third of all my real estate, during her lifetime; and in the event of her death, all the right in real property hereby bequeathed to her shall be, and is hereby declared to be vested in my dear and infant son, James Walker.

"I bequeath and give to my dearly beloved brother, John Walker, forever, all of lot numbered six, in square one hundred and six, with the two-story brick house, back building, and all appurtenances thereto belonging.

"I bequeath and give to my dearly beloved brother, Lewis Walker, forever, lots twentythree, twenty-four, and twenty-five, in square numbered one hundred and six, together with a two-story brick building, with a basement story, back building, and all appurtenances thereto belonging, and erected on one or more of said lots.

"I bequeath and give to my dearly beloved brother, Henry Walker, forever, lot numbered six, in square four hundred and three, together with the improvements thereon erected, and appurtenances thereto belonging.

and substantially admit the facts stated in said bill; but they all, with the exception of Peck and wife, aver that the property cannot be divided without prejudice, and refuse to agree to a sale.

The case being submitted on bill, answers, and exhibits, the court dismissed the bill; from which dismissal this appeal was taken by the complainant.

The case was argued by Mr. Brent, Jun., and Mr. Key for the appellant, and by Mr. Bradley, with whom was Mr. Reden, who submitted a printed argument, for the appellees. For the appellant it was contended: 1. That the court has jurisdiction of this case under the circumstances.

2. That neither the widow, Ann Sophia, nor the infant, James Walker, has any right, under the will, in the property devised to the complainant.

4. That, as the bill makes an alternative prayer, the court should have ordered [*169 partition between these tenants in common, if they are so on a true construction of the will, or a sale, if a partition could not be made.

168*] "I bequeath and give to my dearly beloved sister, Sarah M'Callion, part of lot numbered eight, in square numbered seventyfour, together with the frame house erected thereon, as her property forever.

"I bequeath and give to my dear and infant son, James Walker, lot numbered twentytwo, in square numbered three hundred and fifty-two, together with two two-story brick houses, and other buildings thereto belonging, as his property forever. I also bequeath and give to my infant son, James Walker, forever, the balance of my real estate, believed to be and to consist in lots numbered six, eight, and nine, with a house part brick and part frame, erected on one of said lots, in square one hundred and sixteen; lots thirty-one, thirty-two, and thirty-three, in square numbered one hundred and forty, and a slaughter-house erected on one of said lots; lots numbered eight and eleven, in square numbered two hundred and fifty; and lot numbered twenty-eight, in square numbered one hundred and seven. And further, I bequeath and give to my infant son, James Walker, one thousand dollars, to be paid out of my personal estate to, and applied, at the discretion of his guardian, hereinafter appointed, for the education of my son, James Walker. The balance of my personal estate, whatever it may be, I desire shall be equally divided between my mother, Dorcas Walker, my sister, Sarah M'Callion, and my brothers, John, Lewis, and Henry Walker."

The defendants all answered (including the minor James Walker, whose answer is put in by George Cover, under a special appointment of him by the court to answer for said infant),

to be made up out of the residuary estate. If it can be shown that there is a fund which can be made to contribute, it should be brought in. The principle of law is, that where there is a charge on the real estate, the residuary estate is first to be taken to satisfy it, and until this is exhausted, the real estate is not chargeable. Cited, 3 Paige's Chancery Rep. 316. is a case in which a court of chancery will bring in the residuary estate, in order to carry into effect the several purposes of the testator.

This

As to the rights of the infant son of the testator, it was argued that he took nothing in the property given to the wife after her death. The words "forever," which are used in the bequests to others, are not used in the devise to him of the property given to his mother. Cited, Russel v. Milner, 4 Eng. Chan. Rep. 549, 564; 2 Harris & Johns. 142. "All the right" given by the will to his son, is all the right in the real estate given the widow.

Under the laws of Maryland, the Chancellor may in such a case as this, decree a sale of the property. Act of 1785, ch. 72, sec. 12; Act of 1794, ch. 60, sec. 8. But if the devises of the testator's will are construed to give the appellees the estates they claim, the complainant has a right to a partition. A bill for a partition is a matter of right, when a title is shown in the complainant. Jeremy on Equity Jurisdiction, 303; Ambler, 236.

