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third of all my real estate, during her lifetime; I and substantially admit the facts stated in said and in the event of her death, all the right in bill; but they all, with the exception of Peck real property hereby bequeathed to her shall and wife, aver that the property cannot be di. be, and is hereby declared to be vested in my vided without prejudice, and refuse to agree dear and infant son, James Walker.

to a sale. "I bequeath and give to my dearly beloved The case being submitted on bill, answers, brother, John Walker, forever, all of lot num. and exhibits, the court dismissed the bill; from bered six, in square one hundred and six, with which dismissal this appeal was taken by the the two-story brick house, back building, and complainant. all appurtenances thereto belonging,

The case

was argued by Mr. Brent, Jun., "I bequeath and give to my dearly beloved and Mr. Key for the appellant, and by Mr. brother, Lewis Walker, forever, lots twenty. Bradley, with whom was Mr. Reden, who sub. three, twenty-four, and twenty-five, in square mitted a printed argument, for the appellees. numbered one hundred and six, together with For the appellant it was contended: a two-story brick building, with a basement 1. That the court has jurisdiction of this case story, back building, and all appurtenances under the circumstances. thereto belonging, and erected on one or more 2. That neither the widow, Ann Sophia, nor of said lots.

the infant, James Walker, has any right, under “I bequeath and give to my dearly beloved the will, in the property devised to the com. brother, Henry Walker, forever, lot numbered plainant. six, in square four hundred and three, together 3. That even if the court shall think the with the improvements thereon erected, and widow has one third of each specific lot devised appurtenances thereto belonging.

by the testator, yet the infant, James Walker, "I bequeath and give to my dearly beloved has under the will no greater estate or insister, Margaret Peck, lots numbered twenty-terest in the complainant's property than a one, twenty-two, twenty-six, and twenty-seven, life estate: and that the court should have so in square numbered one hundred and six, to-decided. gether with a two-story frame house erected on 4. That, as the bill makes an alternative lot numbered twenty-seven, as her property prayer, the court should have ordered (*169 forever.

partition between these tenants in common, if “I bequeath and give to my dearly beloved they are so on a true construction of the will, sister, Louisa Ballard, forever, lot numbered or a sale, if a partition could not be made. four, in square numbered four hundred and Mr. Brent and Mr. Key contended that the thirty-two, together with the three-story brick devise in the will of James Walker was of one house erected thereon, and all the appurte- third of the real estate in value, and this was nances thereto belonging.

to be made up out of the residuary estate. If 168*] *"'I bequeath and give to my dearly it can be shown that there is a fund which can beloved sister, Sarah M'Callion, part of lot be made to contribute, it should be brought in. numbered eight, in square numbered seventy. The principle of law is, that where there is a four, together with the frame house erected charge on the real estate, the residuary estate thereon, as her property forever.

is first to be taken to satisfy it, and until this "I bequeath and give to my dear and in- is exhausted, the real estate is not chargeable. fant son, James Walker, lot numbered twenty. Cited, 3 Paige's Chancery Rep. 316. This two, in square numbered three hundred and is a case in which a court of chancery will fifty-two, together with two two-story brick bring in the residuary estate, in order to carry houses, and other buildings thereto belonging, into effect the several purposes of the testator. as his property forever. I also bequeath and As to the rights of the infant son of the tesgive to my infant son, James Walker, forever, tator, it was argued that he took nothing in the balance of my real estate, believed to be the property given to the wife after her death. and to consist in lots numbered six, eight, and the words “forever," which are used in the be. nine, with a house part brick and part frame, quests to others, are not used in the devise to erected on one of said lots, in square one hun him of the property given to his mother. Cited, dred and sixteen; lots thirty-one, thirty-two, Russel v. Milner, 4 Eng. Chan. Rep. 549, 564; and thirty-three, in square numbered one hun. 12 Harris & Johns. 142. “All the right” given dred and forty, and a slaughter-house erected by the will to his son, is all the right in the on one of said lots; lots numbered eight and real estate given the widow. eleven, in square numbered two hundred and Under the laws of Maryland, the Chancellor fifty; and lot numbered twenty-eight, in square may in such a case as this, decree a sale of the numbered one hundred and seven. And fur- property. Act of 1785, ch. 72, sec, 12; Act ther, I bequeath and give to my infant son, of 1794, ch. 60, sec. 8. But if the devises of James Walker, one thousand dollars, to be the testator's will are construed to give the appaid out of my personal estate to, and applied, pellees the estates they claim, the complainant at the discretion of his guardian, hereinafter has a right to a partition. A bill for a partiappointed, for the education of my son, James tion is a matter of right, when a title is shown Walker. The balance of my personal estate, in the complainant. Jeremy on Equity Juriswhatever it may be, I desire shall be equally diction, 303; Ambler, 236. divided between my mother, Dorcas Walker, It ought not to be considered that it was the my sister, Sarah M'Callion, and my brothers, intention of the testator to give one third of all John, Lewis, and Henry Walker."

