the illegitimate children, as the effect of his election would be, not to benefit the wife, but only to vest three-fourths of the estate in W. T.

5. That grand-children had no right, under the Act of 1795, to avoid gifts to illegitimate children.

*97
      *Before*DuNkin, Ch., *at Kershaw, June,*1848.

This case will be sufficiently understood from the decree of his Honor, the Circuit Chancellor, which is as follows :

Dunkin', Ch. — The will of Powell McRa bears date the 11th day of January, 1844 ; and the testator died on the 19th day of May, 1847. The complainant is the executor of the will, and asks that the trusts of the same, as well as of the will of Duncan McRa, may be *“*declared and executed, so far as respects the estates in his hands.” The devisees and legatees of Powell McRa, as well as his heirs at law, are made defendants ; but none of the other parties interested under the will of Duncan McRa are parties to these proceedings.

By the first clause of Powell M’Ra’s will, his whole estate is devised to the complainant in trust to pay his debts, and two small annuities, and to support, maintain and educate his two natural children, called, in his will, Margaret Sarah McRa, and Duncan McRa; and *“ so*soon as either of them become of age, or marry, to convey to each of them one half of my said estate, real and personal, to them, their heirs and assigns forever.”

The second clause is as follows: *“*but if the foregoing clause of this will shall be declared null and void by any Court of this State, authorized so to decide, then, and in that case, I give, devise and bequeath to my children, Margaret Sarah McRa and Duncan McRa, aforesaid, one-fourth part of the clear value of my estate, after the payment of my debts, to them, their heirs and assigns forever.” And after providing for the death of either of them under age, or unmarried, the will proceeds: “ and I give, devise and bequeath the other three-fourth parts of my said estate to my friend and executor, William J. Taylor, to him, his heirs and assigns forever.” The last clause appoints the complainant executor of the will, and concludes : “ to his special kindness and attention I commit my beloved daughter and son, and invoke for them his most kind attention and protection.”

Powell McRa had been separated from his wife for more than thirty years ; and on the 6th March, 1817, complete and mutual *98releases of all conjugal and marital rights had been, on valuable consideration, executed, recorded, and carried into effect; a copy of the instrument was adduced at the hearing, but was not furnished to the Court. John Singleton, the father of Mrs. McRa, was one of the parties to the deed, and Duncan McRa, the father of Powell McRa, was a subscribing witness. Among other provisions of the deed, Powell McRa conveyed thirty slaves to John Singleton, in trust for Mrs. Mary Martha McRa, his wife. Within the last few years, Mrs. McRa has been found of unsound mind, and the defendant, Albertus C. Spain, appointed her committee. The answer of the committee submits, that the testator, “ having a lawful wife, to wit, the said Mary Martha McRa, then living, all gifts or bequests for the benefit of his natural children beyond one-fourth part of his estate, are null and void, by the Act of 1795 ; and that the remaining three-fourths are either distributable among his heirs at law, and next of kin, or vest in the said Mary Martha McRa, widow of the said Powell McRa.’)

The Act of 1795, (5 Stat. 271,) has recently received the deliberate consideration of the Court, in the case of *Hull*v. *Hull)*(2 Strob. Eq. 174,) at Columbia, in May, 1848. “ The general scope and intention of this Act,” says the Court, “ are very evident. Its provisions were intended, so far as the Legislature could safely interpose for that purpose, to prevent a man who had forgotten his domestic duties, from squandering his property upon the object of his perverted affections, to the wrong and injury of his family; and by depriving him of the means of rewarding the associates of his vitiated appetites, or providing for their progeny, to discourage both him and them from entering into such immoral and pernicious connexions.” The Court af-terwards say : “ It was long ago determined, in *Owens*v. *Owens,*(MS.) that the will of a testator in favor of his mistress or illegitimate children, was a good and valid will as to all the world, except his lawful wife and children; and so far has this doctrine been carried, that in *Breithaupt*v. *Bauslcett,*(1 Rich. Eq. 465,) it was held by Chancellor Harper, that the election to avoid it was so completely personal to these parties, that the privilege *99expired with the life of the wife, and could not be exercised by her executor. The instrument is not void, but voidable,” &c.