It ought not to be considered that it was the intention of the testator to give one third of all his estate to his son. It was a large property, and he meant to give a liberal portion of it to others of his family.

For the appellees it was argued:

The widow and infant son of James Walker

This is an appeal from the decree of the Circuit Court for the District of Columbia. 172*] *The complainant filed his bill, stating that, as devisee of James Walker, he claims the fee in lot numbered six, in square one hun dred and six, with all the improvements thereon, in the city of Washington; and also under a deed from Margaret and James Peck, lots numbered twenty-one and twenty-two, in the same square, which lots were devised to the said Margaret in the same will. And that the wife of the devisor, since intermarried with George Parker, claims under the will one third of the above property during her life, and that at her death it shall go to the son of the deceased named in the will.

And the complainant insists that he is entitled to the whole of the property, free from the claims of the wife of the devisor or her son, and he prays that the court may so decree. But if the court should think that he is only entitled to two thirds of the property, then he asks a division of it, or that it may be sold, as shall be deemed proper.

The wife of the devisor and her present husband, and the infant son, by guardian, assert their interest in one third of the premises in their answers, and are opposed to a sale or division of the property because, among other reasons, it would be prejudicial to the in terest of the infant son and devisee of the deceased.

Almost every part of the will has some bearing on the question raised by the complainant.

In his first devise, the testator says, "I bequeath and give to my dearly beloved wife, Ann Sophia Walker, one third of the whole of my personal estate forever, for her own proper use and benefit; and also one third of my real estate during her lifetime; and in the event of her death, all the right in real property hereby bequeathed to her, shall be, and is hereby declared to be vested in my dear and infant son, James Walker."

He then gives to his mother, "forever," a certain lot with its improvements. And then follows the devise to the complainant in these words: "I bequeath and give to my dearly beloved brother, John Walker, forever, all of lot numbered six," etc. The devise of the two lots to Margaret Peck is that they shall be "her property forever."

Several other devises of real property are made in the same form, to his brothers and sisters; and then he says, "I bequeath and give to my dear infant son, James Walker, lot numbered twenty-two, in square numbered three hundred and fifty-two," etc. "I also bequeath to him forever, the balance of my real estate, believed to be and to consist in lots numbered six, eight, and nine, in square one hundred and sixteen, lots thirty-one, thirty-two, and thirtythree, in square numbered one hundred and forty; lots numbered eight and eleven in

square numbered two hundred and fifty, and lot numbered twenty-eight in square numbered one hundred and seven.'

It is contended by the counsel for the com. plainants that the specific devises to the brothers and sisters of the deceased, show his intention to give to them the property [*173 devised, clear of all incumbrance; and that the devise of the real estate to the widow, must be satisfied out of the residuary devise to the infant son of the deceased.

The devises are inconsistent with each other, but they are not entirely so. The whole of any specific property is not devised to each of two devisees. The devise of one third of his real estate to his wife, and at her death to his son, is, to this extent, inconsistent with the specific devises which follow, and which dispose of all his real estate.

The devise of the "balance" of his real estate to his infant son, goes on to describe particularly the property.

From his first devise to his wife, there can be no doubt that the testator intended to give her what the law allowed her to take. And it caLnot be supposed that by the subsequent specific devises, he designed to defeat this arrangement. It is equally clear that he intended, on the death of his wife, that the property devised to her should go to her son.

The construction urged that "all the right in real property hereby bequeathed to her," shall go to his son, means a life estate only in one third of the real property, to the son, cannot be sustained. The words, "all the right," fairly import the entire or perfect right, "in the real property given to his wife." This reference to the devise to the wife, is descriptive of the extent of the property to be vested in fee in the son. The right of his wife was to terminate at her death, and it would be inconsistent to suppose that the testator would dispose of the same right, and no more, to his son.

One

This devise to his wife and son is a leading devise in the will. It was first in the mind of the testator, and must limit and control the other devises. The devises to the son are as specific as those to other persons; and there would seem to be little or no ground for the construction, that the devise to the wife must be satisfied out of the devises to the son. third of the entire real estate is given to the wife, and on her death this third goes to the son; and in the conclusion of the will certain lots are also specifically devised to the son. The son, in common with the other devisees, takes the lots specifically devised to him, subject to the devise of one third to his mother, and at her death he takes this third of these lots, and one third of each specific devise in the will.