his estate to his son. It was a large property, The defendants all answered (including the and he meant to give a liberal portion of it to minor James Walker, whose answer is put in others of his family. by George Cover, under a special appointment For the appellees it was argued: of him by the court to answer for said infant), The widow and infant son of James Walker

sontend that they are entitled, under the first and the whole of the same estate is, by a subdevise in his will, to one undivided third of the sequent clause, given to another. But here the whole of his real estates-the widow for life, whole of the lots claimed by the complainant and the son in fee. The complainant, a dev- is not given, first to the wife and son, and then isee of part of his real estate, denies the right to the complainant; one third only is given by of the widow and son.

the first devise to the wife and son, leaving The first difficulty arises out of this denial. two thirds to pass, by the second devise to the The proceeding is in chancery, under the acts complainant. of assembly of 1785, ch. 72, sec. 12 and 1794, And this was the meaning of the testator. ch. 60, sec. 8. The first act authorizes the He intended that his wife should take one court to decree a sale, where an "infant” has third, and the complainant all that was left; & joint interest or interest in common with any as if he had said that the gift in the second de. other person, on its appearing to the Chancellor vise shall be subject to the part of the lots he "that it will be for the interest and advan-had previously given by the first devise. It tage both of the infant and of the other per- was not necessary he should say expressly, in son to sell," etc. The second act, in the same the latter clause, that "the gift thereby [ 171 case, where an infant is concerned, authorizes made was to be subject to the gift made by the • partition. The complainant denies that the former. It is necessarily implied. infant in this case has any estate or interest The objection of inconsistency applies, if at in the property in controversy.

all, as forcibly to the wife as to the son. But 170"] *But it is only where an infant is can it be doubted that she takes one third of concerned that the court is authorized, by these the whole of the real estate under the first acts, to decree either partition or sale. Does clause of the first devise ? And do not the the complainant make a case for the action of words of the second clause give that third, aft. the court, without admitting that the infanter her death, to the son, with as much clear has some estate in the premises? And may ness as the preceding words give it to the wife! not the decree dismissing the complainant's Does the wife take one third in the lots giv. bill be sustained on the ground of his own de- en to the son by the specific devise in his favor! nial of the infant's right?

How can she, if the complainant's rule of conThe 8th sec. of the Act of 1786, ch. 45, to di-struction is to prevail ? Is there any substanrect descents, has no application. It relates to tial difference in the words of devise? To say a case of intestacy, and to the common law that the complainant shall take the whole of side of the court. This is the case of a devise, this house and lot, would be to say that the and the proceeding is by bill on the chancery wife shall not take one third of the whole real side of the court, under the two acts above estate, but one third of part only. mentioned.