Many of the circumstances of this case illustrate the propriety of the decision in *Breithaupt*v. *Bauskett.*The right to avoid the will or deed should be subject to the personal discretion of the injured party. “ The object of the Act,” say both Chancellor Harper and the Court of Appeals, in *Hull*v. *Hull,*“ was to provide for the personal support of the wife and legitimate children.” These parties were separated by mutual consent in 1817; and ample support was, by the terms of the deed of separation, secured to the wife ; at least she, and those most interested in her happiness, were willing so to consider it. The property sefi> tied, passed into the possession of her trustee, and so remained*. It was said at the bar, that the illicit connexion of the testator with the mother of his illegitimate children did not commence until seven years after the separation from his wife. By the terms of the settlement of 1817, the wife released and renounced all claim which might accrue to her, on the death of her husband, to any part of his estate. It is not necessary to determine how far the deed is obligatory on the wife ; but it would be a violation of the well settled principles of this Court to permit her to avoid the will, without bringing into the estimate of her husband’s estate, the property settled upon her by the deed of 1817. Being discovert, she ought to have the privilege of determining whether that deed should stand as the final adjustment of her rights in the estate of her husband. But being now, by the act of God, *civiliter mortua,*her right to avoid the will is at least suspended.

But at the time of the death of Powell McRa, in 1847, he left, besides his widow, two grand children, the issue of a deceased son, who are infant defendants. On their behalf it was insisted that, although not within the strict letter of the Act of 1795, their case was within the mischief intended to be prevented by it; and that the terms should be construed to include grand children. On this point, the opinion of Chancellor Harper, in *Smith, Exh'. Farr,*vs. *Hoates et al,*(MS.) at Charleston, in January, *1001829, is very direct; and is recommended as well by the reasoning as by the authority of his name. The testator had left the greater part of his property to two illegitimate children ; and he left also a legitimate grand child. The bill was filed by the executor *to*obtain the direction of the Court, and the question was, whether the case fell within the provisions of the Act of 1795. “The Act,” says the Chancellor, “speaks only of lawful *children*; but it is contended that the case of *grand children*comes within the reasons of the Act, and the mischief to be remedied; and cases have been cited to shew that, in the' construction of wills, the term children has often been laken to mean grand children. It is admitted, however, that such is not the natural signification of the word; but that, in the cases where it has been so taken, it was because the intention so to use it must be necessarily inferred from the context, or from the circumstance that there were no children to whom it could be applied. But there is no such necessity in construing the Act of the Legislature : the Legislature may have intended the case of children alone. There is nothing ambiguous in the term to authorize me to resort to construction,- derived from the spirit and objects of the Act. If the words of a statute are plain, the words must govern ; though it may seem to us that an analogous case, equally requiring a remedy, is left unprovided for. Reasons may be conceived, however, for making a distinction between the cáse of children and grand children. Grand children must have had a mature parent, to whom the duty of providing for them more immediately appertained, and who may have had ability to do so.” The claim of the grand child was, accordingly, rejected; and this decision has been more than once adverted to by the Appeal Court without dissent, although the point has never been the subject of direct adjudication.

