I Act of March 24-June 1, 1838. Ses. Acts 1838, ch. 92. rior or superior, in which the same may be offered for probat, and there be good cause to believe that such inability will be permanent, it shall be lawful E for any two justices of the peace to exhibit to the witness the writing purporting to be the will or testament, and to take his or her evidence upon oath or solemn affirmation, that the testator acknowledged the said writing to be his or her last will or testament, and was at the time of sound and disposing mind and memory, and that the witness attested the same in the presence, and at the request of the testator; and upon a certificate thereof by the said justices, and proof by a credible witness in open court, that the subscribing witness aforesaid is really in the condition before described, it shall be lawful for the court if there be no party contesting the probat of the will, to receive such certificate and proof, and to allow the same legal effect thereto, as if the subscribing witness had given such testimony before the court; and the same in any subsequent contest about the said will, upon any issue before a jury, shall be legal evidence, to have such weight as the jury may think proper. Act of March 3, 1819-January 1, 1820. R. C. ch. 104. 18. 27. All original wills shall be recorded, and shall also remain in the clerk's office of the court wherein they are respectively proved, except during such time as they may be in any superior court, having been removed thither for inspection, by certiorari, or otherwise, after which they shall be returned to said office. ĺbid. and Nov. 1711, c. 2, § 22, 4 Stat. Larg. 28. 19. § 15. It shall be lawful(r) for any court, when any will shall be produced to them for probat, and any witness attesting the same, shall reside out of the commonwealth, to issue a commission or commissions annexed to such will, and directed to the presiding judge of any court of law, or to any notary public, mayor or other chief magistrate of any city, town, corporation or county, where such witness may be found, authorizing the taking and certifying his or her' attestation. If the person to whom any such commission shall be directed, shall certify in the manner such acts are usually authenticated by him, that the witness personally appeared before him, and made oath, or solemn affirmation, (as the case may require,) that the testator or testatrix, signed and published the writing annexed to such commission, as his or her last will and testament, or that some other person signed it, by his or her' direction, that he or she' was of disposing mind and memory, and that he or she' subscribed his or her' name thereto, in the presence of the testator or testatrix,' and at his or her' request, such oath, or affirmation, shall have the same operation, and the will be recorded in like manner, as if such oath or affirmation had been made in the court from whence such commission issued. Jan. 2, 1788, c. 21, 12 Stat. Larg. 502; 1792, c. 92, R. C. [It shall be lawful for any court, when any will shall be produced to them for probat, and any witness attesting the same, shall appear to be in confinement in jail or prison rules, upon any civil process in any other county or corporation of this commonwealth, to issue in open court a commission or commissions annexed to such will, directed to the court of that county or corporation in which such confinement is had, authorizing and requesting the taking and certifying of the attestation of such witness to said will; whereupon, it shall be the duty of that court, to cause said witness to be brought before it in cus 6 (r) The provisions of this section are cumulative; in aid, and not in exclusion of the common law; therefore, if the witnesses are out of the commonwealth, their handwriting may be proved as in other cases. Mutter's will, sup. ct. law, Henrico, (July 10, 1820,) Brockenbrough, J. And see Ld. Carrington v. Payne, 5 Ves. jun. 411; Hopkins v. De Graffenreid, 2 Bay, 187; Engles et al. v. Bruington, 4 Yeates, 345; Nalle's reps. v. Fenwick, 4 Rand. 585; Smith v. Jones, 6 Rand. 37. Act of March 3, 1819-January 1, 1820. R. C. ch. 104. tody of the sheriff, and receive the evidence of his or her' attestation: which evidence shall be entered of record in the court where taken, and certified to the court from which the said commission or commissions issued; which evidence and certificate shall be returned to the proper court, with the commission and will annexed to it as above mentioned, and shall be received as evidence on the question of probat, and shall have the same effect as if the said evidence had been given personally by the witness in the court from whence such commission issued.-The prisoner to be immediately remanded after giving his or her evidence as aforesaid. Feb. 17, 1823, c. 27.] 20. 