Our construction makes the whole will har. The only ground on which an application for monize, and gives operation to every clause. It a petition can be made, is that it is for the makes the first devise dispose of one third of benefit of all the parties. This is denied, and the premises of the wife and son, and the secno proof was made to sustain this allegation in ond, of the remaining two thirds to the comthe bill.

plainant. Their construction requires the total But the widow and son are entitled to one rejection and expunging from the will of the undivided third of the house and lots in this clause in favor of the son. Give the complain. suit under the will. The primary intention of ant the whole of these premises, and there the testator is to provide for his wife and son. would be nothing upon which that clause With this view, he first carves out of his whole could operate. The son would take the lots real estate, one third, and gives it, by the first specifically devised to him, under the devises clause of his will, to his wife, for life; "and in his favor, or as heir-at-law. Unless the secin the event of her death, all the right in real ond clause of the first devise had been in. property hereby bequeathed to her, shall be serted, the third of the premises in controversy, vested in my infant son." "In the event of her given to the wife for life, would, on her death, death,” means after her death; and the words have vested in the complainant. It could be "hereby bequeathed,” refer to the real prop-inserted for no other purpose than to intererty, and not to the right or estate, given to cept that third, and vest it in the son. her. "Right in real property" are words large If that clause be a kind of residuary devise, enough to pass a fee. Nicholls v. Butcher, 18 it is so of one third only, and the subsequent Ves. 193; 16 East, 221; 6 Cru. Dig. 240; New-specific devises would not derogate from it, so kirk v. Newkirk, 2 Caines' Rep. 345.

long as there was anything for those devises The testator then goes on and gives a par- to operate on. ticular house and lot to the complainant, and Suppose, then, that the wife and son are enthe residue of his real estate he gives to his titled to one undivided third part of the house son, first by a specific devise, and then by a and lots in question; were the court right in residuary clause.

dismissing the bill ? The proceeding is under The words of the first devise, disposing of the two acts of '85 and '94, which authorize a the third in his whole estate, are clear. Effect sale or partition, on the court's being satisfied must be given to every, expression in a will, if that it would be for the interest and advantage possible. Smith v. Bell, 6 Peters, 76; Ram. on of the infant and other person to sell, etc. The Wills, 97; Law Lib. No. —, p. 58.

complainant ought to have proved that fact. It is said that the devise of that third is in. In the case of an infant, nothing can be taken consistent with the devise to the complainant for granted. But the answer denies that it of the house and lots. The cases of inconsist. would be for the infant's interest and advanency put in Cruise, 6 Cru. Dig. 164, 408, are, tage to have the house and lots in question where the whole of an estate is given to one,' divided and sold, which is responsive to the bill.

There is no proof that the court could not square numbered two hundred and fifty, and therefore be satisfied that it was for the ad. lot numbered twenty-eight in square numbered vantage of the infant and other party that one hundred and seven. there should be a division or sale, and could It is contended by the counsel for the com. not so decree.

plainants that the specific devises to the broth

ers and sisters of the deceased, show his inMr. Justice M'Lean delivered the opinion of tention *to give to them the property (*173 the court:

devised, clear of all incumbrance; and that the This is an appeal from the decree of the devise of the real estate to the widow, must be Circuit Court for the District of Columbia. satisfied out of the residuary devise to the in: 172"] *The complainant filed his bill, stat. | fant son of the deceased. ing that, as devisee of James Walker, he clains The devises are inconsistent with each other, the fee in lot numbered six, in square one hun but they are not entirely so. The whole of any dred and six, with all the improvements there specific property is not devised to each of two on, in the city of Washington; and also under devisees. The devise of one third of his real & deed from Margaret and James Peck, lots estate to his wife, and at her death to his son, numbered twenty-one and twenty-two, in the is, to this extent, inconsistent with the specific same square, which lots were devised to the devises which follow, and which dispose of all said Margaret in the same will. And that his real estate. the wife of the devisor, since intermarried with The devise of the "balance" of his real estate George Parker, claims under the will one third to his infant son, goes on to describe particuof the above property during her life, and larly the property. that at her death it shall go to the son of From his first devise to his wife, there can ve the deceased named in the will.

no doubt that the testator intended to give her And the complainant insists that he is enti. what the law allowed her to take. And it cal. tled to the whole of the property, free from not be supposed that by the subsequent specific the claims of the wife of the devisor or her devises, he designed to defeat this arrangeson, and he prays that the court may so de- ment. It is equally clear that he intended, on cree. But if the court should think that he is the death of his wife, that the property deonly entitled to two thirds of the property, vised to her should go to her son. then he asks a division of it, or that it may The construction urged that “all the right in be sold, as shall be deemed proper.

