VIRGINIA REPORTS, ANNOTATED. thing proclamed to be sold, professeth a 356 Now a simulation, a feigning himself to be what one is not, i. e. a true bidder, and a dissimulation, an industrious concealment of what he is, that is a seller or sellers substitute, from others interested in knowing what he is, and this with a design to profit by their credulity and ignorance, exhibit a complete and lively contour of that, which, if it must not be called by the name of a dolus malus, or by a name of like meaning, must want a name. a 356-357 seemed to think, that the plaintiff ought not to be relieved in this instance, because, The same defendent, by his answer, in another instance of a public sale, he had and other people had made similar indiscrete bought a slave at a more extravagant price, bargains about the same time, against lieved. which on that *account, the parties suffering by them had not been reif by intromission of by-bidders they were to which the defendent alluded, the parties, upon this is observed: in the cases, led to give extravagant prices for things because perhaps they have not sought relief. which they bought, have not been relieved, if by-bidders did not intromit, the parties were not intitled to relief. the man, who suffers himself to be so much the dupe of epidemical phrenzy, which is supposed to have been prevalent at this time, or of his own desires, as by those standards, to measure the value of things which he buys, instead of measuring the value of them by their utility to him, and congruency with his faculties, can not, on that principle, be discharged from an improvident bargain by neither is the curator, nor hath the power which the roman praetor had (b) to appoint the court of equity, the judge of which a curator, for a prodigal. der, on this occasion, was peculiarly exceptionable. in other cases, And finally, the employment of a by-bidbids against a secret by-bidder, will be restrained by the consideration that the price, bidden by his ostensible competitor, excedes a man, who the true value. Again, the offer of a by-bidder, from the ify a wife, for a nature of the transaction, is a nullity. tiff did not consider the true value; to gratbut in this case the plainsale by auction is a compact between the of obsequious attention and faithful minisseller and highest bidder, whereby the prop-tration, on endeared to her probably by an intercourse family of servants, erty passeth from one to the other. highest bidder therefore must be a bidder he bid the pretium affectionis, which is to whom the property can pass. but to a unlimited, and which therefore wasthe treatment and provided care on the other, one side, in return for benign by-bidder can be no such transition of the WHAT property. for, if the thing proclamed for sale PROMPTER PLEASED. be, in the auctionary language, stricken off THE BY-BIDDER to the by-bidder, the property remaineth unAND HIS changed; he being the agent, and consequently, his offer being the offer, of the seller. The inconvenience, if the practice of bybidding be not tolerated, of which the active defendent seemed apprehensive, from combinations formed to the injury of the seller, may be honestly prevented by his preliminary declaration, that his property shall not be disposed of at less than a certain price, and an exposition of it to sale at that price, or a greater, if a greater be bidden. but a deception, exercised in order to counteract a combination to injure the seller, which may or may not be formed, doth not consist with the praecepts in any system of ethics hitherto approved. (a) Another difference between them is, men most commend him who most deceives them, because Doubtless the pleasure is as great Of being cheated as to cheat. as Butler hath observed, when they are cheated out of their senses only: but when by deception they are injured in their property, they are not disposed to commend him who deceived them.