Benton vs. Patterson and Thompson.

"GEORGIA, WILKES COUNTY:

"I, Cecilia Porter, of the County and State aforesaid, do publish and declare this codicil to my last will and testament: "Item. In the event of the death of either of my daughters, mentioned in the preceding and foregoing, without issue, it is my will and desire, that their proportion of the property therein conveyed, revert to and become the property of the survivor or survivors-if two, share and share alike—if one, her's exclusively; and should all three of my daughters depart this life without, it is my will, that the trustee or testamentary guardian, appointed in the foregoing will, deliver over to Caroline Echols, wife of Simeon Echols, the entire amount of the property devised in this my will, to her and her issue, forever. Discretionary power is hereby given to the trustee or testamentary guardian, either to work all the hands jointly upon the plantation whereon I now reside, and divide the proceeds among my children, in just and equal proportions, or to sell the lands and purchase one of cheaper value; if he thinks proper, or at all events to act and do in any manner or way with the property that, in his wisdom, may seem best. This I have inserted in this codicil, in order that he and all concerned may discover that it is my will and intention, that he shall have absolute power and sole control over all and every thing relating to, or in any way appertaining to the provisions of this instrument.

"In witness whereof, &c. 14th January, 1830."

It was farther admitted, that these papers were duly proven and recorded; that plaintiff below claimed that said property levied on was subject; that Judge Floyd ruled that the property was not subject, and ordered the levies dismissed; whereupon, attorneys for Benton excepted, and assigned for error, that in the case made by said record, said property is subject.

POE & STUBBS, for plaintiff in error.

POWERS, for defendants in error.

By the Court.-LUMPKIN, J. delivering the opinion.

[1.] Are the four negroes levied on subject to be seized and sold as the property of Patterson, the defendant in execution?

Benton vs. Patterson and Thompson:

The answer to this question depends upon the construction to be put upon the will of Mrs. Cecilia Porter. If the bequest to her daughter, Mrs. Wilkinson, (at the time of making the will,) now Mrs. Patterson, created an estate tail in these slaves, then, under the Act of 1821, the daughter of the testatrix took an absolute fee, which being held in trust, for her sole and separate use, during her first coverture, vested at the death of Wilkinson, and by virtue of the marital rights, became the property of Patterson, upon her intermarriage with him, and is consequently subject to the fi. fa.

The whole will must be considered together, and it will not do to rest the construction upon any particular clause. Looking, then, to the entire instrument, did the testatrix intend to describe a class of persons who should take in succession, from generation to generation, in all coming time, or did she design to bequeath the negroes to her daughter for life, with remainder, at her death, to her children or grand children? If the former purpose is apparent, and that the object of the testatrix was to entail this property upon the lineal descendants of her daughter, then such intention being unlawful, cannot be executed; but if, on the other hand, the Court should come to the conclusion, that the contrary is true, and that she merely intended to describe the persons who were to take after the death of her daughter, the words of the will will be construed to be words of purchase and not of limitation.

Four tests have been applied by the Courts, for the purpose of ascertaining the nature of the estate intended to be created; and notwithstanding the words of the instrument would, per se, be construed into á limitation, yet they will be held to be words of purchase, either where no estate of freehold is given to the ancestor, or where no estate of inheritance is given to the heir, or where a new inheritance is grafted on the words of entail, or, lastly, where explanatory words are superadded.

Passing by the first three, we propose briefly to apply the fourth test to this will. The whole estate of the testatrix is devised to her trusty friend, Augustus H. Gibson, "as trustee and testamentary guardian," and she wishes it distinctly understood, that it is "exclusively intended for the use and benefit of her three daughters, and their increase, if any." Mr. Gibson is appointed testamentary guardian as well as trustee. Of whom?.

Benton vs. Patterson and Thompson.

Why, the children or grand children of the testatrix, born of the three daughters. These are, manifestly, the increase, if any, designated in this clause. Again, the testatrix speaks of her property being distributed, &c. And I need not remark, that the idea of distribution is antagonistic to that of perpetuity or inalienability. And then, if either of the three daughters die without issue, her portion of the property is " to go to the survivór or survivors—if two, share and share alike—if one, to her exclusively;" and in the event of all dying without increase or issue, the trustee or testamentary guardian is "to deliver over the entire estate to Caroline Echols;" and in conclusion, Mr. Gibson is clothed with plenary powers "to do in any manner with the property that, in his wisdom, may seem best."

It can hardly be believed, that the act to be performed here, by the trustee or testamentary guardian, namely, the delivery over of the property to Mrs. Echols, should all the daughters die without issue or increase, could mean, in the mind of the testatrix, whenever their descendants should become extinct, sooner or later, and without reference to any particular time, or any particu. lar event. On the contrary, we believe the very converse of this proposition is fairly and legitimately deducible from these various superadded words, to wit: that she had reference to the period of the death of her daughters, and to their issue living at that time.

