Act of January 6, 1819-January 1, 1820. R. C. ch. 82. 13. § 13. When the executive shall direct a sale to be made upon credit, and the purchase money to be secured by bond, mortgage, deed of trust, or otherwise, when the purchaser shall have complied with his contract, the escheator shall immediately certify to the register the name of the purchaser, the price by him agreed to be given for the land; and that he hath secured the same in the manner directed by the executive: whereupon, the register shall proceed to have a grant executed to such purchaser in manner herein before directed. And in case a mortgage or deed of trust be taken for securing payment of the purchase money, it shall be the duty of the escheator to have such deed recorded in the court of the county or corporation wherein the lands lie, that the auditor may proceed thereon according to law, in case it be necessary to enforce payment. Ibid. See post. No. 21. 14. § 14. When any person shall die indebted, seized of lands which shall become escheated to the commonwealth, not having personal property sufficient to pay such debts, the creditor may exhibit his petition before the court of the county or corporation,' in which such escheat shall take place, or in the superior court of law for such county, making the escheator of such county or corporation a party defendant, who shall defend(b) such claim; and the said court shall proceed to judgment according to the right of the case, and render the same for such sum as shall appear to be due(a) to such petitioner, if any thing; and it shall be the duty of such escheator, on such judgment being rendered, to satisfy and pay the amount thereof, if the proceeds of the sale be sufficient, and yet in his hands; and if the same shall be paid into the treasury, the auditor shall, and is hereby required, on a copy of such judgment, properly authenticated, being filed, to issue a warrant; and the treasurer shall pay the amount, or so much as has been received on account of such sale: Provided, That the slaves and other personal estate shall be previously applied in the payment of the debts of the said decedent, and that every such creditor shall annex an affidavit(a) to the said petition, stating that the amount of his or her demand is bona fide due and owing at the time of preferring the petition. From Dec. 1797, c. 13, Ses. Acts; Jan. 1804, c. 30, ed. 1808. 15. § 15. For each inquest taken by any escheator for the commonwealth, he shall be allowed the sum of ten dollars, to be paid out of the fund charged with the payment of the civil list; and he shall be also allowed a commission of ten per cent. upon all sums received by him in virtue of his office, and which shall be paid by him into the public treasury. 1794, c. 180; 1797, c. 224, R. C.; 1815, c. 19. 16. § 16. It shall be the duty of the attorney prosecuting for the commonwealth, in any and every county or corporation therein to prosecute such inquest and such attorney, for his trouble and expense, shall be allowed the sum of ten dollars for every inquest and office found he shall attend, to be paid out of the aggregate fund. 1794, c. 180, R. C.; Am. Rev. 1819. 17. § 17. Where any person holds lands or tenements for term of years, or hath any rent, common, office, fee, or other profit apprender, of any estate of freehold, or for years, or otherwise, out of such lands or tenements, which shall (b) The escheator, who is defendant to the petition, has the same right to plead the statute of limitations in bar of the petition, that a representative of the debtor would have to plead the statute in bar of an action. Ibid. (a) On a petition under this act, the creditor is required to make affidavit that the amount of his demand is bona fide due; but this requisition of the statute does not dis pense with the necessity of other evidence; the court can render judgment only for such sum as is proved to be due. And, if judgment be rendered for the whole amount of the demand, when the whole is not proved to be due, and it is uncertain to what part the proof extends, an appellate court will reverse the judgment and dismiss the petition. Watson v. Lyle's adm'r, Same v. Robertson, 4 Leigh, 236. Act of January 6, 1819-January 1, 1820. R. C. ch. 82. not be found in such office or inquisition, such person shall hold and enjoy his lease, interest, rent, common, office, fee, and profit apprender, in manner as if no such office or inquisition had been found, or as if such lease, interest, rent, common, office or profit apprender had been found in such inquisition. 