16. Authenticated copies of wills, proved according to the laws of any of the United States, or of the countries without the limits of the same, and relative to any estate within this commonwealth, may be offered for probat in the general court. [Authenticated copies of wills, proved according to the laws of any of the United States, or of the countries without the limits of the same, having relation to any estate within the limits of this commonwealth, may be offered for probat in the superior or inferior court of any county or corporation, wherein the real estate of the deceased, or the greater part thereof lies, or if there be no real estate, where his personal property or the greater part thereof may be found, in the same manner the same may be done in the general court, under this section. Act of Feb. 20, 1832, c. 69, p. 57.] Or where the estate so devised, shall lie altogether in any one county or corporation, the superior or inferior court of such county or corporation, respectively, may admit to record any such authenticated copies :(s) but, the bond and oath of the executor or executrix,' administrator or administratrix,' with the will annexed, shall be changed from the bond and oath required by law in other cases, in such manner as to the said court shall seem necessary, and the proof to be made by the witness shall be conformed to the nature of the case. But such will shall be liable to be contested and controverted, in the same manner, as the original might have been.(1) 21, 12 Stat. Larg. 503. In the disposal of real property, the lex loci rei sita, governs. United States v. Crosby, 7 Cranch, 115; Robinson v. Campbell, 3 Wheat. 212; Kerr v. Moon, 9 Wheat. 515; M'Cormick v. Sullivant, 10 Wheat. 202; Doe on the dem. of Birtwhistle v. Vardill, 5 B. & C. 438. In the disposal of personal property, the lex domicilii. Desesbats v. Berquier, 1 Binney, 336-349. See Harvey v. Richards, 1 Mason, 381-430. See Stanley v. Bernas, 3 Hagg. 373, 5 Eng. Ecc. R. 140; Smith, adm'r v. Union Bank of Georgetown, 5 Peters's R. 518, in which it was held that the lex fori governed in the payment of debts, and not the lex domicilii. And see Harrison v. Sterry et al. 5 Cranch, 299, J. Marshall, delivering opinion of court. It is not necessary that an executor of a will, made in one state, devising to the executor lands situated in another state, should take out letters testamentary in the state where the lands lie, to enable him to maintain an ejectment for the lands: in such 1785, c. case he sues as devisee under the will, in the right vested in him thereby; letters testamentary not giving the title. Lewis et ux. lessee v. M'Farland et al. 9 Cranch, 151, 152. But the rule is otherwise as to persenal estate. Ibid. and Fenwick v. Sears's ex'ors, 1 Cranch, 259; Dixon's ex'or v. Ramsay's ex'ors, 3 Cranch, 319; Kerr v. Moon, 9 Wheat. 565, 571; Campbell v. Tousey, 7 Cowen, 64; Robinson v. Crandal, 9 Wend. See Childress v. Emorry, 8 Wheat. 642; Doolittle v. Lewis et al. 7 Johns. Ch. R. 45; Cutter v. Davenport, 1 Pick. 81; Dickinson, adm'r v. M'Craw, 4 Rand. 158; Trecothick v. Austin, 4 Mason, 15. (1) See the case of Richard Porall's will, certified from Louisiana, gen. ct. 7 July 1831. This was an authenticated copy of an olograph will, certified under the seal of the court of probat, which was verified by the great seal of the state, under the hand of the governor. It appeared in the record of exemplification that the handwriting of the testator was proved by two witnesses, whose depositions were set out: Held, sufficiently authenticated to admit to probat, under this section, as a will of real and personal property. Act of March 3, 1819-January 1, 1820. R. C. ch. 104. 21. § 17. All persons named as executors in any such will, shall, after the copy thereof has been admitted to record, as above directed, be entitled to a probat of the said will, in the same manner as if the original will had been proved in such court. And, where there shall be no executors named in the said will, or the executors therein named, shall all of them refuse the executorship, the court shall have the same power and authority to hear and determine the right of administration, and to grant a certificate for obtaining letters of administration, with the will annexed, as if the original will had been proved in court. Ibid. [See tit. CONVEYANCES, No. 22, an e, p. 174.] As to lands, the testator speaks at the dute of his will, (except he avails himself of the act of 1785,) and as to personals, at his death. Harrison et al. v. Allen, 3 Call, 289; 1 Wash. 57; Salk. 237; 2 P. Wms. 343; Willes's R. 297, 299. In construing wills, the principal rule is, to collect the intention of the testator from the whole will taken together, without regard to any thing technical, or any particular form of words; and if such intention be lawful, full effect ought to be given to it. Wyatt v. Sadler's heirs, 1 Munf. 537; Rushton's ex'ors v. Rushton, 2 Dall. 244; Smith v. Bell, 6 Peters, 68, 75. We have now [Jan. 1818,] reached the sound rule, that for the purpose of collecting the intention, every part of the will must be considered. That rule was first established by the great judge [Sir Wm. Grant] whom we have just lost, and was confirmed by myself in Bootle v. Blundell, [19 Ves. jun. 521; 1 Merivale, 193]. Per Ld. Eldon, Ch. in Gittins v. Steele, 1 Swanst. 