[Present, Chancellors Rutledge and James.]

NOVEMB. 1807.

#### James R. Pringle, and Eeizabeth his Wife, *vs.*Susannah M’Pherson, Executrix, Colonel James E. M’Pherson, and Henry W. Desaussure, Executors of General John M’Pherson, deceased, and others.

The addition of words to a last will and testament, by interlineation, in the testator’s hand writing-, after the execution of the same, but at what time unknown, by which a bequest of personal property is enlarged, is valid .and operative.

A bequest of certain slaves by name, and their families, restricted to their wives <md children, residing in the same house with them, and not extendedlo grandchildren.

The testator having purciu.sedlj.nds, after the execution ofhis will, they must be divided according to the statute of 1791, as incase of intestacy.

The testator having made contracts for building machines on some oftlie plantations, which he had previously devised specifically, the same must be c.ompleated and paid for out of the residuary estate, after exhaustingthe funds directed to be applied to pay debts.

• The question whether cen; in obliterations of „ clause devising real estate, amounted to a revoc.,tion ofsuch devise, sent down to be tried ^t law, on an issue, *ilevisavit vel non.*And on a special verdict the judgment ofthe court below was, that the obliterations did not, under the circumstances of the Case, amount to a revocation,

THIS was an amicable bill, fib cl to obtain the judgment of the court, onth. construction of the last will and testament of the late General John M’Pherson.

General M’Fherson made and executed his last will and testament on the 21st day of June, in the year 1803, with two codicils thereto, on the 22d June, 1803, immediately preceding his departure from Charleston, on a voyage to Europe.

Pe deposited his will, sealed up in an envelope, with one of the executors, named therein, for safe custody, and on his retumbóme, the will was restored to him, in th^ same state, sealed up as he had left *it;*and he kept it in his own custody, till he sailed for the northwar^, in Au*525gust, 1806, with his daughter Elizabeth, in the ship Rose in Bloom.

On the voyage, the ship was overset in a gale of wind, and many of the passengers were drowned — among them, Cien. M’Pherson perished. His daughter and the other survivors were picked up from the wreck the subsequent ■, , ^ , oay, and carried into New-York.

On the intelligence of Gtn. M’Pherson’s death, his will was sought for, and found at his residence, in Prince William’s Parish, in a pocket book, in his own private desk.

Certain obliterations and interlineatiqns which were discovm d to have been made in the will, rendered it inr dispensable that the opinion of the court should be taken qn the questions which grew out of this state of facts, and on some other points. Accordingly Mr. J. R. Pringle, who bad married Miss E. M’Pherson, filed a bill, tp bring the whole subject before the court.

The bill set forth that the complainant Elizabeth, was the eldest daughter of the deceased Gen. John M’Pbcr-son. That on the 21st of June, 1803, he made his last will and *testament;*and on the 22d, two codicils thereto. That he died on the 24th August, 1806, leaving a large estate, real and personal, part of which was acquired subsequent to the execution of said will. That his will was found in his desk after his death; and that a whole clause, wherein he bequeathed to his daughter Elizabeth, 300 acres of land, part of his valuable Ponpon plantation on Edisto river, %vas obliterated ; yet was quite legible : and there was a subsequent clause in his will devising all his Ponpqn plantation to his two daughters Nancy and Susan, with the exception of the aforesaid 300 acres ; and the said exception was in like manner obliterated. That the time of the obliteration is *unknown;*but it was certainly subsequent to making the said will and codicils. • The testator probably thought this obliteration sufficient to revoke his devise pf the said 300 acres of land to his daughter Eliza-*526betb, and to give it to his younger daughters : but complainants allege that such obliteration must be abortive, as subsequent thereto there was no re-execution of the will, for the said last obliteration was not an independent irrela-tive acb but was connected with, and referred to the other obliteration. That the testator must have intended to ... , *r*1 ' *r*have substituted some other property tor the 300 acres ot land, and until this could be determined, had postponed the re-execution of his said will, more especially as he had a strong affection for his eldest daughter Elizabeth.— The bill further charges that Mrs. Susannah M’Pherson, the widow of the testator, James E. M’Pherson, and Henry William Desaussure, proved the will, and qualified as executors, and received account sales of the crops of rice, cotton, &c. That complainants have applied to them to come to a settlement and division of the estate, that they might have and enjoy what they were entitled to under-said will; but they, though willing to comply, allege that there are matters relative to the will and the estate, which require a determination of this honorable court before they can make such settlement and division. That beside, the doubt and uncertainty of the will, relative to the 300 acres of land aforesaid, there are other obstacles: that the testator bequeathed to his son James, “ *100*negroes, to be drawn by lot, &c.; in which number 100 should be particularly included the nurse Murriah and her children, and her sisters and their children, and the drivers Ben, Cato, and their families.” That the words, “ in addition to the one hundred,” are found to be interlined and added to and after the word “ families but the time they were interlined is not known. That the executors are uncertain of the legal effect of those words so added by interline-ation.