But, from another view, it seems to the Court very immaterial, either to the wife or to the grand children of the testator, whether the first clause of the will be, or be not, obnoxious to the provisions of the Act of 1795. In the second clause the testator has provided for the contingency; and in the event that, the devises *101and bequests should only be ruled to the extent of one-fourth of his estate, he devises and bequeaths the remaining three-fourths to his friend, the complainant. It is true that in a subsequent clause the complainant is also appointed executor, and that the children are “ committed to his special care and protection.” It was faintly argued that these words created a trust. But the language of the will is too explicit to be misunderstood. Three-fourths of the estate are devised to the complainant, “ his heirs and assigns, forever,” but “charged with the maintenance and support of the testator’s sister, Margaret Houseal, and an annuity of one hundred dollars besides, from the period of his death.” In all other respects, and for all other purposes, the estate was absolute in the devisee, and the disposition of it left entirely to his discretion. See 2 Story’s Eq., § 1070. It was then argued that this provision was a fraud on the law. In this connection the language of the Court, in *Hull*vs. *Hull,*is pertinent. • In considering the Act, with reference to its general intention, it must be remembered that there are few rights more valued by the citizen, or more universally respected by the Legislature, (of which we have abundant evidence in this very statute,) than the *jus disponendi;*and no construction in abridgment of this right can be conformable to the spirit and intent of this Act, except where the abridgment arises necessarily from the application of the Act to the cases which it describes, or becomes necessary in carrying its provisions into effect, as provisions of a remedial statute. The Act declares the bequest to be void so far as it exceeds one-fourth of the testator’s estate. It is *not*provided that the surplus shall belong to the wife and children. If there is a residuary clause to a stranger, as was held in *Breithaupt*vs. *Bauskett,*the surplus would pass, under that residuary clause, as of airy other property not effectually given. If the policy of the law were not sufficiently vindicated by declaring void, to a certain extent, the intended bounty to the illegitimate children, it is the duty of the Legislature, not'of the Court, to abridge the *jus disponendi*on the part of the citizen. If no trust is established, how can the bequest to the complainant be regarded as a *102fraud upon the law? No one doubts the right of the testator to leave his entire estate to a stranger, regardless of the claims of conjugal or parental ties. His motives, however unworthy, however inexcusable, are not the subject of inquiry. This right would not be impaired or forfeited, because he announces on the face of the will his abhorrence of the law which has checked the current of his bounty in a particular direction. If the provisions of the will are within the prescribed limits; if no more is given to the illegitimate children than the law allows; if the law has not declared that the *surplus*shall be devised to the wife and children; or, as in the Act of 1841, that it should be held for the benefit of the distributees, or next of kin; then it is impossible to declare that the bequest to the complainant is a violation of law or a fraud upon the law.

But, as has been already declared, the provision in behalf of the illegitimate children is not open to impeachment at the instance of any of the parties before the Court.

It is ordered and decreed that the complainant execute the will of Powell McRa, deceased, according to the principles of this decree. Parties to be at liberty to apply for such further orders as may be deemed necessary. Each party to pay their own costs; those of the complainant to be a charge on the estate of his testator.

The defendants, Albertus C. Spain, on behalf of Mrs. Mary-Martha McRa, and the infants, Mary and Julia McRa, appealed from so much of his Honor, the Chancellor’s decree, as established the entire validity of the gifts, legacies, devises and bequests to their co-defendants, Mary Kirkland and Duncan McRa, or on failure of the same, to the complainant; and they moved that the said decree be reformed in this respect — so as to restrain the said gifts, legacies, devises and bequests, to one-fourth part of the clear value of the testator’s estate; and further, that the right of the appellants to the remaining three-fourths of the said estate be established and declared by the decree of this Honorable Court. In support of which motion, they relied upon the following grounds.

*1031. That the said gifts, legacies, devises and bequests, are clearly void, under the Act of 1795, as against the testator’s widow, Mrs. Mary Martha McRa, for the excess over one-fourth part of the clear value of his estate: and that the circumstance of her being a lunatic does not deprive her of the right to avoid the said gifts, legacies, devises and bequests, but only of the discretion to waive her objection to them; and that it is both the right and duty of her committee to insist upon the said objection.

2. That the settlement of 1817 is neither obligatory and binding on the widow, Mrs. McRa; nor, if it were, does it impair her right to avoid the gifts, legacies, devises and bequests aforesaid, under the Act of 1795.

3. That by the well settled rules of construction, the words *“*lawful children,” in the Act of 1795, must be construed to mean *“*issue,” and to include all legitimate lineal descendants; and that the infant defendants, Mary and Julia McRa, are, therefore, clearly entitled, in their own right, to the protection of the Act of 1795, and to avoid the gifts, legacies, devises and bequests aforesaid, as to all but one-fourth part of the clear value of the testator’s estate.

4. That the devise over to the complainant, in the event of the legacies and devises to the testator’s illegitimate children being declared void, is a plain fraud upon the law, and, therefore, a nullity; and that were it otherwise, yet the gift is plainly in trust for the same children, and, therefore, void, for the same reasons which invalidate the direct gift.

5. That his Honor erred in directing the costs of the defendant, A. C. Spain, the committee of Mrs. Mary Martha McRa, and of the infant defendants, Mary and Julia McRa, to be paid by themselves.

*Moses,*for appellants.

*DeSaussure, Chesnut, Smart,*contra.

Wardiaw, Ch.,

delivered the opinion of the Court.