This construction gives effect to the different devises of the will; and it would seem to be the only mode by which the intention of the testator can be effectuated. And it is in accordance with that well settled rule in the construction of wills, which regards the interest of the heirat-law.

With the exception of the devises to the wife and son, all the devises are collateral, and take the property from the line of descent established by law.

*If the complainant can hold the lots [*174 claimed by him free from the devise to the wife

of the testator by the same rule every other devisee in the will must hold in the same manner. 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 rule which it is claimed exempts the specific devises from this devise to the wife, but supposes that the testator first devises to his wife and son one third of his real estate, and then at the conclusion of his will gives specific devises to his son, which are intended wholly as to him to annul the first devise.

This construction would do injustice to the language of the testator, and defeat his intention.

Had the widow taken a life estate under the law, her interest of one third would have extended to every part of the real property of her deceased husband. And as the devise is made in as general terms as the statute which gives dower, it must have the same effect. This construction of the will defeats the main object of the complainant's bill. But his counsel insists that the part devised to the wife should be set off, or the sale of the property ordered.

The defendant was ladicted for receiving treasury notes of the United States, stolen from the United States mail. The indictment, in one of the counts, described one of the treasury notes as bearing interest annually of one per centum. A treasury note was offered in evidence, bearing interest at one M. per centum; and parol evidence was offered to show that treasury notes, such as the one offered in evidence, were received by the officers of the government as bearing interest of one mill per centum per annum, not one per centum per annum. The court held that

Treasury notes issued by the authority of the Act of Congress passed on the 12th of October, 1838, are promissory notes within the meaning of the Act of Congress of 3d March, 1825.

The letter "M," which appears on the face of the note offered in evidence, is a material part of the description of the note.

A partition or sale of this estate is regulated by the statutes of Maryland.

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 upon application of any of the parties concerned, and upon the appearance of the infant, that it shall be to the interest and advantage of the infant to have the land sold, he may

order a sale.

And in the 8th section of the Act of 1794, ch. 60, it is provided, on a similar application and appearance of the infant, as stated in the above statute, for a partition, if the Chancellor, "upon hearing and examining all the circumstances, shall think that it will be for the interest and advantage of all parties concerned," he may order a partition.

In this case there is no evidence which will enable the court to judge whether a sale or partition of the property would be to the advantage of the infant and the other parties. And it should hardly be expected that this court, in the absence of all evidence, should decree either of these alternatives against the

answer. 175*]

"The complainant may be subjected to some inconvenience by holding the property as tenant in common with the devisee of the testator; but it was a condition imposed by the terms of the will. And this court, acting under the law of Maryland, cannot remedy this inconvenience, unless the complainant shall bring himself clearly within the provisions and policy of that law.

When a note is given payable in foreign coln, the value of each coin in current money must be averred, and under such averment evidence of the value may be received

a certificate of division in opinion from

the Circuit Court of the United States for the Eastern District of Virginia.

James E. Hardyman was indicted in the Circuit Court of the Eastern District of Virginia for buying, receiving, and concealing treasury notes of the United States, knowing them to have been stolen. The treasury notes were alleged to have been stolen from the mail of the United States by Winston, a negro man, or by persons unknown. Winston was at the same time indicted for robbing the mail of the United States of ten treasury notes. The indictment contained four counts, charging the defendant with receiving treasury notes, bearing interest at one per centum, and at five per centum per annum.

The defendant moved the court to quash the indictment, upon the ground that the papers described in the said indictment are not promissory notes under the Act of Congress approved on the 3d day of March, 1825, under which the prisoner is indicted; and the Act of Congress approved the 12th day of October, 1837, by virtue of which the said notes were issued, describes them as treasury notes, and does not provide, nor does any other Act of Congress provide any penalty for stealing these notes from the mail of the United States, or receiving them, knowing them to be stolen; and upon this motion the court being divided in opinion, the said indictment was not quashed.

113

The attorney for the United States, further proceeding in the case, offered as evidence to the jury, a treasury note for fifty dollars, payable in one year, bearing interest at the rate of one M. per centum.

