*P,v■■■<*;ii — Chancellors Hnsoi-y AÍaxkev;s; and Brísr: c-r,

#### Joseph Dill and Elizabeth *Smith, next*of kin *to*John Dill, vs. Sarah Dill, executrix of John Dill.

SEPTEMBER. 1791.

CASE LXIN.

n‘B' p‘ °'J'“

DECBEE 15Q0IX P- *37-*

Quesüo'n <v. sbluary ^¡J80 £ com.trucfiou efiHA to all ‘e

The complainants hill stated, that John Dill died infixed and possessed of a considerable real and personal estate, and that he. duly executed his last will and testa-snout on the C51h of October, 1780, in and by which he. ma.de. the following *1 i: qisoultionc:■ — »« I give and bequeath unto my wife. Sarah Dill, severe! negro slaves, [by name,] with the future issue of the female slaves, to hold, to her and her heirs for ever. Item, I give and bequeath unto my said wife, the use mid profits cf all that my planta-lion, situated on Stone rivers also, all that my other plantation, commonly called Bill’s BlufTj also, the undmded half part of the plantation situate on Dickson's Island, (o hold, to her for and during the term of her natural lile, and no longer: And at the decease of my said wile, I give the above, plantation called Bill’s Bluff unto my nephew Tolm Bill and his heirs for ever. Item, I give and bequeath, at the decease of my sold wife, unto my son in *238law Thomas Taylor and his heirs for ever, all thatundi-vided half part of the plantation situate on Dickson’s Island; and all the plantation at Stono river, commonly called Turketfs, to hold, to him’ and his heirs for ever. Item, I will and direct that the other undivided part of the tract of land atWappoo, shall be sold as soon as pos* sible after my decease, and the monies arising from the sale thereof shall he equally divided between Jane Elizabeth Taylor and Thomas Taylor, share and share alike. Item, I give and bequeath unto my nephew John Dill, all those my negro slaves, to wit, [naming eight slaves] with the future issue of the female slaves, to him and his heirs for ever: My said wife nevertheless having the use of the said negroes during her life. And all the rest, residue and remainder of my estate, real and personal, whatsoever and wheresoever, which I am possessed of at fae time of the decease of my said wife, and not before, and which I have hereinbefore given and bequeathed to her, shall be equally divided between Jane Elizabeth Taylor and Thomas Taylor, share and share alike, my said wife having as beforementioned the profits of my said lands and negroes during her life. And lastly, I do hereby nominate and appoint my said wife executrix, and two other persons, [whom he names,] executors of this my said will, hereby revoking all other wills by me heretofore made.” — The bill sets forth, that the said John Dill at the time of his death, was possessed of other considerable personal property, besides that particularly meii-tioned in his said last will and testament: That the Tay-lors mentioned therein are the children of Mrs. Sarah Dill by a former husband. It further sets forth, that the said Sarah Dill is the only person who has acted under the will of the said deceaseds That she has possessed herself of the whole of his personal property, as well that to which she is entitled, as that to which complainants are entitled, under and by virtue of the statute of 22d and 23d Car. II. and that she refuses to give to complainants their part or share of the undisposed personal property of testator. The bill further sets forth, that complainants arc the brother and sister, and next of kin of testa* *239toi j prays for a discovery of the personal property not disposed of by the said last will and testament,* and also for distribution thereof agreeably to the above mentioned statute.

To winch hill the defendant put in the following answer: He admits that the said John Dill did duly make and publish such will as in the bill mentioned^ that the testator departed this life without issue then living, leaving the said will unrevoked and unaltered^ that the complainants are the brother and sister and next of kin of the said John Biilj that she has taken upon herself the sole execution of the said last will and testament, and has also taken possession of the whole of the personal property which testator died possessed of, as well that particularly mentioned in the will, as that not particularly mentioned therein: That the Taylors, Jane Elizabeth and Thomas are her children by a former husband.— The defendant refuses to give up to complainants any part of the personal property of the said John Dillj the whole of it being, she alleges, disposed of by the said last will and testament^ and further answering sets forth a former will, made by the said John Dill, in which it appears that the Taylors were at the time of the making thereof the objects of his bounty.