The circuit decree, in this case, is placed on the grounds, 1st, *104that the committee of a lunatic wife has not the privilege to avoid, under the Act of *1795,*the gift, by a testator, to *his*illegitimate children, for the excess of the subject of gift beyond one-fourth of the clear value of his estate ; and *2d,*that the only effect in this case of avoiding the gift, for such excess, would be to vest such excess in the plaintiff, who is a stranger to any trust.

• To establish the doctrine contained in the first ground might do no great mischief in this particular case, but in many conceivable cases, would produce great hardship and injustice. If a wife, having no separate estate, who had been driven to madness by the infidelity and brutality of her husband, were deprived, by his devise to his bastards, of the means of food and raiment, and left to depend upon the charity of the world to supply her destitution, could we,, possessing the reason and sensibilities of human nature,, venture to hold that the committee, under the supervision of this Court, might-not avail himself in her behalf of the provisions of the Act of 1795 ? In the parallel disability of infancy, it is the personal privilege of the infant to avail himself of the plea of infancy to avoid a contract, and yet his guardian may resort to this defence in the infant’s behalf. In the case of *Hill*vs. *Hill,*(3 Strob. Eq. 94,) this Court allowed the committee of a lunatic wife to assert her equity to a settlement out of her estate, and the present case is within the same7 principle. In *Parnell*vs. *Parnell,*(2 Phil. 158,) Sir Wm. Scott adjudged, that the committee of a lunatic may institute proceedings against the 'wife of the lunatic for adultery. It would be a great reproach to this Court, which professes in a peculiar manner to protect the rights of infants, married women, and lunatics, to add additional privation to loss of mind — the greatest affliction of Providence.

But this privilege, by the committee of a lunatic, to avoid gifts under the Act of 1795, must be exercised under the supervision of the Court, which will in a proper case control his election. In general, where it is doubtful whether the interests of the wife will be promoted by such intervention on the part of her com*105mittee, the Court will direct the proper inquiry to be made by its proper officer. This inquiry will usually be confined to pecuniary interests. This Court does not determine questions according to the factitious dictates of a code of honor, or delicacy, but according to settled rules of law and honesty. Still, in the present case, many reasons might be found to induce the Court not to interfere in behalf of the wife, at least *sna sponte.*She is amply provided for; she was separated from her husband for thirty years before the execution of the will; in 1817, her father, interfering in her behalf, received from the husband twenty-four negroes for her sole and separate use, and covenanted in her behalf, and with her written approbation, that she should make no further claim upon the husband’s estate. It may be true that, in this State, under the decisions in *Reid*vs. Lamar, (1 Strob. Eq. 38,) and like cases, this covenant would impose no legal obligation on the wife, although it might be different in England, where the wife has the power to alien and incumber her separate estate. Yet it would hardly be consistent with good faith on the part of the wife, to disturb now a family arrangement, which has been executed for thirty years, the effect of which disturbance would be to throw heavy responsibilities on her father and trustee. It is unnecessary, however, to conclude any thing on this point, as the decree must be sustained on the other ground taken by the Chancellor.

We will not permit the committee here to avoid this gift to the testator’s illegitimate children, for the necessary result would be to vest the estate in the plaintiff. It has been strongly urged, that the alternative devise to the plaintiff, is a mere fraud upon the Act of 1795, and that this appears by the will. It is not pretended that there is any secret trust on the part of the plaintiff for the illegitimate children, and it is conceded, that the gift to the plaintiff makes him the absolute proprietor of the estate, unless the terms of the will create an express trust. The course of Courts of Equity, of late years, has been against the conversion of legatees into trustees, by vague expressions of wishes, or recommendation, in the disposition of the estate; *(Sale*vs. *106
      *Moore,*1 Sim. 534; *Meredith*vs. *Heneage,*Ib. 542 *; Wright*vs. *Atkyns,*1 Tur. & Russ. 143); and here, there is nothing more than a commendation of his children, by the testator, to the kindness and protection of his executor, without reference to the estate, and after a contingent gift thereof in fee. It is said, however, that the gift to the plaintiff, being on the _ contingency, expressed in the will, that the previous devise to the illegitimate children should be declared void by any Court of this State, authorized so to decide, affords indubitable evidence of the purpose of the testator, to evade the Act of 1795. It may be conceded, that such was the purpose of the testator, if, to keep the provisions of his will out of the operation of the Act can be called evasion; but surely it is not the province of the Court to usurp legislative power, and extend the Act to cases not within its enactments. The Act does not declare void, gifts to a stranger by an adulterer, or father of bastard children, and it may be well doubted, whether such abridgment of the *jus disponendi,*would ever have met with the favor of the legislature. Nor does the Act declare, even in cases where the gift is voidable, that the void excess shall go to the wife and children, only that the gift to the mistress or bastards, shall be void for the excess above one-fourth of the clear value of the donor’s estate. Its great object, is to brand and punish incontinence in particular cases, by restricting, to a limited extent, bounty to a mistress, or bastards. If, here, where the devise is not prohibited by the statute, we must nevertheless pronounce it void as an evasion, we in effect pronounce that an adulterer, or father of bastard children, having a wife, or lawful children, must give three-fourths of his estate to his wife or children.