That the testator had by a Written contract, agreed with a millwright to build a rice mill and cotton machine, on a plantation devised to his daughter Elizabeth, in the place of one standing at the time of executing his will, but since destroyed by fire : that he had also ver*527bally agreed with a workman to build a rice machine on his Ponpon plantation, had provided lumber, and had allowed the workman to live or settle oh p'art of the land 1 for the purpose. That the executrix and executor are at a loss how far they may be authorized to carry the above contracts into execution; and out of what fund the . it/- x expense is to be defrayed.

That the same uncertainty occurs with respect to a tract of land in Barnwell district, which the testat- or in his lifetime had purchased at sheriff’s sale,- having previously agreed with W, L. Smith, to whom the proceeds were to be paid upon a certain time of payment or credit. They are also uncertain out of what fund the testator’s debts are to be paid. The complainants pray that the executrix and executors, &c. may answer *;*and that the court would decree an account and division of the real and personal estate; that they may allot unto them whatever of said estate they may be entitled to. That an issue at law may be directed to ascertain their right in and to the said 300 acres of land, and that they may have all such further relief as they are entitled to.

The defendants in their answer admitted the facts generally as set forth in the bill as to the execution of the will,1 and the death of Gen. John M’Pherson, .Arid the defendant Col. James E.- M’Pherson, ’particularly admitted that after the death of Gen. M’Phersori, he went with a’ respectable witness, to the residence of his late kinsman,' in the country, and made search for his last will and testament *;*and that the same was found in a pocket book in a locked desk, with the seal, and signature of the testator, and the signature of the three subscribing witnesses, entire in all respects, as originally executed, except that there was an obliteration by scratching with a pen, of a clause which originally devised three hundred acres of land on Ponpon, to the testator’s daughter *Elizabeth;*and an addition by interlineation, believed to be in the hand writing of the late Gen. M’Pherson, in a bequest of .personal *528estate to the testator’s soil James. The defendants admit» they had proved the will, and qualified thereon as e^eutofsj and admitting the other facts charged, submitted the case and the various questions growing out of the f;lcís» to the judgment of the court.

The clauses in question were as follow: 1

, The testator “ devised to his daughter Elizabeth, three hundred acres, being part of his Newton tract of land, whereof 100 to be tide swamp* one hundred supposed back swamp, and one hundred acres of upland, the whole quantity to be taken from the north east end of the said tract.”

In another clause, he “ gives and devises to his daughter’s Nancy and Susan, as tenants in common, and their respective heirs, &c. all his Ponpoii plantations,, *except the three hundred acres therein before devised to his daughter*Elizabeth.”

When the will was foiind, after the death of General M’Pherson, the whole of the first above recited clause was obliterated by scratching with the pen over every word of it, but in such manner as to leave it distinctly le» gible; and in the clause devising all his Ponpon plantations to his two daughters', Nancy and Susan, as above recited, the words “ except the three hundred acres herein-before devised to his daughter* Elizabeth*” were also in the same manner obliterated, but legible.

The testator in another clause of his said will bequeathed “ to his son James, one hundred of his negro slaves, to be drawn by lot in families from among those usually residing On the plantation Cotton Hall, and its dependencies^ in which number, one hundred shall be particularly included, the nurse Murriah, and her children, and her sisters and their children, and the drivers Ben, Cato, and their families;” To which was added, by interlineation, the following words in the testator’s hand writing, “ *in addition to the one hundred*but when these words were added, is not known — nor is it known when the oblitera» tions abovementioned were made, or that any person but himself had any access to the desk in the interval between the making the will* and the testator’s death; It was *529agreed however, that the words added, are in his own hand writing.

It was álso agreed that the question arising out of the ob-iterations of the clauses in the will, relating to the-real es tate devised to the daughter Elizabeth, should be sent down to be tried by a iurv, under the issue *devisavit vel*, . *. 7. '*, „ *non;*and it was accordingly so sent down.*

The rest of the case came to a hearing in this court,

Mr. Piungle arguéd on the part of the complainants.