The counsel for the accused moved the 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 forth in the indictment, as it bears interest after the rate neither of five per centum, nor of one per centum, but bears an interest after the rate of one mill per centum, as signified by the letter "M" after the word "one" upon the face of the said note; and to sustain this motion, the defendant proved, by the collector of the port of Richmond, that he received notes such as that above described, as notes bearing interest after the rate of one mill per centum, and not one per centum, and the government so received them from him; and the letter "M" aforesaid was understood to signify and be intended to mean mill; and also proved that the Secretary of the Treasury had issued, as far as the said collector, and another witness who derived his impression from the Treasurer of the United States, and the officers of the government, knew and believed, no treasury note bearing interest after the rate of one per centum. Upon this motion the court was also divided in opinion, not being satisfied that the note did appear by its face to bear interest after the rate of one mill, and not being satisfied that it was competent to the defendant by parol evidence to explain any word or letter upon the face of the said note, so as to show what its meaning was, either by resort to any definition of it, or to the exposition of it by the practice of the Treasury Department, and the officers of the government and the public; and, therefore, that it was not competent to the defendant so to explain the letter "M" aforesaid, which appears on the face of the said note, and of which no notice is taken in the indictment, for the purposes of showing that by that letter the makers of the said note intended to fix the rate of interest at one mill per centum. And thereupon, upon the motion of the accused, and with the consent of the Attorney for the United States, the court adjourned to the Supreme Court of the United States for its decision, the following questions, viz:

1. Are the treasury notes issued by authority of the Act of Congress passed on the 12th day of October, in the year 1838, promissory notes within the meaning of the Act of Congress approved on the 3d day of March, 1825, under which the prisoner is indicted, and is there a sufficient averment in the indictment in this cause of the stealing and receiving of such treasury notes?

2. Is the letter "M," which appears on the face of the note offered as evidence, a material part of the description of the note?

3. Would it be proper to receive parol evidence for the purpose of explaining the meaning of the said letter "M," and proving the practice and usage of the Treasury Department and officers of the government and others lawful receivers of similar treasury notes, in order to show thereby the meaning intended to be attached, and actually attached to the said

letter "M" by the Treasury Department and others; and that by such meaning the said treasury note bears one mill per centum interest and not one per centum interest?

The case was submitted to the court by Mr. Grundy, Attorney-General of the United States.

*Mr. Justice M'Lean delivered the [178 opinion of the court:

This case comes before this court on a certificate of division of opinion of the judges of the Circuit Court for the Eastern District of Vir| ginia.

The defendant was indicted under the 45th section of the post-office law, for buying, receiving and concealing certain promissory notes called treasury notes, which he knew had been stolen from the mail of the United States. And, among others, one of the notes was described in the indictment, "as a promissory note called a treasury note, for the payment of fifty dollars, with interest at the rate of one per centum." etc.

On the production of the note in evidence, it was found to be accurately described in the indictment in all parts which were attempted to be described, except on the face of the note, instead of the above words of "with interest at the rate of one per centum," etc., the words were, "with interest at the rate of one M per centum.

And the counsel for the defendant moved the court to exclude the note from the jury for the variance, and to sustain this motion, the defendant proved by the collector of the customs at Richmond, that he received notes, such as the one described, as notes bearing interest after the rate of one mill per centum, and not one per centum; and that the govern ment so received them from him. And the judges being divided on this motion, as also on a motion to quash the indictment, on the ground that the notes set forth in the indictment were not promissory notes, within the Act of Congress, the following points were certified for the decision of this court:

1. Are the treasury notes issued by authority of the Act of Congress passed on the 12th day of October, in the year 1838, promissory notes within the meaning of the Act of Congress approved on the third day of March, 1825, under which the prisoner is indicted; and is there a sufficient averment in the indictment in this cause of the stealing and receiving such treasury notes?

2. Is the letter "M," which appears upon the face of the note offered as evidence, a material part of the description of the said note?

3. Would it be proper to receive parol evi. dence for the purpose of explaining the meaning of the said letter “M,” and proving the practice and usage of the Treasury Department and officers of the government and others, lawful receivers of similar treasury notes, in order to show thereby the meaning intended to be attached, and actually attached to the said letter "M" by the Treasury Department and others, and that by such meaning the said treasury note bears one mill per centum interest, and not one per centum interest?

As to the first point, we entertain no doubt