1785, c. 63, 12 Stat. Larg. 158; 1792, c. 82, R. C. 18. § 18. If one person or more be found heir by office or inquisition in one county or corporation, and another person be found heir to the same person in another county or corporation, or if any person be untruly found lunatic, idiot or dead, the person grieved by such office or inquisition, may have his traverse or monstrans de droit to the same, without being driven to any petition of right, and proceed to trial therein, and have like remedy and restitution, upon his title found or adjudged for him therein, as in other cases of traverse upon untrue inquisition found. Ibid. 19. § 19. Any person claiming a freehold title to any land escheated to the commonwealth, may have his traverse to the office, or inquisition, or his monstrans de droit, or his petition of right, at any time before such land shall have been sold pursuant to the directions of this act, but not after; and until such traverse, monstrans de droit, or petition of right shall have been discussed, and decided in favour of the commonwealth, no such sale shall be made. After sale shall have been made, any person claiming a freehold title to the land so sold, or to any part thereof, and not having asserted such claim before the sale, in manner above mentioned, may exhibit his bill in the superior court of chancery for that district, in which such land, or the greater part thereof, may lie, setting forth his title thereto, making the escheator for the county or corporation a party defendant, and praying that the purchase money, or so much thereof as he may be entitled to, shall be paid to him. It shall be the duty of such escheator to answer the bill and defend it, on behalf of the commonwealth. If, upon the hearing of the cause, it shall appear that the plaintiff hath such right to a freehold estate in the land sold, or any part thereof as would have entitled him to a recovery of the same, if it had not been sold, the court shall decree to him the nett proceeds of the purchase money, or such part thereof as he may be equitably entitled to, but without interest or costs. The money so decreed shall be paid by the escheator, if the purchase money remain in his hands, or, if it shall have been received into the treasury, then the money so decreed shall be paid out of any money in the treasury for the use of the literary fund. The suit in equity, hereby authorized, may be instituted at any time within ten years next after the sale of the land shall have been made, but not afterwards; saving, however, to all persons non compos mentis, infants, femes covert, persons imprisoned, and out of this commonwealth, the right of bringing such suit within ten years after their respective disabilities removed. Rev. 1819. 20. § 20. All costs incurred by the escheator, in defending any petition or bill in equity, authorized by this act, shall be certified by the court, in which such bill or petition may be, to the auditor of public accounts, and shall be thereupon refunded to the escheator out of any money in the treasury for the use of the literary fund. Ibid. Act of March 4, 1822, ch. 15. 21. § 1. Whenever the executive shall direct the sale of any escheated lands, they shall cause the order for such sale to be delivered to the auditor of public accounts, and it shall be the duty of the auditor to transmit the same to the escheator. It shall be the duty of the escheator, within sixty days after the receipt of such order, to report to the auditor his proceedings under the same, and to account with him for the proceeds of any sale or sales made un Act of March 4, 1822, ch. 15. der the authority thereof; and if the sales shall not be completed within the said sixty days, the escheator shall again, in like manner, report and account, within the next succeeding sixty days: and so from time to time, within every period of sixty days, shall he report and account, in like manner, until the sale or sales under such order shall be completed. If any credit shall be allowed on such sales, the escheator shall take bonds and all other securities for the deferred payments, pursuant to the order of the executive, payable to the governor or chief magistrate of this commonwealth, for the time being, and his successors in office, for the use of the commonwealth, and shall return such bond and other securities to the auditor, together with his report aforesaid. Upon such bonds when they fall due, it shall be lawful for the auditor to obtain judgment in the general court, on ten days previous notice, to the obligors, their heirs, executors or administrators, or any of them, in the name of the governor, for the time being, for the use of the commonwealth; and upon the other securities, he may proceed according to their several kinds, either in court or out of court, to recover the moneys assured thereby. If proceedings in a court of law be required, the general court shall have jurisdiction, by motion, on ten days previous notice; if proceedings in equity, the superior court of chancery for the Richmond district shall have jurisdiction. Upon all moneys paid into the treasury, upon such bonds, the escheator shall be allowed the same commissions as if he had received and accounted for the same. When lands or tenements, escheated to this commonwealth, shall be sold by any escheator on a credit, the commonwealth shall without deed have a lien for the purchase money, for which credit shall be given, upon such lands and tenements, until the same shall be paid, notwithstanding the purchaser may give personal security therefor; and until such purchase money shall be fully paid, it shall not be lawful to issue to the purchaser, or his representatives, any grant for such lands or tenements. 