Riordon vs. Holiday and others. By the Court-WARNER, J. delivering the opinion.. [1.] The main question involved in this case is, the proper construction to be given to the second clause of the testator's -will. For the plaintiff in error, it is contended, that it was the intens tion of the testator, that the property should be held by his three daughters for life, severally, by respective shares, and as each of them should die, the part of the one so dying, should be divided between her children, except Elizabeth Russel's share, which, in the event she died childless, was to be divided between the children of the other two; but in no event was the survivor of his three daughters to have the possession of all the property. For the defendant in error, it is insisted, that the testator never intended, by any fair construction of his will, that the property should be divided between his grand children, until after the death of his last surviving daughter. Elizabeth Russell died childless, and Jarva Lane is also dead, leaving six children. Frances Holiday is yet living, and has children. This bill is filed by one of the children of Jarva Lane, by her guardian, to recover the one-sixth part of one-half of the property bequeathed by the testator, under the second clause of his will, The second clause of the testator's will is in the following words: "I lend the following negroes, Esther, Eliza, Fanny, Milly, Sarah, Jinsey, Frank, John, Hannah and little Esther, with all their increase, to Frances Holiday, Elizabeth Russell and Jarva Lane, children of my first wife-this loan to continue during their natural lives, and at their death, the property to be equally divid ed among the children of Frances Holiday and Jarva Lane; and in the event of Elizabeth Russell having child or children, they also to have one-third part, but if the above named Elizabeth Russell die childless, the whole of the property then, shall go to the children of Frances Holiday and Jarva Lane. It is my desire, that John, a negro boy, (one of the negroes mentioned in this article,) should go into the possession of Jarva Lane, and be considered so much of her part. It is my desire, also, that no part of the above mentioned property shall come into the hands TOL. VM 11 Riordon vs. Holiday and others. or possession of James Russell, the husband of Elizabeth Russell, but it shall be held by Frances Holiday and Jarva Lane, and to go to their children, if James Russell should survive his wife, Elizabeth Russell." Taking the whole of this clause of the will together, and we think it was manifestly the intention of the testator, that this property should remain in the possession of his daughters, or the survivor of them, until their death, and then be equally divided between his grand children. The testator evidently contemplated that his daughter, Elizabeth Russell, might die without children-an event which has happened and one leading object with the testator was, to keep the property out of James Russell's hands or possession; hence, he directed it to be held by Frances Holiday and Jarva Lane, until their death, and then to be equally divided between their children. But it is contended, that the testator directed that, in the event Mrs. Russell had children, they should have one-third part of the property; and that expression denotes that it was the intention of the testator, that his grand children should take, per stirpes, and not per capita. But how does that expression, in any manner, interfere with the time fixed, by the testator, at which the property was to be divided? The time at which the property was to be divided among the testator's grand children, is one question, but in what proportions it shall be divided, is another and a very different question. The same remark may be made in regard to the negro boy, John. The boy, John, was to go into the possession of Jarva Lane, as part of her life estate in the property; that is to say, the testator expressed his desire that Jarva Lane should have the possession of John. The life estate in this property was to remain in the possession of his three daughters, or the survivor of them, until their deaths, and then to be equally divided among their children, Suppose Elizabeth Russell had been the survivor of the testator's three children, could the children of the other deceased daughters have compelled a distribution before her death? Certainly not; and for the reason that she might have children before her death, who would be entitled to a part of the property. Frances Holiday being the survivor of the testator's three daughters, she is entitled to the possession of a life estate in the property, and at Adams vs. Lamar. her death, the grand children of the testator will take, under the will of the testator, and not through their respective mothers.. Whether the grand children will take under the will, per capita, or per stirpes, we leave an open question, to be decided when the death of Frances Holiday shall authorize a division of the property to be made, according to our construction of the testator's intention. Let the judgment of the Court below be affirmed. No. 14. BENNETT ADAMS, plaintiff in error, vs. Gazaway B. LAMAR, defendant. [1.] The jurisdiction of the Courts of this State is co-extensive with its sovereignty, and that is limited only by its territory, and it therefore attaches upon all the property and persons within the limits of the State; yet it is to be so exercised as to conclude by judgment none but those who are parties. [2] The Courts of this State have no extra territorial jurisdiction, and cannot make the citizens of foreign States amenable to their