real property hereby bequeathed to her," shall The wife of the devisor and her present hus. go to his son, means a life estate only in one band, and the infant son, by guardian, assert third of the real property, to the son, cannot be their interest in one third of the premises in sustained. The words, "all the right," fairly their answers, and are opposed to a sale or import the entire or perfect right, "in the real division of the property because, among other property given to his wife.” This reference to reasons, it would be prejudicial to the in the devise to the wife, is descriptive of the exterest of the infant son and devisee of the de. tent of the property to be vested in fee in the ceased.

son. The right of his wife was to terminate at Almost every part of the will has some her death, and it would be inconsistent to supbearing on the question raised by the compose that the testator would dispose of the plainant.

same right, and no more, to his son. In his first devise, the testator says, “I be This devise to his wife and son is a leading queath and give to my dearly beloved wife, devise in the will. It was first in the mind of Ann Sophia Walker, one third of the whole of the testator, and must limit and control the my personal estate forever, for her own prop other devises. The devises to the son are as er use and benefit; and also one third of my specific as those to other persons; and there real estate during her lifetime; and in the would seem to be little or no ground for the event of her death, all the right in real prop. construction, that the devise to the wife must erty hereby bequeathed to her, shall be, and is be satisfied out of the devises to the son. One hereby declared to be vested 'in my dear and third of the entire real estate is given to the infant son, James Walker."

wife, and on her death this third goes to the He then gives to his mother, "forever,” a son; and in the conclusion of the will certain certain lot with its improvements. And then lots are also specifically devised to the son. The follows the devise to the complainant in these son, in common with the other devisees, takes words: "I bequeath and give to my dearly be the lots specifically devised to him, subject to loved brother, John Walker, forever, all of lot the devise of one third to his mother, and at numbered six," etc. The devise of the two lots her death he takes this third of these lots, and to Margaret Peck is that they shall be "her one third of each specific devise in the will. property forever."

This construction gives effect to the different Several other devises of real property are devises of the will; and it would seein to be the made in the same form, to his brothers and sis. only mode by which the intention of the testa. ters; and then he says, “I bequeath and give to tor can be effectuated. And it is in accordance my dear infant son, James Walker, lot num. with that well settled rule in the construction bered twenty-two, in square numbered three of wills, which regards the interest of the heirhundred and fifty-two,” etc. "I also bequeath at-law. to him forever, the balance of my real estate, With the exception of the devises to the wife believed to be and to consist in lots numbered and son, all the devises are collateral, and take six, eight, and nine, in square one hundred and the property from the line of descent estabsixteen, lots thirty-one, thirty-two, and thirty lished by law. three, in square numbered one hundred and *If the complainant can hold the lots (*174 forty; lots numbered eight and eleven in 'claimed by him free from the devise to the wife

V.

A

of the testator by the same rule every other The decree of the Circuit Court dismissing devisee in the will must hold in the same man- the bill is affirmed with costs. ner. And this would defeat the leading devise, for the entire real estate is specifically disposed of in the will.

If the devise to the wife be thrown upon the specific devises to the son, it not only violates

*THE UNITED STATES ['176 the rule which it is claimed exempts the specific devises from this devise to the wife, but

JAMES E HARDYMAN. supposes that the testator first devises to his wife and son one third of his real estate, and Indictment for receiving stolen notes—descripthen at the conclusion of his will gives specific

tion of notes, parol evidence to explaindevises to his son, which are intended wholly

averment of value. as to him to annul the first devise.

This construction would do injustice to the The defendant was ladicted for receiving treaslanguage of the testator, and defeat his intenary notes of the United Statee, stolen from the tion.

United States mall. The indictment, in one of the Had the widow taken a life estate under the bearing interest annuaily of one per centum.

counts, described one of the treasury notes as law, her interest of one third would have ex. treasury note was offered in evidence, bearing 10tended to every part of the real property of terest at one M. per centum; and parol evidence her deceased husband. And as the devise is the one offered in evidence, were recelved by the made in as general terms as the statute which officers of the government as bearing Interest of gives dower, it must have the same effect.

one mill per centum per annum, Dot one per cent.

um per annum. The court held thatThis construction of the will defeats the

Treasury potes issued by the authority of the main object of the complainant's bill. But Act of Congress passed on the 12th of October, his counsel insists that the part devised to the 1838, are promissory notes within the meaning of

the Act of Congress of 3d March, 1825. wife should be set off, or the sale of the prop- The letter “M," which appears on the face of the erty ordered.

note offered in evidence, is a material part of the The bill does not seem to have been inmed description of the note.