The testator gives and bequeaths to his son James, one hundred of his negro slaves, to be drawn by lot from families from those usually residing on his plantation, called Cotton Hall, and its dependencies, in which number one hundred shall be particularly included nurse Murriah and her children, and her sisters and their children, and the drivers Ben, Cato, and their families: the following words aré in the testators hand writing, but not knowta when added; ec *in addition to the one*hundred,.” What 'relation or construction are these words so added to have? It mut be here *530particularly remarked, that the above named negroes, with their children and families, are very numerous, and will tb&refore materially encreáse the extent of the legacy and in a disproportionate degree to what at first appeared the intent of the testator with respect to the shares of his other children, and particularly will diminish the number of the residue of the negroes left to his widow and two younger children. The words so added make such a repugnancy and inconsistency in this clause, that it is is hardly possible to discover with any degree of precision and certainty the testators meaning, in respect to the relation and effect of those Words.- If he had struck otitthe words *“particularly included,”*there would have been no doubt on the subject. But he has let them remain, and it is not to be taken for granted he did so inadvertently or through oversight. Will a court then strike them out on account of the uncertainty and repugnancy they occasion ? I apprehend not. A court may sometimes exercise this discretion of striking out words in a *531will, that create ambiguity and repugnancy, but it is only when it is to favour or support the manifest and reasonable Intent of the testator. But where circumstances warrant, the court will rather retain, give some effect to, and reconcile words apparently repugnant and inconsistent by giving them what appears a just and reasonable application and *r ,<•*, . , , . reierence, Circumstances here seem to invoke andjusti,fy such an interposition and mode of construction.' I think it may with effect be contended that the testator by letting the words “ particularly including,” remain, he intended, they should have some import and effect. A reasonable import and effect may be given to them by referring and applying them to Murriah and her children and her sisters and their children; and that these he meant to include in the hundred; and the words, “ in addition to the one hum dred,” should only be referred to, and apply to the drivers, Ben, Cato and their families. As to the word family, it is susceptible of two different significations. In its more comprehensive meaning, it embraces all those who descend from a common ancestor — a race, a tribe 'or generation. *532In its more limited sense, it is restricted agreeable to its etymology, to those who live in one house. It is probable ^ie testator intended to use it in this sense, to prevent the separation'of husband and wife and their young children, living in the house with them, and needing their care.

'The testator had by a written contract and on certain terms, agreed with a mill wright, to build a rice mill and cotton machine on his plantation, Laureum, devised to his daughter Elizabeth, in the place of one which was standing at the time of executing the will, but since destroyed by fire.

Is this to, be finished, and at the general expense of the estate ?

The contract being in writing, and the terms certain, is obligatory on the estate, and must be on its part carried into execution, and must be paid for in the same manner as the other debts of the testator.

He had also verbally agreed with a workman to build a rice machine on his Ponpon plantation, had provided lumber, and had allowed the workman he had so agreed with, *533to live or settle on part of the land, for the above purpose. Full parole evidence is adduced as to the agreement and precise terms of it.

. _ The contract in this case not having been in writing and the acts preparatory to .the execution of it above stated being altogether on the part of the testator, whereas the partial performance or part execution to take it out of the statute of frauds, should strictly be on the side of the person seeking specific performance, I have some doubts whether this contract was so obligatory in point of strict law on the executors, as to make it incumbent on them to have it executed, and to pay the expences of it, as being a debt of the testator. But at the same time if there should be clear and positive evidence, as to the existence of the agreement, and the precise terins of it, I do not conceive the executors bound to take advantage of the statute, or that they would incur any risque in having the contract' carried into execution, and the expences defrayed out of the funds for paying the other debts of .the testator.

The testator in his lifetime, bought at the sheriff’s sale, in Barnwell district, certain land sold under the decree o£ the court of equity, having previously agreed with Win. Loughton Smith, Esq. to whom the proceeds of the sales were to be paid, for a certain time of payment or credit, Mr. Smith is willing to rescind, or not, the bargain, which appears advantageous to the estate. This property fall? , *534into the residue of the testator’s estate, which is disposed 0f equally among the testator’s widow and children.

The question is, is the sale binding on the executors, and would it be advisable for them to fulfil the terms thereof as agreed on by the testator and Mr. Smith, and k°W *s same t0 paid for ?

I consider the sale to be binding on the executors, and that it is incumbent on them to fulfil the terms thereof. That the consideration money must- be paid as the other debts of the testator.

Mr. PARKER argued for the legatee James M’Pherson.

The principal point now in dispute before the court is, whether Murriah, her sisters, and their children, and the drivers Ben, Cato, and their families, or any and which of them are inclusive or exclusive of the 100 slaves bequeathed by the testator to his son James Í

As the case stands in evidence, it appears thus, viz. — ■ That when the will was executed, the words, “ *in addition to the one*hundred.,” were not then in the will. That these -words were added a considerable time after by the testa* tor himself, but when, not exactly known.