processes, or conclude them, by a judgment, in personam, without their consent. [3.] A foreign citizen may waive his exemption, and submit to the jurisdic tion; and in that event, he will be concluded by the judgment. [4.] A files his bill against B, who is a citizen of New York-setting forth an agreement, by which B stipulated to give to A one-third of certain lands, to which B holds the legal titles, in consideration of services rendered, and information furnished to B by A, relative to the lands, and which was the inducement of B's purchase of them and asks an assignment to A of the one-third of the lands, and a conveyance of titles to the same, by B to A Bervice of the bill being perfected on B's agent in this State: Held, that upon this bill, a Court of Chancery could not decree against B, because of the want of jurisdiction over him, a citizen of a foreign State. [5.] When a foreign citizen appears, and by counsel pleads to the jurisdiction, he is not held to have waived his exemption by appearance. Appearance and pleading or answering to the merits, held to be a waiver of his exemption, and an assent to the jurisdiction. Application for injunction, Baker Superior Court, Before Judge WARREN, at Chambers, December, 1849. Adams vs. Lamar. The decision complained of in this case, is the refusal of the Court to grant an injunction. The bill was filed by Bennett Adams, alleging, that in 1839, complainant and one John T. Lamar entered into an agreement and partnership, to purchase and grant some of the lots of land in Baker, Early and Decatur counties, which had reverted to the State. It was agreed that Adams should examine the lots, and report to Lamar such as were valuable, at his own expense; and Lamar was to pay the grant fees into the treasury, and take out the grants in his own name; Adams, for his trouble, having an interest of one-third in the lots thus granted, or one-third of the actual value of the land, as he might choose. The bill charged that, at great expense, Adams proceeded to examine the lands, and reported to said John T. Lamar, about eighty lots of great value; that said John T, being unable to pay the grant fees, Gazaway B. Lamar stepped into his place, and advanced the money-taking out the grants in his own name, and agreeing to account to Adams, on the same terms as provided in the original agreement with John T. Lamar. The bill farther alleged, that John T. Lamar was dead, and Gazaway B. Lamar resided without the State of Georgia; that said Gazaway had advertised all of these lands for sale, at public outcry, at Milledgeville, on the first of December, 1849; that the complainant elected to take the one-third interest in the lands, and that the sale by Lamar would greatly injure the complainant; that the complainant desired to have the land admeasured, and one-third part assigned to him, and that Lamar be compelled, after such assignment, to convey the same to him. The prayer of the bill was for a partition of the lands, and an injunction restraining Lamar from selling the same. The Court granted an order, appointing a day for the hearing of the application, and, in the meanwhile, ordered a copy to be served on the agent of Lamar in Georgia, and publication of the application in a public gazette, On the hearing of the application, Lamar appeared, by his solicitor, and showed cause why the injunction should not be grant ed; among other grounds, because the Court in Baker County had no jurisdiction over the defendant, who, by the bill, was shown to reside out of the State. The Court sustained this objection and refused to grant the injunction, and complainant excepted. Adams vs, Lamar. R. F. LYON, for plaintiff in error, cited— Dearing vs. The Bank of Charleston, 5 Ga. Rep. 503. Story's Eq. Jur. §§486, 487, 489, 646, 658. 1 Atkyns, 544.. 1 Ves. 203. 2 Paige's R. 402. 5 Ga. Rep. 341.. E. H. PLATT and CHAPPELL, for defendant in error, cited→→→ 2 Story's Equity Jurisprudence, §§743, 1291. 1 Kent, 343, 3. Story on Const. §§1631, 1684 to 1686, '89, '9, 1293. Penn vs. Lord Baltimore, 1 Ves. Sr. 447. Earl of Kildare vs. Eustice, 1 Vernon, 421 Toller vs. Carteret, 2 Vernon, 494. Massie vs. Watts, 2 Cond. Rep. 332. Cranston vs. Johnson, 3 Ves. Jr. top page, 182, Jackson vs. Petrie, 10 Ves. top page, 164. Merrit, 2 Paige, 404. Mitcheli vs. Bunch, Ib. 614. Fowler, 9 Paige, 280. Pauling vs. Ex'rs of Bird, 13 Johnson, top page, 207. 6 Wend. 452. 5 Ga. Rep. 519. Mays & Shivers vs. Taylor, 7 Ga. Rep. 242. Bissell vs. Briggs, 9, Mass. By the Court.-NISBET, J. delivering the opinion. Mead vs. Stephen vs. Rep. 468. Whether the Court below erred in dissolving this injunction, depends upon the character of the case made in the bill. To de termine its character, we are to look to the bill itself—to its allegations and its prayer. It appears, then, from the statements in the bill, that an agreement was entered into, between the complainant and one John T. Lamar, then of the County of Bibb, and now deceased, for the granting of lands which, by Act of the Legislature, were declared forfeited, and which were authorized to be granted to any person who might come forward, after a time limited, and pay into the State treasury the grant fees. By that agreement it was stipulated, that the complainant should, at his own expense, explore the country, examine the lands, and report to John T. Lamar, such lots as he might believe valuable and desirable to be granted, for speculation. It was farther stipulated, that John T. Lamar should, on his part, grant the lands and pay the office fees; and farther, that in consideration of the services so to be rendered by the complainant, the parties stipulated, that |