*23resent*— Chancellors Hutson and Matiiws.

#### Richard Beresford and wife, W. Washington and wife, and others *vs.*Executors of colonel Bernard Elliott.

DECEMBER, 1790.

CASE l/Xi',

it. *n.*p. 269c

Bill to have estaie'and certain pro„pCto complainants

This is a. cane arising out of the will of Thomas Law Elliott. He being seized and possessed a considerable real and personal estate, made and duly executed bis will em the Gsh of December, 1756, wherein, after giving ¡specific, legacy to 1ns wife, he bequeathed as follows: The *■use*of ¡ill hereafter mentioned to his son Thomas EUiottj viz. two tracts of land, (which he describes:) also several negro slaves (by name)- — and the half of all the rest of his personal estate. To the use of his daughter Mary Bel-linger Elliott, two negro slaves, (by name-.) and the. other half q£ his personal estate.

*184Question on the limitations of a bill.

The limitations over, not too remote & void; but within the admissible limits, & good.

Iii case his son Thomas Elliott *“*dies and leaves no lawful heirs of his body, then all the abovementioncd to his daughter Mary B. Elliott, and the heirs of her body; and if. his son leaves any heirs of his body, then to them and their heirs for ever.” In case his daughter *“*dies and leaves no lawful heirs of her body, then all the above-mentioned to his son Thomas and the heirs of his body; but if his daughter leaves.any lawful heirs of her body, then to them and their heirs for ever'.” In case his son Thomas and daughter Mary should both die, *“*and leave no lawful heirs of their bodies,” then the abovementioncd real and personal estate to he equally divided between his, (the testator’s) brothers and sisters, to them and the. heirs of their bodies lawfully begotten, to them and their assigns for ever.”

The testator appointed his brothers John and Charles executors, and died on the 7th December, 1756, leaving .his will in full force and effect. The executors qualified on the will, and possessed themselves of the property. At the testator’s death he left the following family and relations: A wife, — his son and daughter abovementioncd, —two brothers, Charles and John Elliott,. — .and two sisters, the complainant Mary, wife of Robert Rowand, and Sarah, wife of Archibald Stanyarne.

A few months after the death of the testator, his son Thomas Law Elliott died, an infant and unmarried, whereupon the whole estate devolved on the daughter Mary; who in the year 1766 intermarried with Bernard Elliott; on which the surviving executor suffered the said Bernard Elliott to take possession of the estate, and receive the rents and profits thereof.

Mary B. Elliott died on the 11th December, 1774, never having had issue horn alive: On which, it is contended by complainants, that the said Charles Elliott and Mary Rowand, the surviving brother and sister of the testator, (the other brother and sister having died before the daughter Mary, without issue,) became entitled under the will to the whole estate, and the increase thereof, to he divided between them: That being so entitled, they demanded the same from colonel Bernard Elliott, and on *185hi» refusal to deliver up the estate, they filed a bill in chancery for the recovery of the same, in August, 1778; but the suit was abated by the death of colonel B. Elliott, in October, 1778; who left in full foi’ce a will, by which he bequeathed Ms estate to his second wife and his son Bernard. His executors qualified thereon, and possessed themselves of his estate.

Charles Elliott, the brother of the testator 'Thomas Law Elliott, died in January, 1791, having first bequeathed his estate to be equally divided between his wife Ann and his daughter Jane Riley Elliott; the former of whom hath since married Richard Beresford the complainant, and the latter W. Washington the complainant: And they have, upon the death of the executors of Charles Elliott, administered on his estate, with the will annexed. They, together with complainant Rowand, applied to the executors .of colonel B ernar d Elliott for an account of the estate of Thomas Law Elliott, and for the delivery up of the same to them, being entitled thereto under the limitations of his will: But this they have refused to do, and complainants pray for an account of the rents and profits, and of the increase of the slaves, and for the delivery of the estate to them.

The executors of colonel Bernard Elliott admitted in their answer, all the facts stated in the bill; except that they allege, that the inventory of Thomas Law Elliott’s personal estate returned to the office, differs essentially from that filed with the bill of complaint. The defendants also say that sometime after the death of Thomas Law Elliott, Thomas Elliott, the grandfather of the said Mary Bel-linger Elliott died, leaving her by his will one fifth of Ms personal estate, w'hich Charles Elliott took possession of, and kept the same, together with what estate his niece Mary B. was entitled to from her father, until the month of April, 1766, when she intermarried with colonel B. Elliott: And on that event the said Charles Elliott delivered to said Bernard Elliott a number of negro slaves; but the defendants do not know the names or the number of those so delivered; nor which of them came from the estate of *186the grandfather or the father; *nor*which *were*bought with †.|16 profits of the estate of Mary during her minority.