-Note in edition of 1795. The sale ought not to be set aside intirely, a true bidder, can not be now discovered, as the active defendent proposed, although the last price, bidden by the plaintiff, above the defendents agent and by-bidder; but the sale ought to be effectual upon payment because this incertainty was occasioned by of so much tobacco as is equal to the value of the slaves at the time of the sale. would have been directed; but, by the par- lege duodecim tabularum. sed solent Romae prae- proper place, about p. 111: and since the omission APPENDIX. The materials of this Appendix were col- | which may and does happen before the period lected by Mr. Green, for an edition which appointed for vesting; (5) the death of he meditated of Wythe; and were placed at some the disposal of the present Editor, under the circumstances and in the manner men- 363 tioned in the Preface. Together with the dissertations now published, were communicated sundry detached observations upon the cases which our author reports, and numerous references to decisions in pari materia: But, these having been received too late for insertion at their appropriate places, in the body of the work, most of them are omitted: Some, however, of the more important are here preserved, in an arrangement which (it is hoped) will be found not inconvenient. No. 1. of them before it has vested, whether in the testator's lifetime, (6) *or after his decease, (7) occasions a lapse of so much as would, in the opposite event, have become theirs: 2. Where devisees (8) or legatees (9) are Brehman.-The decision of Sir Joseph Jekyll, in Hunt v. Berkley, Mosel. 47: 1 Eq. Abr. 243; 1 Atk 495, oncileable with the doctrine here stated, if the n. S. C. cited 1 West's Hardw. 595; though not irrecpeculiar ground, on which he placed it, be attended to. has nevertheless been repeatedly overruled,that ground having been disapproved. (5) Whether before or after the death of the testator.-In Allen v. Callow, 3 Ves. 289, the testatrix gave a certain sum to and among all and every the children of E. B., living at her (E. B's) decease; and after the date of the will, E. B. died, leaving four children, of whom two subsequently died in the lifetime of the testatrix. As the cause came before the court, there was no occasion to decide, but the Master of the Rolls expressed his opinion, that the death of E. B. had so ascertained the legatees, as that the subsequent deaths among them had caused a lapse of two parts out of four: And this is admitted by Mr. Jarman, to have been, when he wrote, the common opinion. But he maintains, with great force of argument, the contrary proposition, viz. that where the gift is to a class, as such, the persons who shall compose it eventually cannot be reduced 1. Where a testamentary gift of either real to final certainty before the death of the testator. (1) or personal (2) estate is made to several 1 Jarm. Wills, 297-298. And two subsequent cases have been decided in accordance with his views. as tenants in common, whether men3 Hare. 438, Gaskell v. Holmes; 4 Hare 250, Lee v. 362 tioned by name, (3) or described as Pain. It may therefore be regarded as a point now a class, if designated so as to be capa-settled, that such shall be the construction wherble of definitive ascertainment, either at the date of the will, (4) or upon an event LAPSE JOINT-TENANTS.-TENANTS in COMMON.* "Tangitur hic disputatio de jure accrescendi, qua nulla in toto jure nostro creditur esse vel subtilior vel perplexior.” VINNIUS. By the common law,-unless the will order it otherwise, *This article was in its inception designed as an annotation to the case of Pendleton v. Hoomes, Wythe 4, (new edit. 94)-Since it was written, some changes affecting the subject of it have been made, by the "Code of Virginia:" But, as cases arising upon wills, executed on or before and not re-published after, 30 June, 1850, must still be determined by the law in force aforetime; (V. C. 849, ch. 122, sec. 22; ch. 216, sect. 1:) the text is allowed to remain unaltered, and the changes that have been mentioned are pointed out in the notes. (1) 8 Mod. 123, Goodright v. Opie; 9 Mod. 157, Barker v. Giles: 11 Mod. 392; 2 P. Wms. 280; Sel. Cas. Ch. temp. King, 17; 3 Bro. P. C. 2d edit. 104. S. C. Mosel, S. C. cited: 42, Page v. Page: 2 Stra. 820, S. C.; Willes. 293. Doe v. Underdown: Andr. 2d edit. append. viii. S. C.; 2 Wm. Blackst. 737, S. C. cited: 1 Ves. sen. 70, Sperling v. Toll; Belt's Suppl. 1st edit. 52. S. C.: 5 Ves. 744, Reade v. Reade; 1 Sugd. Pow. 6th edit. 530. et seq. ever there is not a sufficient indication of a different intention. But surely it cannot be doubted, that as the testator may postpone until some time after his death the period for ascertaining the constituent members of the class, (14 Ves. 256, Hughes v. Hughes; 2 Beav. 25. Wordsworth v. Wood: 4 Myl. & Cr. 641. S. C.: 2 Jarm. Wills, 73 et seq) provided he do not exceed the allowed limits of executory devise, (4 Beav. 248, Griffith v. Blunt: 12 Sim. 218, Comfort v. Austin; 1 Jarm. Wills, 226, et seq.: Lew. Perp. 455-463, 511-533;) so he may by a clear manifestation of his will, annex that period inseparably to an event which either shall certainly, (if at all.) or may contingently, happen in his lifetime. See the observations of Lord Brougham, 7 Cond. Engl. Chanc. Rep. 130, Palin v. Hills; 1 Myl. & K. 470, S. C. (6) As in all the cases cited in notes 1, 2 and 4. [The possible number of such cases is not diminished by the provision in Va. C., 1849, ch. 122, sect. 11; that "a will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.”