28; Smith v. Bell, 6 Peters, 68, 75. Words, to which a possible meaning may be assigned, are not to be rejected. Shelton's ex'ors v. Shelton, 1 Wash. 59; Smith v. Bell, 6 Peters, 68, 75. If the testator explains the words employed by him, his explanation will be the guide of the court, and not their common, legal, or lexicographical intendment. Carnagy et ux. v. Woodcock et al. 2 Munf. 234. Words in a will are to be construed according to the subject matter to which they are made to apply, by the whole context of the will. The intention of the testator is to govern. Calloway et al. v. Langhorne et ux. 4 Rand. 181. In the construction of wills, the first object is, to gather the intention of the testator from the whole will; and this intention must prevail, unless it violate some rule of law. Land et al. v. Otley, 4 Rand. 213. The intent of the testator is the cardinal rule in the construction of wills; and if that intent can be clearly perceived, and is not contrary to some positive rule of law, it must prevail; although in giving effect to it, some words should be rejected, or so re strained in their application, as materially to change the literal meaning of the particular sentence. Per C. J. Marshall, in delivering opinion of court, in Finlay et al. v. King's lessee, 3 Peters's R. 377. The word property in a will, passes real estate, unless there be other expressions to shew that it is used in a more confined sense. Doe v. Morgan, 6 Barn. & Cress. 512; Mayo v. Carrington, 4 Call, 472. If the general intention of a testator can be collected upon the whole will, particular terms used, which are inconsistent with that intention, may be rejected as introduced by the testator's mistake or ignorance of the force of the words used. And where the latter part of a will is inconsistent with a prior part, the latter part will prevail. Sherratt v. Bentley, 2 Mylne & Keene, 149. The doctrine that, in construing a devise, the general intent is to be preferred to the particular intent, is incorrect and vague. The true rule of construction is, that technical words, or words of known legal import, must have their legal effect, even though the testator use inconsistent words; unless the inconsistent words are of such a nature as to make it clear that the technical words are not used in their proper sense. Doe dem. Gallini v. Gallini, 5 Barn. & Adolph. 621, 27 Eng. C. L. R. 138. Intention is the life and soul of a will, the great point to be ascertained; where it is clear, and violates no rule of law, it must govern with absolute sway, every thing yields to it. Carr, J. in Boisseau et al. v. Aldridges, 5 Leigh, 222, 233-4, and Tucker, P., p. 243. See Tofield v. Tofield, 11 East, 246. But see Fleming v. Brook, 1 Sch. & Lefr. 318, and Stuart v. The Marquis of Bute, 11 Ves. jun. 662. To discover the intention of a testator, parol evidence of his circumstances, situation, connexion with the legatees, and his transactions between the making of his will and death, may be admitted. Shelton's ex'ors v. Shelton, 1 Wash. 56; Kennon v. M'Roberts et ux. 1 Wash. 99, 102; 1 Call, 14. See Crone v. Odell, 1 Ball & Beatty, 449; Tilghman, C. J. in Clayton v. Clayton, ev. Dring, 2 Mau. & olt, 1 Salk. 235; Kellett v. & Beatty, 542; Beachcroft et croft et al. 1 Madd. R. 437; sell, 6 Peters, 75. and declared that she should not be at liberty to sell or dispose of it, and if she attempted so to do, that such sale should be void. The daughter afterwards married: Held, that the restraint on alienation was void, there being no gift over. Newton T Reid, 1 Sim. 141; Brown v. Pocock, 2 Rus. & Mylne, 210. the admissibility of the declarations e testator before, at the time, and after e execution of his will, see Smith v. Fenner, 1 Gallison, 170; Langham v. Sanford, 19 Ves. jun. 649, 2 Meriv. 23, S. C.; Puller, ex'or v. Puller, 3 Rand. 83; Baker v. Marnell, 2 Ball & Beatty, 48; Johnston v. John-his personal estate, at the death of his wife, ston, 1 Phill. R. 460-1. Directing by will "the payment of all just debts," charges the whole estate; which charge is not released by a subsequent selection of particular parts to be sold for that purpose. Trent v. Trent's ex'x et al. Gilmer, 174. See Douce v. Lady Torrington, 2 Mylne & Keene, 600; Withers v. Kennedy, 2 Mylne & Keene, 607; Clifford et al. v. Lewis et al. 6 Madd. Rep. 33; Henrell v. Whitaker, 3 Russell, 343. Testator, after bequeathing the residuum f his estate to his wife during life e widowhood, bequeathed, that the whole d should be equally divided among his sar- Words of survivorship, in such cases, are always to be referred to the period of teststor's death, if no special intent appears to the contrary. Ibid. Testator, in first clause of his will, ap-&c. 9 Leigh, 79. points his executor, and provides that no security shall be required of him, except such as shall be necessary for his just debts; and then adds, "the residue of my estate I confide in him to dispose of as I shall hereafter direct," and directs him to sell all his real estate, except a small part: Held, the real estate is charged with debts. Dunn v. Amey et al. 1 Leigh, 465. B. owning real and personal estate, makes his will, beginning, "It is my will and desire that all my just debts be paid; after that, I wish that C. have $1000, provided my estate will admit of it;" then he bequeaths to C. the greater part of his personal chattels, specifically; making no mention of his real estate, which descends to his heir at law; the whole personal estate proves insufficient to pay debts and the legacy of $1000: Held, that both the testator's debts and C.'s legacy are charged by the will on the real estate descended. Clarke et ux. v. Buck, 1 Leigh, 487. Testator directs that "all his just