22. § 2. If any escheator shall fail to make any report hereby required of him, within the period of time prescribed by this act, or shall fail to pay into the public treasury within the time limited as aforesaid, any money in his hands proceeding from any sale, or shall fail to return to the auditor the bonds and other securities for the purchase money as hereby required, he shall forfeit and pay for every such offence, a fine not less than one hundred, nor more than two hundred dollars, to be recovered by the auditor, in the general court, by motion, on ten days previous notice, in the name of the commonwealth, for the benefit of the literary fund; and he shall incur a similar fine, in like manner to be recovered, for every sixty days that such failure shall continue. 23. § 3. It shall be the duty of the auditor to keep a book for the registry of all lands, other than waste and unappropriated lands, belonging to the commonwealth, including those which may escheat to the commonwealth, for the benefit of the literary fund. In such book he shall describe, as nearly as may be, when and of whom such lands were obtained, their situation, quantity and title thereto, together with the price paid by the commonwealth; and shall moreover state the time when disposed of, the price and terms of sale, the names of the agents and purchasers, and the amount of money paid into the treasury on account of such sale. And, the better to enable the auditor to make a complete registry of all such lands, it shall be the duty of the commissioners in the several counties and corporations within this commonwealth, to transmit list of all such lands and lots in their respective districts, setting forth particularly all information relative thereto which can be obtained. For each tract of land or lot so certified, the commissioners shall be entitled to receive, by warrant on the treasury, the sum of one dollar. Act of March 4, 1822, ch. 15. 24. 4. The executive shall proceed to direct the sale of all lands and lots, to which the commonwealth hath title, except where there is some legal impediment, or where such a measure is forbidden by a sound discretion; and except also, such lands and lots, the sale whereof the auditor is already by law directed to make. 25. § 5. It shall be the duty of the auditor, from time to time, to lay before the executive all information which he may receive relative to such lands; and all orders of the executive, relative to the sale thereof, shall be directed to the auditor, and by him forwarded to the person authorized to make sale thereof. Act of February 24, 1819-January 1, 1820. R. C. ch. 99. 1. § 22. Every estate in lands or slaves, which, on the seventh day of October, in the year of our lord, one thousand seven hundred and seventy-six, was an estate in fee-tail, shall be deemed from that time to have been, and from thenceforward to continue, an estate in fee-simple: And every estate in lands, which since hath been limited, so that, as the law aforetime was, (a) such estate would have been an estate-tail, shall also be deemed to have been, and to continue an estate in fee-simple: And, all estates which, before the said seventh day of October, one thousand seven hundred and seventy-six, by the law, if it remained unaltered, (b) would have been estates in fee-tail, and which now, by virtue of this section, are and will continue estates in fee-simple, shall from that time and henceforth be discharged of the conditions annexed thereto by the common law, restraining alienations before the donee shall have issue; so that the donees or persons in whom the conditional fees vested or shall vest, had, and shall have the same power over the same estates, as if they were pure and absolute fees. (c) Oct. 1776, c. 26, 9 Stat. Larg. 226; Oct. 1785-Jan. 1, 1787, c. 62, 12 Stat. Larg. 156, c. 90, R. C. (a) (b) The meaning of words and phrases, and the established rules of construction anterior to the passage of this act, were not in the least degree affected thereby. Hill v. Burrow, 3 Call, 342; Tate v. Tally, ib. 354, 360-1: Therefore, in the examination of a will, with a view to ascertain the effect of the words and phrases therein contained, the date of the will, cannot be taken into consideration. See the very learned opinion of Kent, Ch. in Anderson v. Jackson, 16 Johns. R. (in error,) 397-424, in which the principal authorities of England, and of the United States, are remarked on. The law of N. York of Feb. 23, 1786, is, in this particular, like that of Virginia. Wilkes v. Lion, 3 Cowen, 333; Jackson ex dem. St. John v. Chew, 10 Wheat. 153. (c) The mode of docking entails in Virginia, before this act, was by private act of Act of February 24, 1819-January 1, 1820. R. C. ch. 99. 