Arguments,

The defendants say, that colonel Bernard Elliott continued in the quiet possession of the property from April *1766,*till August 1778, when and not before *a*suit was brought m the court ot cnancery to recover the pretended rights of complainants; which suit abating by the death of said B. Elliott, has never been renewed till the present suit — wherefore the defendants pleaded the statute of limitations: That-with respect to the discovery of the particulars and amount of the value, interest and profits of the said personal estate of the said Thomas Law Elliott, which came to the hands of the said B. Elliott, the defendants say they have no knowledge of the subject, nor is there any way by which they can come to a knowledge of it; for the inventory of that estate was made nine years before the marriage of B. Elliott with his wife Mary: That the defendants have as good a right to claim of complainant an account of the estate, whilst it was in the hands of Charles Elliott, the executor of Thomas Law Elliott, under whom the complainants claim, and who they are informed and believe, never did account for the profits to colonel B. Elliott, either as executor of Mrs. B. Elliott’s father or grand-father: That many of the negroes of the estate were lost by death or desertion to the British, as the complainant Mr. Rowand himself declared in a memorial to the board of police, which is produced: That colonel B. Elliott and his representatives have uniformly contested the right of the complainants to any part of the estate which said Bernard Elliott obtained by his marriage with Mary B. Elliott, and held an adverse possession: That in any event defendants should not be made liable for the accidents of death or the calamities of war.

The case came to a hearing on the 23d December,. 1790, and was argued by Read and Pringle for complain- • ants; and Marshall, E. Rutledge, and T. Pinckney for defendants.

For complainants it was insisted by Mr. Read, that the limitation over to the brothers and sisters of the tes*187tator, on the event of the death of his children, without leaving lawful heirs of their bodies, is within the limits prescribed by law; and therefore not void, but must take effect. The distinction is, between a dying without issue generally, and a dying without leaving issue at the time of the death of the first taker. The limitation in the will under consideration, is on a dying without *leaving*heirs of their bodies. This, is a sufficient restriction of the limitation, and prevents its being considered an indefinite failure of issue. See Mosely 182, 8. 1 P. Wms. 432. 3 P. Wms. 258. 2 Eq. Cas. 325, 346. 8 Viner 141. 1 Salk. 225. 2 Brown, C. C. 33, 127. The limitation over is good, being confined to a life or lives in being. 3 Atk. 285. 1 P. Wms. 198, 534. 2 Atk. 642. The intention too must have great weight, and that must be collected from all parts of the will. That intention is manifest here, and is not opposed to any rule of law.

Mr. E. Rutledge contended for defendant,

that no case like this had ever been decided by any of our courts of justice: That the devise of the *use*of a thing, is a gift of the thing itself. Butterfield *vs.*Butterfield. There are no words in the will under consideration to restrain the limitation to heirs living at the time of the death. There is a difference between legal and trust estates. Sams *vs.*Mathews decided in this court was a trust estate, Atk. Read *vs.*Snell, Bagshaw *vs.*Spencer, and Colson *vs:*Colson. 1 Vesey 133, 4.

If the answer is taken for true, as the defendants deny any knowledge of the property, and the discrimination of it from other property of the same kind, no discovery is obtained; and the bill must be dismissed, as no decree can he made upon it. No discovery being made, they cannot be let into proof of it: For if the complainants have proofs, and have any right, they have a remedy at common law. See Harr. 45, Bunburry, Alcot *vs.*Thompson. 1 Vesey 446.

Mr. Marshall for defendant contended;

that the limitation over was too remote; and that the limitation over of a personalty, being a vested estate tail, cannot be made; “ A dying without hen's of their bodies,” in this case, *188gave cross remainders. 1 Vesey 155. Vesey, Daw *vs.*Pitts. 2 Atk. 308.

MARCH. 1791.

tli^court! °

Major T. Pinckney for defendants

insisted, tliat the limitation over was too remote. Mathew Manning’s case was ^16 case exeeut01T devises — A trust estate is distinguished from a legal estate. In the first, the intention will be supported on slight grounds — not so in the latter.

Mr. Pringle for complainants in reply.