Upon this statement of the case, a natural mind could not hesitate to pronounce in favor of the minor James, that the whole of these slaves were embraced by the super added clause, and that such clause was intended as an alteration or revocation of the preceding word's — “ in which number one hundred shall be particularly included,” so as to make the same be read thus — “ to which number 100, or. in addition to which number 100, shall be particularly added Murriah, &c.”

But the legal mind, disregarding the natural marks of intention, and proceeding by rules and decisions, may be puzzled as to the meaning of the testator, and possibly even inclined to another opinion.

This renders it necessary that a few clear principles should pass in review before the court.

The principles alluded to are these, viz,

*5351st. That no certain rule can be laid down as to the con-atruction of wills, but that they must all depend upon their own circumstances.

2d. That where a latter will is repugnant to a former will, such latter will revokes the former.

■3d. That where the testator expresses himself with am- . . . . biguity or apparent contradiction, that his expressions shall be reconciled, if possible.

Now if we apply the first principle to this case, we shall find it *sui*generis, there being none in the books exactly like it. ,The only cases at all alike to it, are those in which a thing is given by one clause of a will to A. and after-wards in another clause of the same will to B.; upon which the judges have been of different opinions, some saying that the latter clause revoked the former, arid some that A. and B. took the thing as joint tenants.

It is clear that the latter opinion was only a device in the judges, to bring the case within the third principle. But whether this was rightly done or' not, still it cannot apply, the cases are not the same, because there is no person here to take as joint tenant with James. '

But even this laiter opinion has been contradicted by great authorities, and is yet unsettled, as will be presently shewn; so that the present question being unlike to it, is at large as res integra; and even if alike to it, not yet set-tied, and therefore open to discussion.

This will bring us then to the second principle.

Now in applying the second principle, I will shew,

1st. That the decisions which have been given upon the cases at all análogus to the present, to wit; That of a legacy of the same thing to A. and afterwards to B. are so contradictory, that such cases are still unsettled, and therefore open to discussion.

2d. That those decisions which have made-A. and B. joint tenants, have broken the 2d. principle, without bringing their case within the 3d. The authorities I. quote are 2d. Black. Com. 381, *S.*6. Hargreave’s Co. Lit. 112, Note (1.) Plowd. Com. 541. 1 Atks. 417. 2 *536Atk. 374, 5. 3d. Atk. 493, in which books all the cases on the subject are referred to. Here the court will see ^at some ju^Ses arc of opinion that the last clause, will or codicil, which is contradictory to a preceding one on. the'same devise or legacy, revokes the preceding clause, or codicil; whilst other judges hold that the devisees . *. °*or lagatees must take as joint tenants. And others again that neither devisee or legatee can take, for uncertainty, and so the devises and bequests are void.

But in referring to Atkins’ Reports the court will find what is yet mote surprising, to wit: That the great Chant cellor Lord Hardwicke changed his opinion twice on this point. In 1 Atk. 417, he is for the'joint tenancy. In 2 Atk. 374, 5, he is for the revocation, and in 3 Atk. 493, he relapses into the joint tenancy again. Surely then this question is still open.

I must remark, however, that 1 Atk. 417, and 3 Atk. 493, are only *obiter dicta*of Lord Hardwicke; whereas 2 Atk. 374, 5, though not exactly the case of the same lega» cy to A. and B. is nevertheless more close upon that point,- and that he there reviewed that veiy point, and pronounced Swinb. wrong in his law. “

So far then as Lord Hardwicke has decided this points he certainly agrees with Lord Coke, so that the two greatest pillars of law and equity contradict.the point of joint tenancy, and are in favor of revocation, and so far in favor of the minor James.

Every than knows that he may vary his Will as often as he pleases, and that the last will is the only operative will if contradictory to the former. Every practitioner knows how frequently this is done by codicils, and also how often a testator will change his mind or will even in the very act of penning it. And every lawyer admits that if the last will is absolutely repugnant to the former, it amounts to a *revocation, ipso facto.*

If this be so, then it is no sound objection to say that the testator has altered his mind in the very same will, seeing *537that he may vary his will as well in ten minutes as'in ten days. ,

When therefore a testator bequeaths a thing to A. in the first part of his will, and afterwards in a latter part to B. the latter clause forms a case of one will being repugnant to another, as strongly as can be conceived. I speak not , ’ . , r here of an express revocation, but only, of a repugnancy.— That this is the case of one will being repugnant to another is clear, because although but one instrument is made called a will, still the first clause is the testator’s will as to the thing bequeathed ; and the second clause is as much another will as to that thing, as if it had been put into a separate instrument. If indeed it had been placed into another instrument, the case would be exactly the same, seeing that any will and codicil put together, form but one will, and that the grounds on which the authorities in favor of joint tenancy proceed, is that of consistency, which applies as well to a will and several codicils as to one single wilh

Now every man and every lawyer knows that there is as great a difference betwixt a legacy to B. of a whole ánd the half of a thing as there is in a legacy to him solely, and as joint tenant, except the right of survivorship, which tan be defeated at the will of the other.