It would be proper to receive parol evidence for with a view to a partition or sale of the estate. the purpose of explaining the meaning of the let: Beveral of the devisees, all of whom are interfer M, and proving the practice and usage of rested in such a proceeding, are not made par-ernment and others, lawful recelvers of similar

the Treasury Department and officers of the govties. And a partition or sale is opposed by treasury notes ; in order to sbow thereby the the infant son and his mother, as injurious meantag latended to be attached and actually atto his interest. And the rights of the mother tached, to the letter "M" by the Treasury Departand son are so intimately blended, that any said treasury note beang one mill per centum injroceeding which shall affect the life estate terest, and not one per centum ty terest. iaust affect the inheritance.

When a note is given payable in foreign coln, the

value of each coin in current money must be A partition or sale of this estate is regulated averred, and under such averment evidence of by the statutes of Maryland.

the value pay be recelved. The 12th section of the Act of 1785, ch. 72, provides that where an infant has an interest in lands, and it shall appear to the Chancellor o Nha certificato of division in opinion from

the, Circuit Court of the United States for upon application of any of the parties con- the Eastern District of Virginia. cerned, and upon the appearance of the infant, James E. Hardyman was indicted in the that it shall be to the interest and advantage Circuit Court of the Eastern District of Virof the infant to have the land sold, he may ginia for buying, receiving, and concealing order & sale.

treasury notes of the United States, knowing And in the 8th section of the Act of 1794, them to have been stolen. The treasury notes ch. 60, it is provided, on a similar application were alleged to have been stolen from the and appearance of the infant, as stated in the mail of the United States by Winston, a negro above statute, for a partition, if the Chancellor, man, or by persons unknown. Winston was "upon hearing and examining all the circum. at the same time indicted for robbing the mail stances, shall think that it will be for the in. of the United States of ten treasury notes. terest and advantage of all parties concerned," The indictment contained four counts, charg. he may order a partition.

ing the defendant with receiving treasury In this case there is no evidence which will notes, bearing interest at one per centum, and enable the court to judge whether a sale or at five per centum per annum. partition of the property would be to the ad. The defendant moved the court to quash the vantage of the infant and the other parties. indictment, upon the ground that the papen And it should hardly be expected that this described in the said indictment are not prom. court, in the absence of all evidence, should issory notes under the Act of Congress apdecree either of these alternatives against the proved on the 3d day of March, 1825, under answer.

which the prisoner is indicted; and the Act of 175°) *The complainant may be abjected Congress approved the 12th day of October, to some inconvenience by holding the property 1837, by virtue of which the said notes were is. as tenant in common with the devisee of the sued, describes them as treasury notes, and testator; but it was a condition imposed by does not provide, nor does any other Act of the terms of the will. And this court, acting Congress provide any penalty for stealing these under the law of Maryland, cannot remedy notes from the mail of the United States, this inconvenience, unless the complainant shall or receiving them, knowing them to be stolen; bring himself clearly within the provisions and and upon this motion the court being divided policy of that law.

in opinion, the said indictment was not quashed. 1. L. ed.

113

The attorney for the United States, further , letter "M" by the Treasury Department and proceeding in the case, offered as evidence to others; and that by such meaning the said the jury, a treasury note for fifty dollars, pay. treasury note bears one mill per centum inable in one year, bearing interest at the rate terest and not one per centum interest ? of one M. per centum.