It is objected to our conclusion, that we ratify a scheme by which the purpose of the Act of 1795 may be always defeated. But we do no more here, than we do in every case where we give construction to a statute. It is the duty of Judges to expound and not to make the law ; to declare what cases are within, and what without, legislative enactments; but not to include within these enactments, upon our notions of policy, the cases *107omitted by the Legislature, whether by accident or design. It is for the Legislature and not for us to correct any supposed mischief, in the present state of the law, on this and all subjects.

In *Wadlington*v. Kenner, (MS.) and in two circuit opinions of Chancellor.Harper, one cited in the decree, and the other reported 1 Rich. Eq. 474, it has been decided that grand children could not interpose to avoid gifts under the bastardy Act, and we asquiesce in these decisions.

The fifth ground of appeal is sustained, and it is ordered that the costs of A. C. Spain, committee, and of Mary and Julia McRa, be paid by the plaintiff out of his testator’s estate.

In all other respects the decree is affirmed and the appeal dismissed.

Johnston and Dunkin, CC., concurred.

Dargan, Ch.,

dissenting.

I do not concur with the majority of this Court in the decree which they hawe rendered. The testator, Powell McRa, having a lawful wife and grand children, but no lawful children, gives the whole of his estate, in trust, to pay his debts and two small annuities, and to support, maintain and educate his two natural children, Margaret S. and Duncan McRa ; and so soon as either of them becomes of age or marries, to convey to each of them one-half of his estate, real and personal, to them, their heirs and assigns forever. The will then provides, that if the foregoing clause of this will shall be declared null and void by any Court in this State, authorized so to decide, the testator gives to the said illegitimate children one-fourth part of the clear value of his estate, real and personal, after the payment of his debts, to them, their heirs and assigns forever. In this event, he also gives the remaining three-fourths of his estate to the complainant ; and after nominating the complainant as his executor, he concludes as follows: *“*To his special kindness and attention, I commit my beloved daughter and son, and invoke for them his most kind attention and protection.”

Such is the will. In its construction, several questions have *108arisen. I concur in the opinion .that grand children have no right to vacate the illegal provisions of a will in favor of illegiti-mates. ' If grand children were so entitled, by a parity of reasoning and the same wide construction, remote descendants would have the same right. Such an interpretation would comport neither with the language of the Act nor its objects.

I think, too, that the decision in *Breithaupt*v. *Bauskett*is correct, and that the right to vacate a deed or will, which is in violation of the provisions of the Act of 1795, is personal to the wife and lawful children ; such a disposition is valid against all the world but them ; and their right is so far personal, that it does not survive to the personal representatives of the wife and lawful children. But when it is asserted that the right is personal, in a sense that would forbid a lunatic wife or child from making the claim, or its being made in their behalf, I differ entirely. Such a conclusion is, in my judgment, a most unwarranted inference from the decisions ; which, when they declare that the right is personal, mean only that it is personal in the sense of the legal maxim, *“actio personalis moritur cum*persona.” This clearly is the doctrine, and none other. In the circuit decree it is decided that the lunatic wife of Powell McRa is *civili-ter mortua ;*and being *civiliter*mortua, she cannot exercise her personal discretion in asserting her claim, and that this Court cannot do it for her. I am not aware that a lunatic, in consequence of lunacy, loses any of *his*civil rights besides that of making contracts and testamentary dispositions of his property. The male lunatic cannot exercise any of his political rights and franchises. He has the same rights of person and of property as if he was sane. In the case of an election being necessary, this Court will exercise the right in his behalf. I will not discuss this subject further, but content myself with thus entering my protest against the doctrine of the decree on this point.