The truth and fact are so — therefore the one claim is totally repugnant to the other. If so, the one must revoke the other. How then can those Judges dispense with the second principle ? This they certainly do, jn saying B. takes as joint tenant, alias only one half of the thing, when the last clause gave him the whole.

But this is not all, for they certainly do not bring the Case within the 3d principle, unless they can shew that a half is equal to the whole, which is impossible ; and the 3d principle only requires reconciliation, when such reconciliation is proper.

But the slaves in the case under consideration, certainly cannot be divided. There is no person to take in joint te - nancy with James, and as already suggested, there,being no distinction in stop or expression between the slaves *538from Murriah down ta the families of the drivers, all of them must of necessity be either inclusive or exclusive of the one hundred;

With respect *to*the ground on which the opposite cases proceed, it is evident, on inspection, that they proceed fj»om- consistency, which will hold as well where there is a *J 1*will and several codicils, as where there is only one will. But so far as th’e deliberate intention of the testator may be material, it is certain that the same is better manifested in. a codicil after, than in one and the same will, though the testator may be equally determined in both.

Now here, the superadded words are clearly in the na-» ture of a codicil, being written long after.

Now if the testator had made a codicil, and in the same bequeathed those slaves, “ in addition *to*the *100,”*could there have been a reasonable doubt as to his intention and the revocation *quo ad hoc P*I conceive not. The cunning-device of making a half equal to the whole could not apply, there béing no one to take as joint tenant, and no other device suggesting itself to our view.

If then the cases are the same, the law must be the same.

' But it may be objected,- why did not the testator strike out the words, “ in which number shall be particularly included,” if he really meant them to be excluded ?

To this-1 reply, that the will itself furnishes *evidentia rei.*The testator was then *inops*concillu, by the insertion of such clause in his own hand writing, without the knowledge of any one when it was done, and such addition was in its nature more simple, and more quickly to be done than any other alteration.

Upon this ground of the addition, being in nature of a codicil, it may be proper to remark that as to the eases cited on the subject;, those in Co. Lit. 2 Black. Plowd. Vernon, 10 Modern, and Cro. Eliz. and 2 Atks. are all' upon different clauses in the same will. Those in Swinb. and Godolp. Orp. Leg. are upon wills and codicils.

To conclude, the question though very old, is not yet settled, but remains to be settled by this court, who if they *539proceed either on the weight of authorities, or on the reason of the thing, must pronounce in favor of Lord Coke and Lord Hardwicke, and of .course in favor of the minor ’ James. But whether or not the court should so pronounce, still the case of the slaves now before the court, being a case totallv different, the court must pronounce in favor *r , .*/ . ' ’ ‘ ***of the said minor.

The next point in dispute turns upon the word “ families.” This word, it must be admitted, has two significations ; the most common of which is, that which embraces all those who live with a parent in the same house.

It is certain that after once a son has married and settled apart by himself, no one on inquiry of the parent concerning his fatpily, ever alludes to that of his son.

This common acceptation of the word therefore, is the one in which the testator probably used-it. But the very clause now in contest, furnishes evidence of this-being the sense in which it was so used, as the testator in speaking of Murriah’s sisters, speaks of their children, and by using a different expression afterwards, in relation to Ben and Cato, he probably meant to express a different idea. The question therefore is submitted to the court as it is now stated*

As to the other points, it appears that the executors have acted correctly and justly, and that the debts ought to be paid out of the general fund, which is in com.-, mon cases subject thereto.

Mr. Foitp argued for the other defendants.

1st point. The testator gives to his son James, one hundred of his negro slaves, to be drawn by lot in families from among those usually residing on said plantations Cotton Hall and its said dependencies, in which number one hundred shall be particularly included, nurse Murriah and her children, and her sisters and their children, and the drivers, Ben, Cato and their families, *in addition to the one hundred.*

The words “ in addition to the one hundred,” were ad-*540cleci in the testators hand writing, after executing the will, it js unknown at what time.

These added, words are inconsistent with, and rtpug-nant to the former words, u *in ivhich shall be particularly included.'"*For the former would operate to give 100 neSTOes only, the latter to give 100 negroes, and the specified negroes over and above.

Being a bequest of personal estate, the added words would stand' good without a re-execution of the will.— There is therefore no pretence to reject them on any such ground.

This is not a case in which the court can reject or expunge any of the words of the will, for the court can only do that where the real intent of the testator is manifest, and then it is to be done only to advance and give effect to such manifest intent. But here the intent is doubtful and ambiguous, and the court are not possessed of the principle which alone can warrant such an extirpation of words.