The case was submitted to the court by Mr. The counsel for the accused moved the Grundy, Attorney-General of the United States. 177*] court to exclude it from *the jury as evidence, upon the ground that it does not answer the description of any one of the notes set *Mr. Justice M'Lean delivered the [*178 forth in the indictment, as it bears interest opinion of the court: after the rate neither of five per centum, nor This case comes before this court on a certifi. of one per centum, but bears an interest after cate of division of opinion of the judges of the the rate of one mill per centum, as signified Circuit Court for the Eastern District of Vir. by the letter "M" after the word "one" up. ginia. on the face of the said note; and to sustain The defendant was indicted under the 45th this motion, the defendant proved, by the col section of the post-office law, for buying, relector of the port of Richmond, that he received ceiving and concealing certain promissory notes such as that above described, as notes notes called treasury notes, which he knew had bearing interest after the rate of one mill per been stolen from the mail of the United States. centum, and not one per centum, and the gov. And, among others, one of the notes was de. ernment so received them from him; and the scribed in the indictment, "as a promissory letter "M" aforesaid was understood to signi. note called a treasury note, for the payment of fy and be intended to mean mill; and also fifty dollars, with interest at the rate of one proved that the Secretary of the Treasury had per centum.” etc. issued, as far as the said collector, and another on the production of the note in evidence, it witness who derived his impression from the was found to be accurately described in the inTreasurer of the United States, and the officers dictment in all parts which were attempted to of the government, knew and believed, no be described, except on the face of the note, intreasury note bearing interest after the rate stead of the above words of "with interest at of one per centum. Upon this motion the the rate of one per centum,” etc., the words court was also divided in opinion, not being were, “with interest at the rate of one M per satisfied that the note did appear by its face centum. to bear interest after the rate of one mill, and And the counsel for the defendant moved not being satisfied that it was competent to the court to exclude the note from the jury for the defendant by parol evidence to explain any the variance, and to sustain this motion, the word or letter upon the face of the said note, defendant proved by the collector of the cus. 80 as to show what its meaning was, either by toms at Richmond, that he received notes, resort to any definition of it, or to the exposi. such as the one described, as notes bearing intion of it by the practice of the Treasury De- terest after the rate of one mill per centum, partment, and the officers of the government and not one per centum; and that the govern and the public; and, therefore, that it was ment so received them from him. And the not competent to the defendant so to explain judges being divided on this motion, as also the letter "M" aforesaid, which appears on on a motion to quash the indictment, on tho the face of the said note, and of which no no- ground that the notes set forth in the intice is taken in the indictment, for the pur- dictment were not promissory notes, within poses of showing that by that letter the the Act of Congress, the following points makers of the said note intended to fix the were certified for the decision of this court: rate of interest at one mill per centum. And 1. Are the treasury notes issued by authority thereupon, upon the motion of the accused, and of the Act of Congress passed on the 12th day with the consent of the Attorney for the Unit- of October, in the year 1838, promissory notes ed States, the court adjourned to the Supreme within the meaning of the Act of Congress apCourt of the United States for its decision, proved on the third day of March, 1825, under the following questions, viz:

which the prisoner is indicted; and is there a 1. Are the treasury notes issued by authority sufficient averment in the indictment in this of the Act of Congress passed on the 12th day cause of the stealing and receiving such treas. of October, in the year 1838, promissory notes ury notes ? within the meaning of the Act of Congress ap

Ž. Is the letter “M,” which appears upon proved on the 3d day of March, 1825, under the face of the note offered as ev ace, a which the prisoner is indicted, and is there a material part of the description of the said sufficient averment in the indictment in this note ? cause of the stealing and receiving of such 3. Would it be proper to receive parol evi. treasury notes ?

dence for the purpose of explaining the mean2. Is the letter “M,” which appears on the ing of the said letter “M," and proving the face of the note offered as evidence, a material practice and usage of the Treasury Department part of the description of the note ?

and officers of the government and others, law. 3. Would it be proper to receive parol evi- ful receivers of similar treasury notes, in order dence for the purpose of explaining the mean to show thereby the meaning intended to be ing of the said letter “M," and proving the attached, and actually attached to the said let. practice and usage of the Treasury Depart. ter "M" by the Treasury Department and ment and officers of the government and others others, and that by such meaning the said lawful receivers of similar treasury notes, in treasury note bears one mill per centum interorder to show thereby the meaning intended to est, and not one per centum interest ? be attached, and actually attached to the said As to the first point, we entertain no doubt

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