— For, as Mr. Jarman has observed, upon the same words in Stat. 7 Wm. 4; 1 Vict. c. 26. s. 24; this enactment relates to the subject-matter of disposition the construction in regard to the objects of gift." 1 Jarm. Wills, 291-292. Accord. 1 Wms. Ex'rs 4th edit. 182.] (2) 1 P. Wms. 700, Bagwell v. Dry: 2 P. Wms. 489, Page v. Page: 532, Cray v. Willis: 1 Atk. 494, Owen v. Owen; 1 West's Hardw., 593, S. C.; 1 Ves. sen. 542, Peat v. Chapman; 2 Ves. sen. 93, 99, Painter v. Salis-only, and does not in any manner interfere with bury, cited: 285. Jackson v. Kelley; 1 Bro. C. C. 503, Ackroyd v. Smithson; 2 Dick, 566; 3P. Wms. 22, Cox's note 1. S. C.; 5 Myl. & Cr. 62, Easum v. Appleford; 3 Hare 84. Norman v. Frazer; 1 Collyer 416, Harris v. Davis: 1 Ired. Eq. Rep. 31, Nelson v. Moore: 2Ired. Eq. Rep. 330, Hester v. Hester; 7 Ired. 9. State (use of Barnes) v. Shannonhouse; 10 Serg. & R. 351, Craighead v. Given. (3) As in all the cases cited in notes 1 and 2. (4) 2 Sid. 53, 78. Packman v. Cole; Rich. Wills, 2d edit. 170. S. C.; 2 Stra. 905, Man v. Man: W. Kel. M, S. C.: 3 Ves. & B. 54, Ackerman v. Burrows: 13 Price 332. Bone v. Cooke: McClell, 168, S. C; 3 Myl. & Cr. 688. Barber v. Barber: 11 Sim. 307. Bain v. Lescher; 7 Beav. 49, Havergal v. Harrison; 3 Ired. Eq. Rep. 426, Johnson v. Johnson; 5 Binn. 115, Weishaupt v. (7) 9 Sim. 363. Hustler v. Tillbrook: 2 Edw. Ch. Rep. 156, Marsh v. Wheeler. See also, 3 P. Wms. 20, Cruse v. Barley; 3 Ves, 236, 536, Mackell v. Winter; 4 Ves. 399, Booth v. Booth. (8) Orl. Bridgm. 384. Davy v. Kemp; Carter 2, s. c.; 1 Vern. 425. Cock v. Barrish; 1 Salk. 328. Bunter v. Coke; Cas. temp. Holt 248, s. c.: 9 Mod. 157, Barker v. Giles; 11 Mod. 392; Sel. Cas. Ch. temp. King 17: 3 | Bro. P. C. 2d edit. 104: 2 P. Wms. 280, s. c.: 331, Rider v. Wager: 2 Yeates 525. Robinson v. Martin: 4 Greenl, 486, Anderson v. Parsons.-See 1 Metc. 358, Sackett v. Mallory. (9) Prec. Chanc. 37, Scoolding v. Green; 1 Eq. Abr. constituted joint-tenants, such of them as 365 survive are, in similar circumstances, entitled to the whole: are 3. Where a devise (10) or bequest (11) is to a class as such, of which the members unascertainable, indeterminate, and contingent until the period of vesting; if, when that period arrives, there be living any persons, or a single person, (12) 364 answering the description, to them or him, as alone constituting the class, the entire subject is deemed to be given. In every particular the effect is the same, as if such persons or person, and none other, had been expressly nominated to take it. Whoever become eventual, are likewise from the beginning sole, objects of the testator's bounty. And therefore, as to the question of lapse by death, in cases of this description, it can never be material whether the devisees or legatees, if eventually more than one, would take under the will as joint-tenants, (13) or as tenants in common. (14) In cases of the two former descriptions (15) the law has undergone 298, s. c.: Mosel. 187. Cray v. Willis: 3 Ves. 628, Morley v. Bird; 2 Yeates 525. Robinson v. Martin. (10) 4 B. Monr. 24, Rogers v. Moore's devisees. See also Wythe 94, Pendleton v. Homes.-It is on this ground, though not so explained in the reports, that the decisions in Hayes v. Ward. 2 Ridg. P. C. 85. (on the first question put to the judges,) and Ballard v. Ballard, 18 Pick. 41, seem properly to rest. To prevent a misconception of the last mentioned case, in reference to the question mainly discussed in the text, it is proper to observe, that though the devise in it was in terms which would have made the devisees joint-tenants by the common law, yet in fact it made them tenants in common by force of a statute of Massachusetts enacted in 1785, not mentioned nor alluded to in the report, but noticed in the cases of Shaw v. Hearsey, 5 Mass. Rep. 521; Miller v. Miller, 16 Mass. Rep. 59: and Annable v. Patch, 3 Pick. 360: and which, as to this matter, was the same in effect with the enactment in Mass. Rev. Stat. ch. 59, sec. 10, 11. *a modification in Virginia, (16) where devisees or legatees dying be the case of a devise or bequest to several as joint tenants, because by the common law the death of some of them in the testator's lifetime occasions no lapse, the prevention of which is the avowed object of the statute. And he subjoins that, upon the same reasoning." the case of a devise or bequest to a class is equally without its reach. 