2. § 23. Provided always, That, all estates in lands, or slaves, which have become, or shall hereafter become, escheatable to the commonwealth, by vir assembly only. The act of Oct. 1705, c. 21, 3 Stat. Larg. 320, expressly prohibited the use, and destroyed the effect of fines and recoveries. See Gleeson's heirs v. Scott, 3 H. & M. 278. By the act of 1776, all remainders as well contingent as vested, are barred, and, whether the entail be created before or after the passage of the act. To avoid this effect, the court will not violate the settled rules of construction; they will not construe that to be an executory devise, which, before 1776, would have been held to be a contingent remainder. Carter v. Tyler et al. 1 Call, 165-187. Post No. 4. R. H. 3 Oct. 1774, devised as follows, I give and devise to T. H. to him, his heirs and assigns forever; but in case my son T. H., dies without lawful heir, my will is that the land should descend to my son R. H. and his heirs forever: An estate-tail in T. H. Hill v. Burrow, 3 Call, 342. R. T. 11th May, 1777.--“ I will and bequeath to my son J. T.,—Now if the said J. T. should die, not having any lawful heir of his body, then the said land to go to my youngest son John T." This is an estate-tail in J. T. Tate v. Tally, 3 Call, 354. Testator G. S. (by will, dated 3d Sept., 1803, and recorded June 11th, 1811,) devises to his daughter, P. C., the upper half of his plantation, to be equally divided between her and J. C.; but should she die without heirs of her own body, it is his will and desire that said half of his plantation should be equally divided between his sonin-law, J. C., and his son, A. S. Held, P. C. took a fee-tail,-converted by this act (for abolishing entails)—into a fee-simple; and the devise over, consequently void, notwithstanding the act of 1785, dispensing with words of inheritance in the creation of an estate in fee-simple. [Ante, tit. ConVEYANCES, No. 22, p. 102.] Doe ex dem. See v. Craigen, 8 Leigh, 449; Bell v. Payne, 6 Rand. 73; Bramble v. Billups, 4 Leigh, 90. J. F. 5th April, 1784, gave and bequeath ed lands and personal property, in the same clause, to his son and his heirs forever, "and if my son should die without a lawful heir," remainder over. This is an estatetail in the son, the case not being distinguishable, in principle, from Hill v.. Burrow, and Tate v. Tally. Eldridge et al. v. Fisher, 1 H. & M. 559. A. S. 4th Feb. 1779, devised to his son J. S. certain lands, "to him and his heirs forever; to his son W. S. certain lands, to him and his heirs forever; and to his two sons, John S. and A. S. certain land (designating their respective parts) to them and their heirs forever and it is my desire that, if any of my above four sons, John, J., W., and A., should die without heirs of their bodies, that then the parts of them, so dying, shall be equally divided among the survivors and their heirs.” The devisees took estates-tail. Sydnor v. Sydnors, 2 Munf. 263; Goodrich Harding et al. 3 Rand. 280; Bells v. Gillespie, 5 Rand. 273; Broaddus et ux. v. Turner, 5 Rand. 308; Ball v. Payne, 6 Rand. 73; Haines v. Witmer, 2 Yeates, 400. V. W. M. 1778, gave and bequeathed to each of his four sons, M., T., W., and J., a tract of land, with several articles of personal property to M. and T.;-to his daughters E. J. and S., each a pecuniary legacy, and other articles of personal property; all the rest of his personal property, to his execu tors to be equally divided among his sons; "if it should please God that any of my sons should die, their part or parts to be equally divided among the rest of their brothers, and likewise with my daughters, in case any should die. All which legacies I have given to my sons, I do bind them, their heirs and assigns forever. Each of the sons took an estate-tail. M'Clintic et al. v. Manns, 4 Munf. 328, 330; Clark v. Baker et al. 3 Serg. & Raw. 470-489. J. L. 1st Sept. 1791, devised a tract of land to his daughter H. L. "and to her and the heirs of her body, and to them and their heirs and assigns forever," and "if my daughter H. L. should decease, not having any lawful heirs of her body," then the land to become the property of his son D. L. Is an estate-tail to H. L. by implication. Tidball v. Lupton, 1 Randolph, 194. W. K. by his will dated 1794, devised a tract of land to his son C. K., "and his lawful issue living, as shall be more fully described in a further clause of this will." He then devised other parcels of land to his other children, always adding, "to their lawful issue living." In a subsequent clause, he says, "therefore, each of the dividends and lot as aforesaid, shall and may be held and possessed by each of my children respectively, or their lawful issues living, (as being now more particularly expressed,) but in case either of my said sons or daughters, shall sell the whole or any part thereof, in such case, that dividend or lot shall be forfeited, and be equally divided amongst all the other of my children, if they should be living, or to their lawful issue in case of such parent's death, and so on to their lawful issue so long as there is a child or grandchild to represent me or where any of my children may die without lawful issue living, or die without leaving such issue at the time of their death, in either case, let the survivor or survivors inherit such part: provided, they hold the same conditionally, not to sell, lease for a certain term, or |