Besides, if the court should be disposed to reject any words, they would instantly be at a loss which set of words to reject. If they reject the latter words, it makes all the named negroes inclusive. If they reject the former words, it makes all the named negroes exclusive. And such is the ambiguity of the whole sentence that there is no more room to presume in favour of the one than there is of the other.

The impossibility therefore of determining which set of words ought to be rejected, proves clearly that the court cannot reject either.

They are all therefore the words of the testator, and are tó be construed so as to stand together if possible, and each set of words to take some effect,

There is an intrinsic argument arising.out of this will, almost conclusive against the court rejecting either set of words.

The testator himself, when he saw fit to alter his will by interpolation of new worcis, stiuck out preceding clauses *541where he saw fit, and having done it in one alteration and not in the other, isa proof he intended the whole should stand; and surely the court will not strike out when the testator himself refused to do so.

If it can possibly be avoided, so much effect must not be given to the one as to rob the other of all their applica- . b , „ 11 tion and effect.

Where the full certainty of constructive import cannot be attained, the nearest and most reasonable one must be adopted. Where the certain intentcannot be discovered,the next grade is the most *probable;*and in such case the. most probable must be the most reasonable.

We will now cite some authorities, to illustrate these principles. “ Where the expression in a will is so general as that it would fail from the uncertainty, there the court will restrict the generality of the expression.” 2 Fonb. 349.

There is an old dictum in the books, that where there are two clauses or parts of a deed repugnant, the first part shall be received and the latter rejected. But in the case of a will, the first shall be rejected and the latter re* ceivéd. Sheppard 85, cites the Bishop of Ely’s case. But this rule has had but little countenance in latter times, unless it appears to be manifestly in concordance with the intention of the testator.

In 1st Vern. *30,*Fane and Fane, the determination was according to this rule, but the court gave different reasons for their determination, and manifestly went on the intention of the will, and did not take the rule as substantive and effectual per se.

In 8 Atk. 493, Lord Hardwicke states that where aman in the former part of his will gives an estate to A. arid in the latter part give the same to B. though it is held by the old books, that the latter revokes the former, it has lately been construed to give a joint tenancy, or tenancy in common according to the limitation. See the case. — Vide als© Í Fonb. 444.

The courts of late have predicated their principles of *542construction oa die whole wiii taken together, so much so that Lord Hardwicke in Wealthy v. Bosvill (see Fearne 011 Revises, page 4) states it as a rule “ that it is immaterial which words come first or last, for the construction must be made upon the whole will.

Next, a will doth not speak until the death of the testa- ’ ” \ ' tor, &c. but the construction ought to be made as matters stood at the making of the will. 2 Fonb. 347.

A wil] shall be so construed that every part shall stand together if it may. 1 Fonb. 442, and see the note p. and illustrations there. Now to apply these principles in this case, by giving some effect to all the words. .

If the court will construe the word, including, &c. to extend to “ nurse Murriah and her children and her sisters and their children,” and the closing words, “ in addition to the 100,” to include drivers Ben, Cato and their families, it will come up to these principles, and to the most probable intention of the testator.

The families of the drivers pass as incidental and ac-cessary from the manifest intent of the testator, through the whole will, to avoid separating families.

But should the court give this construction, it will remain for them to determine the import of the words “ their families,”

The *wordfamily,*is indeed of various import. In its most comprehensive signification, it may include the whole connexion of persons lineal and collateral, who have descended from a common ancestor. But this is chiefly when eminent personages are contemplated or spoken of politically or with reference to public acts-, principles or stations: The Gracchi at Rome, the Medici in Italy, the Bourbons, &c.

And the idea conveyed is always in some considerable degree dependent on the circumstances predicated. . . -

Thus in some cases in this court a testator making provision for his children, has been held and construed to intend grandchildren.

Another set of cases where a testator provides, in his \vill *543for his family, have extended that tYord so as to include all the kindred who might take by the statute of distributions.

None of the reasons or principles on which these constructions are bottomed, can possibly apply here, in determining what negroes shall pass under the word family.The testator must be presume d to have understood, and , . . ’ intended to use the word m its ordinary sense: and the ordinary sense as "well as the etymology,- confines the sense to a household, or that connexion that usually dwell toger ther. Johnston’s Dictionary.