It will be recollected, that the rule in Shelly's case, was made to effectuate the intention of testators, not to disappoint themthat it was established by the English Courts, when estates tail were not only lawful but common. It was, therefore, just to infer, in that country, that the testator intended to create such an estate; but here, if such estates ever did exist, they have certainly been abolished since 1777. Watkins' Digest, 15. For myself, I should hold, that whatever technical words are used in the instrument, whenever the devise over is to a person or persons then in life, as survivor, that they ought to be interpreted to import a failure of issue at the time of the death of the first devisee, and that they do not mean a general or indefinite failure of issue.

And many of the State adjudications in this country have gone. to this extent, rather than adopt an unbending rule which, by implication, would turn an express_estate for life, with limitations over in remainder, into a fee tail, and thus defeat the intention of

Benton vs. Patterson and Thompson.

the testator. I will content myself by referring to the case of Huchison vs. Jackson, (16 Johns. Rep. 382,) because it contains the most thorough examination and elaborate discussion of this whole doctrine that is to be found any where in the books, not excepting even the case of Perrin and Blake.

E devised a farm to his son Joseph, his heirs, &c. forever, and another farm to his son Medcef, his heirs, &c. forever, and added,

it is my will, that if either of my said sons should depart this life. without lawful issue, his share or part shall go to the survivor; and in case of both their deaths, without lawful issue, he gave the property to his brother and sister in England. Joseph died without lawful issue. It was held by the Supreme Court, and their judgment affirmed by the Court of Errors, that the words did not create an estate tail, especially since the Statute abolishing entails, but was a good limitation over in fee, by way of executory devise to the survivor, on failure of issue living at the death of either of the sons.

It will be perceived, that the words in the will of Medcef Eden, the elder, were, " dying without issue;" standing, too, without any other words or circumstances of intention; and is distinguishable in this, as well as many other of its features, from the case presented in this record; and still it was considered, that while estates tail are presumed in England, because allowed by Act of Parliament, that fee simples are presumed in this country, because directed by law. I repeat, that in view of this difference, the Court held, that there was no rigid, inflexible rule of law to wrest the plain and manifest purpose of the testator to one altogether different from what he intended.

Favoring as we do, the intention of the testatrix-and particu larly in a devise of personal property-and gladly taking hold of any words in the will, which will afford a ground for construing the instrument in such a way as will support the devise over, the opinion of this Court is, that it is fairly to be collected, from the language and provisions of this whole will, that Mrs. Porter intended that her daughter should take an estate for life in these slaves, with remainder in fee to her children or grand children, which the record shows are in esse; for the claim is interposed in their behalf, as well as on account of their mother.

Let the judgment of the Superior Court, therefore, be affirmed.

Davis vs. Irwin.

No. 26. DAVID J, DAVIS, plaintiff in error, vs. JANE IRWIN, defendant in error.

[1.] Where a Sheriff sold negroes under executions, at a Sheriff's sale, and delivered one of the negroes to the purchaser, with the understanding that the Sheriff was to call at a certain bank the next morning, and receive a check for the purchase money; when the Sheriff called at the bank next morning, for the check, it was refused, under instructions from the purchaser, because the negro had runaway, or been carried off, the night before: Held, that the Sheriff was liable to be ruled, at the instance of the defendant in the executions, for the balance of the purchase money of the slaves, after paying off the amount thereof, and costs: Held, also, that the delivery of the slave to the purchaser, by the Sheriff, under the circumstances before stated, was a matter exclusively between the purchaser and the Sheriff, with which the defendant in execution had no concern, although her agent was present when the arrangement was made between the purchaser and Sheriff.

[2.] When a rule is made absolute against a Sheriff, for the payment of money, an attachment cannot issue thereon against him, until he is first called on to shew cause why an attachment should not issue.

Rule against a Sheriff, by defendant in fi. fa. for surplus of sale. Decision in Bibb Superior Court, at July Term, 1849, by Judge FLOYD.

D. J. Davis, Sheriff, levied certain fi. fas. upon certain slaves of Jane Irwin, and in May, 1849, he sold Kitty, Mary, and Polly.. The proceeds were enough to pay off the fi. fas. in hand, (and perhaps other claims assented to by defendant,) and then to leave a surplus in his hands. He was ruled, by defendant, to pay over to her said surplus. Davis showed for cause, that by consent of plaintiff and defendant, he levied on certain slaves-among them, Kitty, Mary and Polly; that after the levy, they agreed that Scott Cray should take possession of, and hire out said slaves, for defendant's sole use; that after doing so for some time, said Cray became tired of the trust; that it was then agreed that Wm. Collins should hold them, upon a like trust, and who did so until the day of sale, when said slaves were brought forward by said Wm. Collins, and sold at the prices named, (in said showing,) and that he disposed of the proceeds of Kitty and Mary, but that Polly was not paid for; that she was bid off by A. H. Chappell, and delivered to him in presence of said Collins; that said Collins atVOL. VIII. 20