The cause came on to a hearing in September, 1791, and was argued by Mr. Gaillard, Mr. E. Rutledge, Mr. Pringle and general Pinckney for complainants, — and by Mr. Read, Mi*. Ford, and Mr. Besaussure for defendant.

The great point in contest depended on the construction of the residuary claim. For complainants it was contended, that the residuary clause was so vague and uncertain, that it must be declared voidj and if the court declared the residuary clause void for uncertainty, then the complainants would bo entitled under the statute of distributions as next of kin, which was a clear titles otherwise it would be to prefer a doubtful title to a clear one. That if an estate is given to one for life, remainder to another, and it does not say for what term, the person in remainder takes a fee. 3f a person devises to a stranger, after the death of bs wifo, he gives no estate to her by *240implication; sccus if ho devises to bis heir at law. With regard to the devise of the rest and residue of the testator’s real estate, it meant nothing; for he had devised alx his real estate specifically. Subsequent restrictive words are to control prior general words: There are restrictive words in the residuary clause in this bill, which limit .the bequests of that clause to the two Taylors, to the property previously bequeathed to their mother; and prevent the general words of the residuary clause from carrying every thing, otherwise undisposed of, to them. No general introductory words are in this will, whence to infer than the testator intended not to dio intestate with regard to any part of the estate. The heir is not to he disinherited but by plain words. The personal estate, not properly or clearly disposed of, goes to the next of kin by the act oí' law, as the real estate does to the heir at law.

The cases cited for complainants were, 2 Stra. 844. *3*Atk. 8, 231-4. 1 Atk. 496, 231. 3 Burr. *1634. 1*Eq. Cas. abr. 178, 207. Talbot 52, 44. 1 P. Wms. 550-5. 4 Burn’s Eccl. Law, 108. 5 Bac. 522-9. 2 Stra. 1261. 3 Bro. P. C. 257. 7 Bro. P. C. 18.

For defendant it was argued, that a will is to be go construed as to give effect to all its parts. If the construction in favour of defendant is made, it gives full effect to every provision of the will; if not, then a part of the will is made a nullity. The court will not suppose the testa ■ tor had no meaning in the residuary clause under discussion: It will rather seek a meaning with astuteness. It seems manifest the testator meant to dispose of the whole estate; yet the complainant’s construction would defeat such intention; and the bulk of the personal estate would go as undisposed property.

The cases cited for defendant were, *3 Burr. 1541. 3*Atk. 257, 283, 409-62-5. Talb., 157. Cowper, 271, 356. 2 Burr. 767, (as to supplying words;) 2 P. Wms. 194, do. 1 Burr. 38, 50. *5*Burr. 2638-9. 1 Atk. 524, 411. 1 Ves., 325, 107-8. 3 Burr. 1618. 2 Bac. 81.

Chancellor H. Rutledge

delivered the following judgment of the court:

*241BECKEX 11002T. p. Oía

This caso must he determined according to the rules laid down lor the construction of wills, and which have uniformly prevailed. Among others it is a rule, that the construction must be of what appears on the face of the will; that no technical form is neccssaiy to convey the testator's meaning, which must be collected by attending to the several parts of it, and considering and comparing them together; not by an arbitrary construction, but by a violent and strong presumption arising from the several parts of it compared and taken together. A paper was produced and permitted to be read by consent of parties purporting to be a former will of the testator, but the court have taken no notice of it; it was totally revoked by the subsequent will, and therefore ought not to be at al? considered. It was objected, that in the will before us there are no introductory words to shew an intention in the testator to dispose of bis whole estate; but we do not think it at all necessary to have such words introduced. It is to he presumed, when a person sits down to make hia will, that he intends to dispose of his whole estate. Introductory words cannot vary the construction of a devise so as to enlarge the estate of a devisee, unless there are words in the devise itself sufficient to carry the degree of interest contended for; hut wherever they assist to shew the intention of testator, the courts have laid hold of them, as they do of every other circumstance in a will, which may help to guide tlicir judgment to the right and true construction of if. The point before the court, is upon the construction of the residuary clause in the will. It is contended by the complainants, that the residuary clause is so ambiguously expressed that it cannot, but by implication, be construed to dispose of the residue of the personal estate; that the words, “ which I have hereinbefore given and bequeathed to my wife,” are restrictive words, and must have reference to the lands and negroes given to defendant the widow in the former part of the will, wherein the testator had given her an express estate for life. The residuary clause must have some operation; the court cannot reject it altogether, in order to determine that the testator hag; not disposed of his residuary per - *242sonal estate. If it stands, and the construction contend- ^or *s allowed, it would have the effect totally to defeat the devises to J. Dill and J. Taylor, to whom the lands and negroes are given absolutely after tiie death of do-fondant; and it cannot be presumed that the testator, by a general sweeping clause at the end of his will, intended at one blow to destroy all the former devises and bo-quests of his will. Implication is of two kinds, a necessary and a possible one; and if it bo necessary to supply or reject words to make testator’s intent take effect, so as it is consistent with law, the court will make that necessary implication; as the court of king’s bench did in the case of Robinson and Robinson, in which it was determined, that on the true construction of a will, by necessary implication to effectuate the manifest general intent of the testator’s will a devisee should take an estate in fee, notwithstanding the express estate be for life, and no longer; the latter words were rejected to create an estate tail. And in Coryton and Helier, lord Hardwicke by a construction taken from all parts of the will considered together, to imply the usual qualification, if *he should so long lire,*in the disposition of the estate, supplied these words, which had been omitted, as he said, by the negligence and ignorance of the writer. This will is most ignorantly drawn, but it is not so dark as that the testator’s meaning from the whole will taken together may not he discovered. It is observed that the complainant Smith is not taken notice of by testator in any part of his will; and complainant Dill no otherwise than as an executor: From which it may fairly be inferred, that the testator thought he had provided sufficiently for the family by giving complainant’s son a plantation and negroes on the death of defendant. She and her children appear to have been the principal objects of his bounty; the children had lived with him from early infancy, and he seems to have adopted them, having no children of his own. in order to come at the testator’s intention, his whole will must be attended to: He first gives his wife sundry negroes absolutely; and the penner of the will, out of abundant caution, and to secure them, as he thought, most effectually, gave *243them to her and her heirs for ever. In the following clauses he gives her several tracts of hind for life, he then gives oilier tracts to other persons absolutely, reserving however to her an estate for life in them; and also some, negroes, which he had bequeathed to his nephew J. Dill absolutely: Then comes the residuary clause, which is very inaccurately penned; but the court must put suc’t Construction on it as will best answer the testator's intern; for agreeable to the rule in Com. 45, such construction chould be made that all the, words of the will should stand if possible. The court is not conlhied to the order of placing the. words in the will, for to make the sense plainer they should be sometimes transposed. From the ambiguity of the expressions, it would seem as if the testator intended to restrain the bequest to the lands and negroes given in the, former part of the will. It is absurd to calí the lauds and negroes in the foregoing clause's of the will his residuary estate, because they aro bequests of particular parts of his estate; and it would be repugnant and contradictory to those devises, inasmuch as he had be - fore parted with the absolute property by these bequests: And by tbe construction contended for this intent would be entirely defeated, and the first parts of his will overturned. A question is asked, will you reject those words in the residuary bequest? No; but the, court will so construe and expound them that they may hav e effect. *Ay,*the testator from the. preceding clauses in his will, has given his whole real estate to liis wife for life, and some of his personal, although ho had previously disposed of the fee simple to other persons; and as he has by the last, clause given tin* rest, residue and remainder of his real and personal estate, lo J. E. Taylor and T. Taylor after the death of his wife, manifestly under the. idea that he had given it her for life, and by subsequent words say!-, she shall have those lands and negroes for life,. — the. court are therefore of opinion, that according to the rides of construction, comparing and taking together all the clauses of this will, and by attending to the several parts, of it, by necessary implication, a very violent and strong presumption arises, that testator did not intend to leave. *244any part of his estate undisposed of: That as the court ought not to strike out entirely any of the words of the will, yet they shoidd so construe and expound them, that they may have effect. Therefore we think, upon the whole of the will taken and collected together, the intent of the testator in the residuary clause is sufficiently appa--rent, and clear to decree that the residue of the testator’s real and personal estate is well bequeathed to his wife the defendant for life, and after her death to J. E. Taylor and Thomas Taylor. — It was therefore decreed, that the bill be dismissed with costs.

a. b. p. 311.