1 Jarm. Wills, 313. But how sound soever in England, especially since the statute has received there the construction, which is mentioned in note 26 post; this argument would be manifestly fallacious, if applied to the acts above alluded to. Both they and the statute direct, not only that the devise or bequest shall not lapse, but moreover that it shall take effect, or be good and available, or vest, in like manner "as if the devisee or legatee had survived the testator." or had died "immediately after the death of the testator."-Now, under such circumstances, how would the devise or bequest have taken effect? In the case of a gift to several individually, as joint tenants, the predeceased would have been among the takers; and though the jus accrescendi would upon their dying afterwards, have carried all to the survivors, in England, upon which ground, if not upon that mentioned by Mr. Jarman, the statute has produced, in such cases, no change whatever there: yet in Virginia and Pennsylvania, the like consequence would not have ensued. (see note 22.) and therefore, in cases of this description, the law has received here the modification mentioned in the text. See 1 Tuck. Comm. edit. 1836, B. 2. p. 298. As to cases of the first description, or devises and bequests to designated individuals as tenants in common, see note 81. But [though not upon Mr. Jarman's "reasoning." the case of a testamentary gift to a class, of which the members are unascertainable, endeterminate, and contingent until after the testator's death, seems to be unaffected by either the acts or the statute: for, in such a case, only those who answer the description at the proper time being devisees or legatees, it is impossible that any devisee or legatee can die in the testator's lifetime. [And in accordance with this view is a decision of the Supreme Court of Pennsylvania, made since this note was written. 10 Barr, 360, Gross's estate.] Tamen ride 18 Pick. 41, Ballard v. Ballard. (16) By "an act to prevent the lapsing of legacies and devises, in certain cases. by the death of the legatee or devisee in the lifetime of the testator," passed 15 Jany. 1813, (Sess. Acts.. ch. 19, sect. 1;)-the material words of which are as follows, except the words within brackets: "Whensoever any estate of any kind shall or may be devised or bequeathed by the testament and last will of any testator or testatrix, to any person being a child or other descendent of such testator or testatrix, and such devisee or (11) 2 Cox 190. Viner v. Francis; 2 Bro. C. C. 658, S. C. 4 Madd. 377. Thornhill v. Thornhill. (which quoad hoc seems to be good authority still, notwithstanding it has been in another respect im-legatee shall, during the lifetime of such testator pugned. 8 Sim. 356, n. Collins v. Collins: 356, Smith or testatrix, die, testate or intestate. leaving a child v. Smith: 2 Keen 701, Le Jenne v. Le Jenne: 2 Hare or children, or one or more descendents of a child 271. Gray v. Garman; 2 Myl. & K. 295, Knight v. or children. [who shall survive such testator or tesGould: 4 Myl. & Cr. 95, Shuttleworth v. Greaves; 7 tatrix:] in that case such devise or legacy to such Beav. 296, Castle v. Eate: 1 Collyer 320, Cort v. person, so situated as above mentioned, and dying Winder: 2 Con. and Law. 528, Shaw v. McMahon; 4 in the lifetime of the testator or testatrix, shall not Dr. & War. 431, 438, S. c.; 7 Yerger 606, Frierson v. lapse; but the estate so devised or bequeathed shall Van Beuren. See also 2 Vern. 743, Bird v. Lockey; descend and pass to the heirs, devisees, distributees, lega3 Pick, 213. Miles v. Boyden: 2 Dev. & Batt. Eq. Rep. tees, or legal representative, as the case may be, of such 52. Vaughan v. Dickens: 11 Gill and J, 328. Young v. devisee or legatee, in like manner to all intents or purRobinson. The decisions of Lord Thurlow. in Mar- poses in law or equity, and subject to like debts, charges. tin v. Wilson, 3 Bro. C. C. 324, and Lord Lough-liabilities, and conditions in all respects, as if such devisee borough, afterwards on the same will, ibid. Belt's or legatee had survived such testator or testatrix. and had note 2; appear to be now exploded, notwithstanding then died testate or intestate." The words within the countenance so recently shewn them by Chan- brackets were added at the revisal of 1819; and at cellor Walworth, in Mowatt v. Carow, 7 Paige, 341- the same time those in italics were omitted, and in 342. lieu thereof the following were inserted: "Vest in (12) 13 East 526, Doe v. Sheffield; 2 McCord's Ch. said child or children, descendent or descendents Rep. 440, Swinton v. Legare. See also, 2 Vern. 106, of such legatee or devisee, in the same manner, as Crooke v. Brookeing: 2 Stra. 1172. Oates v. Jackson; if such legatee or devisee had survived the testator 7 Mod. 439, S. c.; 3 Bro. P. C. 2d edit. 442, Wicker v. or testatrix, and had died unmarried. and intesMitford: Harg. Law tracts, 511; 1 Harg. Jurisc. tate:" And with these alterations the act of 1813 Exerc. 