— He insisted that though this was an executory bequest, depending on a contingency, the limitation is not too remote. The ultimate limitation extends no further than to a life in being, which is permitted. The legal meaning of a failure of issue generally, or indefinitely, is on a failure of issue from generation to generation. The same rule governs executory devises as trusts. Fearn. 378. Executory devise' good, though depending or limited over, on ever so many lives in being. The court favours the preservation of the limitation over, if it can he done legally, because that gives effect to the testator’s intention. The court has always laid hold of any words to tie up the generality of a dying without issue; and confine it to a dying without issue at the time of the death. 1 P. Wms. 433, 664. Forth *vs.*Chapman, which is a leading case. 3 P. Wms. 3 Atk. 283, 396. If the words had been a dying without issue, the limitatipn would have been too indefinite, and' therefore void, and the estate would have vested in the first taker, Mrs. Mary B. Elliott. But the words are, dying without leaving issue — The word ‘leaving,’ restricts the clause to a dying without issue, at the time of the death taking place, agreeably to the case of Forth *vs.*Chapman. 2 Atk. 646. 6 Bro. P. C. 309. D. and East, 593. 2 do. 720. Leaving issue, a good limitation. Fearn. 368, 371. The same rules govern legal, as trust estates. Fearn. 354. 1 Eq. Cas. 192. 2 Vesey 646.

The court delivered its opinion as follows — “ This case i» comprised within a very narrow compass, viz. Whether the limitation over to the brothers and sisters of the testator T. L. Elliott, is so remote a contingency) as will not be favoured in law, whatever might have been *189his intention. It is a well known rule, that in the Construction of wills, the testator’s intention is to prevail, if not against the rules of law. The intention of the testator in this case, to give the estate to the brothers and sisters on the death of his children, without issue, is as plain as words can make it. The question then is, does the rule of law interpose its authority, to prevent the operation of such intention? That it does and renders the limitation void, by reason of the remoteness of the contingency, and the generality of the Words, has been very ably argued, and many authorities quoted in support of such argument. To go into a minute investigation of them, would, we think, be unnecessary; as the case is to be decided on a very plain rule of law; one that is as old as the law itself, and which has never been impeached on any fair grounds — ¥e mean the construction of limitations: and where they have been confined to lives in being, they have ever been admitted to take their full operation. We therefore find no difficulty in our minds, when we say, that in the present case, the limitation over to the brothers and sisters of T. L. Elliott, being confined to lives in being, and some of whom were actually in being at the time, (and one is so still,) the estate ought to have vested in them, viz. on the death of Mary B. Elliott, without leaving issue, is such a limitation as always has been, and must now be supported. And if this doctrine should ever be reversed, it appears to us, that it would impeach most of the estates in this country now held under wills, which have received the same construction we have now given to the present; though perhaps not by judicial decisions. As to the generality of the words being such as renders the limitation void on that account, and vests the estate in the first taker, in nature of an estate tail, we can by no means admit this to be the case, because from several decisions in this court, viz. in the case of Ladson and others *vs.*Executors of Smith; Sealy and others vs. Executors of Ball; and Sams *vs.*Mathews and others; and in thé court of common pleas, the case of Keating *vs.*Reynolds, the words of the wills (on which the decisions of those cases were founded,) were more general, and envel*190oped in greater obscurity than in the present case; yet the intention of the testator governed in all those cases, on account of the liberal construction that was given to the words of the will. In the present case, the words “ and should die and *leave*no lawful heirs of their body,” we conceive so far impugn the generality of the other words of the will, as takes it out of the rigid rule of law, and makes way for the equitable construction we have given them, viz. *leaving no issue*at the time of their death, at the samé time it lets in the limitation as far as it goes to the lives in being. We therefore think the limitation to the brothers and sisters of T. L. Elliott, is good, and such of them as were entitled must take accordingly. Let it be referred to the mastei’ to enquire what part of the personal estate of the testator, Thomas Law Elliott, came into the possession of Bernard Elliott, deceased, on his intermarriage with Mary Bellinger Elliott; what remains of said estate in possession of the executors or representatives of the said Bernard Elliott; and what have been the profits of the labour of the negroes since the death of Mary Bellinger Elliott, and report accordingly.

it. b. p. 276.

Order of reference.

*AUGUST. 1791.*

3i. B.p. 297.

.Decree.

Afterwards the master’s report was made and read, and on motion of Mr. Read, solicitor for complainants, ordered that the same be confirmed; that the defendants deliver over to complainants the fifty-four negroes first mentioned in the list’ annexed to the report: That they account for the other fourteen negroes, at the rate of fifty pounds each; and that they pay over the sum of four thousand pounds to the complainants, in three annual payments, with interest from the 18th March last, reserving the share of the negroes which are claimed by the complainant R. Beresford; and also the share of the four thousand pounds in right of his wife, till the further order of court, and that the defendants do pay the costs of this suit