It is derived from *familia*“ which anciently signified the servants belonging to one master — afterwards, together with them $ the wife-and children, or what we from this word call a family,- of -which the master was called pater familias,- the mistress .mater familias. Ainswdrth’s large Lat. Diet. i

But here again this will, and the very clause undercon-sideration, furnishes an intrinsic argument in favor of the interpretation we give of the testator’s intent.* Where he intended to include collateral relations, he mentioned *them;*he-gives nurse Murriah, and her children, and her sisters,- and their children. If the word- family would, in his view, have carried the sisters of Murriah and the children. of those sisters, it is presumable he would have used it.

We conclude therefore he means- to give the drivers and their wives and children, which formed their -household:

The next points for consideration are, the contracts the testator had made for building machines.

The rice mill and cotton machine at Laureum, was devised to his daughter Elizabeth. This plantation was furnished- with a machine at the time of making the will, which was afterwards burnt down ; a new machine was contracted for, and the contract was in writing, and obligatory on the testator, and indeed the work begun.

- 1st. Is this contract to be carried on, and perfected-by the executors?

2d. Is the expense to be borne by the devisee or by the estate ?

*544It seems reasonable that the contract should be complied with, and that the estate generally should bear the expense. But this, as well as the question, relating to the lands purchased by the testator, after making his will, are submitted to the judgment of the *court;*to which the executors and members of the family will cheerfully submit, as they have heretofore maintained, and are anxious to preserve the family concord amidst the conflict of jarring interests produced by these tinhappy circumstances.

*

 The issue of *devisavit vel non*was made up, and sent to be tried in Colleton district, where the land lay. The jury found a speqial verdict, stating the facts that the late General John M’Phertón had made and duly executed his last will and testament on the 22d Jane, *1803,*with two codicils, on the 23d June, 1803, in the presence of three witnesses. That after his death, the same was found at his late residence, in his private locked desk; to which it was not known that any other person had access. That it was whole and unaltered in all respects, except that there was an addition of a few words to the bequest of slaves to the testator’s son James, which was believed to be in the hand writing of the testator, [which formed the subject of the above discussion in the Court of Chancery] and except the obliteration above mentioned of a clause in the will, devising a tract of three hundred acres ofland ónPonponto the testator’s daughter Elizabeth; and -another obliteration of the exception of the said 300 acres out of the devise of all the testator’s Ponpon lands, to his two daughters Nancy and Susan. The obliterations were done by scratching over the words o*f the devise with a pen and ink, but in such a manner as to leave the words perfectly legible : that the time when the obliteration was made, or by whom made, was not known with certainty; but the presumption was, ftrid of that opinion the jury was, that the obliteration was made bv the *530testator himself sometime after the execution of the will. The jury ■submitted the question of law, whether such obliteration amounted to a revocation of such devise of the land, to the judgment of the court.

The Court of Equity being-desirous to have the opinion ofthejudg-es of the Court of Common Pleas thereon, the verdict’ and the casé made thereby was argued before that court. ■

,• Mr. Pringle on the part of Mr. James R. Pringle, and Mrs. Elizabeth Pring-le, (late Miss E. M’Pherson.) He admitted that’ consistently with the statute of frauds, and the act of the legislature of this state respecting wills, there may be a revocation, of a will, -or of a particular clause of a will by the mere act of the party, without any witnesses, as by tearing, cancelling, destroying or obliterating, if done with the intent .to revoke; and if such obliteration be of part of the will, the other parts of the will may remain good He also admitted that the circumstances of the present case afford sufficient presumptive evidence that the obliterations were made by the testator himself, with intent to revoke the devise to his daughter Elizabeth, accompanied with the further intent to make a new gift of that which he so intended to take away, to his two daughters Nancy, and Susan, which intent he probably conceived lie-had effected by obliterating the exception in the clause, by which he devised “ all his Ponpon plantations” to them. The question then arises whether such obliterations did produce the effects which the testatoi *531supposed and intended. He contended not. If the effect of the obliteration ofthe exception were to pass to the two younger daughter? Nancy and Susan, the 300 acre? of land, it would in this respect operate as a new gift, .of what before they had no interest in, the plantations having been devised to them in the first instance, as much exclu» sively ofthe 300 acres, as if they had formed no part thereof, but had composed a distinct tract therefrom. But such new gift made sub, sequent to the execution of the will, and being of real estate, could not be legally valid and effectual, the will not having been legally re-executed according to the requisites ofthe statute, or of the act of the legislature, in such case made and provided. Vide the case of Strong vs. Simpson, 3 Bos. and Puller; and Gastrel vs. Smith, 4 Easts’s Re* ports 419.