debts" shall be first paid: this is a charge of all the debts on the real estate devised, for which testator was bound as surety, as well as debts for which he was bound as principal. Poindexter's ex'ors v. Green's ex'ors, 6 Leigh, 504. Testator gave a sum of money for the separate use of his daughter, a feme sole, A testatrix by the first clause in her will, desires that her negro man Kit shall have his freedom, and receive from her estate $50. By the second, she gives to D. A. her negro Harry, and directs that D. A. receive from her estate $100 for the purpose of supporting Harry during his life. By the third, she gives to S. C. $20. By the fourth, she gives to D. A. A. one buffet and one large trunk, and to K. D. one trunk and one patched bed cover. The fifth and last clause is as follows: "I give to my negro Kit above named, a blue cotton bed cover, and to the above named negro Harry one yarn bed cover. I do hereby appoint James Bedgood my executor to this my last wil and testament, and that he shall receive the balance of my estate, if any." The testatrix, besides some furniture worth about $200, dies possessed of $2978 in money: Held, that Bedgood is entitled to this money, as well as to any other balance of the estate. Miars et al. v. Bedgood, ex'or, 9 Leigh, 361. Whether parol evidence is admissible in such a case, to shew that the testatrix did not intend that money should pass by the residuary clause. Ibid. Act of January 10, 1818-January 1, 1820. R. C. ch. 118. 45 6 1. § 1. For the trial of disputed titles to lands in a more simple mode than that which hath most commonly been used of late, the claimant or demandant of an estate in fee simple may sue forth, against the possessor or tenant, a writ of præcipe quod reddat, which, issuing from any court having jurisdiction thereof, shall be in this form or to this effect: The commonwealth of Virginia, to the sheriff of E. greeting: Command C. D. that he, justly and without delay, render unto A. B., tenement containing of land, with the appurtenances, in the county of E., which he claimeth to be his right, and whereof he complaineth that the aforesaid C. D., doth withhold the possession. And, unless he shall do so, then summon C. D., that he appear before the justices of our at on the court, day of next court to shew wherefore he hath not done it. And have you then there this writ. the day of Witness in the year clerk of our said court, at Upon which writ the count shall be in this form, or to this effect: E. to wit: A. B., by F. G. his attorney, demands against C. D., of land, with the appurtenances, in the county tenement, containing of E., and bounded by(a) And whereupon the said A. B. saith that he hath right to have the tenement aforesaid, with the appurtenances, and offereth proof that such is his right. If several tenements be demanded in the same count, the contents, situa (a) If the demandant omits to set forth the boundaries, in his count, it will be error after verdict. Beverley v. Fogg, 1 Call, 484. But, if the count refers to boundaries, "as by a survey made in the cause," 'tis sufficiently certain. Turberville v. Long, 3 H. & M. 309. And, if the count describes the land demanded, as a certain number of acres, part of a larger tract, setting out the boundaries of such larger tract, and the tenant admits by his plea that the description is sufficiently certain, and the verdict ascertains the boundary, the generality of the count is cured, however it might be on demurrer. Lovell v. Arnold, 2 Munf. 167. Where the boundaries are defectively set out in the count, and the tenant, notwithstanding, joins the mise, he is thereby precluded from thereafter objecting to the defect. Ibid. But it seems, that if no boundaries are set out in the count, and nothing seems in the progress of the cause, to supply the defect, and enable the court to give judgment, and the sheriff to deliver possession, the court might refuse to give judgment, and send the cause back for a repleader; the issue being immaterial. Ibid. The count demands "a certain tenement consisting of the one stone house, with the appurtenances, &c." Held to be a demand of the land on which the house stands, and is certain enough. To count by husband & ux. in her right, tenant files a plea in blank throughout, and tenders the mise to the demandant; replication filed by both demandants joins the mise as for male demandant only; assize is charged to enquire whether demandants have right as they demand: Held, after verdict for demandants, the blanks, informalities and bad grammar of plea and replication, immaterial. Snapp v. Spengler & ux. 2 Leigh, 1. In writs of right, all the pleadings must be in writing, and in regular form, to authorize a judgment thereon. Taylors et al. v. Huston, 2 H. & M. 161. If the record of the proceedings in a writ of right, state that the demandant "replied generally," after verdict, the court will intend that the replication was filed in writing. Turberville v. Long, 3 H. & M. 309. If the count be in behalf of two demandants, and the plea only answer as to one, and there be no replication as to either, a verdict and judgment for the demandants will be reversed, and the proceedings subsequent to the count set aside, and the cause remanded for further proceedings. Chichester v. Boggess, 5 Munf. 98. |