I concur in the opinion that, if the complainant takes the three-fourths of the estate given to him, he takes it discharged of any trust. If there were a direct and secret understanding between the testator and himself that he should hold for the *109benefit of the illegitimates, on proof of that, the gift to him should be vacated on the application of the wife. But,, as regards Taylor, no such fraudulent intent or violation of the Act appears upon the face of the will. No trust is created nor legal or equitable obligation imposed. The moral obligation he might or might not fulfil, as his own sense of duty or honor should dictate.

*Bat the*difficulty with me lies in another view of the case. The lunacy not being an impediment, the widow of Powell McRa has a right, under the Act of 1795, to vacate the gifts to the illegitimate children, for the excess over one-fourth of the clear value of the estate. But, by the decree in this case, Taylor’s right, under the will, is superior to that of the wife; while confessedly, and by the decision in *Owens*vs. Owens, approved in this case, the right of the illegitimate children is superior to that of Taylor. The wife and lawful children are preferred to the illegitimates; the illegitimates are preferred to Taylor; and Taylor is preferred to the wife. Here is a circle. In this conflict of claims, why should the preference be given to the person claiming under the executory'devise ? He is not entitled until the wife comes into the Court and obtains a decree vacating the provisions of the will. The wife must have a decree before Taylor’s right arises. And in the self same decree in which her right is accorded to her, it is snatched away and given to another. ■ This is keeping the word of promise to the ear, and breaking it to the hope.

I protest against the decree, because it puts a construction upon the Act of 1795, by which the Act stands repealed, and is virtually expunged from the statute book. This, I am aware, is strong language, but is well warranted by an interpretation which enables any well advised or acute testator to defeat entirely the provisions of the Act. When this decree is reported, it will be a publication to the world of a form, under the sanction of this Court, by which rights of wives-and children, under the Act of 1795, may be completely frustrated. The sagacious and well informed will be thus enabled to evade the law, while *110wills drawn by the ignorant, or without the advice of counsel, will still fall under its operation. Will any wife, or lawful child, hereafter, in the case of a will after this form, come into this Court to vacate its unlawful provisions in favor of the concubine and the illegitimates *1 Cui bono ?*For what purpose should they come ? The only effect of their application, and a decree in their favor, is to give the property to a remainder-man, who may keep it himself, or bestow it where the law has not allowed the testator to bestow it. Strange, inconsistent, absurd doctrine!! that the only effect of a decree of the Court of Equity in favor of a person, is not to give that person the benefit of the decree, but *instantly*to take it away. But why should the wife and lawful children spend money and time in unnecessary litigation, and fruitlessly expose to the gaze and comment of the world their domestic sorrows and wrongs ? They come into Court with the Act of 1795 in their hands. They bring their claims within its provisions. The Court says, yes; you are entitled to vacate the illegal dispositions of the will, and here is a decree in your favor; and then, as it were in mockery, the Court says, this decree in your favor is but the condition|on which the property is to be taken from you.

We have a maxim in our law-books, as old as the common law itself, that it is the duty of Courts in their interpretation of statutes, so to construe them, as to advance the remedy and suppress the mischief. The decision, in this case, withholds the remedy, and provides a way in which the mischief may be perpetrated with impunity.

This Act of 1795, consisting, as it does, of but a few lines, has given rise to much difficult and embarrassing litigation. Questions have risen under it which no human sagacity could have foreseen. The Courts have often been called on for its construction. Decision after decision has been made, and interpretation piled upon interpretation, until the Act is covered all over by interpretations and judicial commentaries. One interpretation has been made the platform of another. Inferences are made from the language of the commentary, instead of the words of *111the Act, the original complexion of which is lost sight of. We have gone on in this way, until we are involved by this case in a perfect labyrinth, which we may break through but cannot unravel. The Act, and all its tall superstructure of judicial construction and commentary, have now fallen down together; for the effect of the present decision is, in substance, to declare that *there*is a form by which its provisions may be defeated and set at naught.

*Appeal dismissed.*