A succeeding question then arises whether the *300*aeres nqt passing tpthetwQ daughters Nancy and Susan, are to be considei-ed as notha-ving been particularly disposed of by the will, and are subject to go accordingto theresiduary clause; or whether upon the failure ofthe testator’s intent to make anew gift thereof to his daughters Nancy antj Susan, the devise to his daughter Elizabeth was inefficiently revoked? There is certainly some doubt on the subject. If the obliteration had been a self-subsisting independent irrelative act, it would *seem to he**532clear that the 300 acres, in consequence of the obliteration of the clause devising the same to the testator’s daughter Elizabeth, and of {.lie inefficiency of the substituted gift to the two younger daughters, would be sub j ect to be disposed of according to the *residuary*clause of the will. But it appears .in the foregoing view to have been a dependent relative revocation, the obliteration being made in reference to another act intended to be an effectual and valid disposition, that is the obliteration of the exception, hy which the testator seems to have supposed his two younger daughters would have an accession pfth^ 300 acres. The revocation of the devise to the daughter Elizabeth' may not be absolute, as the relative act was not efficacious for the purpose intended. The testator clearly intended to take from the first devisee and to give to the second devisees, and that the premises •should not remain unspecifically disposed of; the revocation, was therefore for a purpose which failed: audit has been held in avarip-iy of cases that where a deiise has been made so as to have legal effect, and afterwards another, by which the former would-be revoked, but the other substituted; and it being evident that the testator using the means of revocation, could n'ot intend it for any other purpose than to give effect to another disposition, though if it had been amereab-atract revocation it would have bad effect, yet the object being only *533to make way for another disposition, if the instrument cannot have that effect, it shall not be arevocation. This reasoning will apply as well to revocations of parts of a will as to a will itself. See Powell on devises, pages 631, &c.; and more particularly pages 637, 8, 9, and 640. *Also, ex parte,*Earl of Ilchester, 7 Ves. 348, and from page 365 to 381 v

Mr. Parker and Mr. Ford, the other counsel for the different members of the family, agreeing in opinion with Mr, Pringle that these ob-literations did not, under the circumstances, amount to a revocation of the devise to the daughter Elizabeth, the question was submitted to the judgment of the court. The Judges of the Court of Common. Pleas, after deliberation, gave their judgment that the obliterations in question did not, under the peculiar circumstances of the case, amount to arevocation of the *devise.*— f.Ex *relatione*

Chancellor Rutledge

afterwards delivered the decree 'of the court:

In this case there are several questions for the considé-ratióri of the court. The first is, the construction to be given to Allowing clause of the testator’s will. I gibe to my son Jámes, &c. audit is admitted by defendant that at a period subsequent to the execution of the will, the testator in his own hand writing, at the end of the clause, has interlined the following words — “ *in addition to the one hundred.’’’’*When the interlining was made is not known, but it is supposed to be after the testator’s return from England; The question is as to the construction to be given to the foregoing clause, with the addition of the Words above mentioned.

If the property mentioned in the clause’ had been real estate, there could be no doubt but that the alterations made by testator would have been ineffectual, as there was no republication of the will agreeable to *law;*but it being personal estate, over which the testator’s power is free from many of the restraints imposed by law on real estate, and the alteration being made by the testator with his own hand, there can be no doubt that it is valid, and may justly be considered as a new modification, of the bequest of that property, not altering the bequest as it regards the estate previously given, but extending testator’s bounty by giving one hundred negroes to his son, independent of those particularly mentioned.

*545According to the rules oí construction, every clause, and every word of the will must be so construed as to effectuate the testator’s intent, if it is consistent with the rules of law. By the addition of the words at the end of the clause, it is evidently the testator’s intent that his son James should take the negroes specially bequeathed over and above the one hundred : and as such his intent is not inconsistent with any rules of law, it must prevail. Indeed it is admitted that the testator had increased his personal property since the making of his will, by purchasing a considera,-ble number of negroes *;*it is therefore presumable that might have induced him to make the alteration in the bequest above mentioned.

With respect to the construction of the word ‘ families,5 we think it best to restrain it to the wives and children of the slaves Ben and Cato, living in the house with them, for as much as testator has himself in the foregoing part of the bequest of Murriah and her sister, confined it to their children, and not extended it to their grandchildren.

As to any inequality that may arise among testator’s children by the construction which we give to this clause, we cannot prevent it, nor is the argument of much weight, seeing that testator himself has not regarded -it in his bequests, having given to his daughter 70 slaves, and to his son 100 slaves, and none particularly to the two youngest children, (tho’ there is a large surplus left for them.)

With regard to the contract for building the machines mentioned in the bill and answer, the debt incurred by testator for the lands purchased from Wm. Loughton Smith, and the remaining debts of the estate, the court are of opinion that after the application of the property specially provided in the will for the payment of the debts, and of the crops of the last and present year, the debts above mentioned must be paid out of -the residuary estate. The real and personal property purchased by the testator after making his will, must be distributed according to law. And lastly, that the costs be paid out of the estate.