222, S. C; 2 Beav. 221, Blease v. Burgh. was then re-enacted. R. C. 1819, ch. 104, sect. 5.-Alike modification of the common law was introduced in Pennsylvania, by "an act to prevent devisees and legacies from lapsing in certain cases," passed 19 March, 1810, in the following words: "From and after the passing of this act. no devise or legacy in favour of a child or other lineal descendant of any testator shall be deemed or held to lapse or become void by reason of the decease of such devisee or legatee in the lifetime of the testator, if such devisee or legatee shall leave issue, surviving the testator, but such devise or legacy shall be good and available in favour of such surviving issue, with (13) 2 Atk. 220, Buffar v. Bradford: 1 Cox 248. Freemantle v. Freemantle; 1 Jac. & W. 388, n. Vaux v. Henderson; 2 Ridg. P. C. 85, Hayes v. Ward, on the second and third questions put to the judges. See also 13 East 526, 537. Doe v. Sheffield. (14) As in all the cases cited in notes 10 and 11, and the two first cited in note 12. (15) In commenting on the recent English statute of wills, 7 Wm. 4 & 1 Vict. ch. 26, s. 33, (2 Jarm. Wills, 764,) which contains a provision in pari materia with the acts cited in the next succeeding note; Mr. Jarman expresses the opinion, that it does not touch fore the testator are related in a certain | 366 *it remains unaltered in every other manner to him, (17) and (18) leave respect, where the will creates a issue living at his death. (19) But tenancy in common; (20)-whether it does also in the contrasted case of a will that like effect, as if such devisee or legatee had sur: creates a joint tenancy depends on the effect vived the testator: Provided always that nothing herein contained shall be construed to affect any of a statutory provision in these words: if devise or legacy contained in the last will of any partition be not made between joint-tenants, testator who shall have deceased before the pass whether they be such as might have been ing of this act: And provided also, that nothing herein contained shall be construed to defeat the compelled to make partition or not, (21) or intention of any testator, to exclude such surviv- of whatever kind the estates or thing holden ing issue or any of them." Dunl. Laws of Penn. ch. 175. On this act arose the case of Newbold v. Prich- or possessed be, the parts of those who die ett. 2 Whart. 46, which is mentioned in note 26, post, first shall not accrue to the survivors, but (17) [This is altered by V. C. 1849, ch. 122, sect. 13, shall descend or pass by devise, and shall which enacts, that if a devisee or legatee die be- be subject to debts, charges, curtsey or fore the testator, leaving issue who survive the tes: dower, or transmissible to executors or adbequeathed, as the devisee or legatee would have ministrators, and be considered to every done. if he had survived the testator, unless a dif- other intent and purpose, in the same manferent disposition thereof be made or required by ner as if such deceased joint-tenants had the will." been tenants in common." (22) tator, such issue shall take the estate devised or (18) See 7 Mass. Rep. 86, Fisher v. Hill; 18 Pick. 41, Ballard v. Ballard. See also 1 Ashm. 242, Common- 367 wealth v. Nase; 2 Ired Eq. Rep. 330, Hester v. Hester. (19) Devisees and bequests, which by their terms do not vest in the instant of the testator's decease: *Judge Lomax, in his Treatise on the Laws of Executors and Administrators, (23) states his impression, (it would be unwarranted by what he has said, and (20) 1 Ashm. 242. Commonwealth v. Nase: 2 Watts 185. Allison v. Kurtz: 2 Leigh 642. Frazier v. Frazier's exrs. From the marginal abstract of this (last mentioned) case it would seem that the bequest in it was to the legatees as joint-tenants; but it appears in the report at large (p. 645,) and it is particularly noticed in the opinion of the court, (p. 649.) that it was to them as tenants in common. This inadvertance, which was not material in regard to the point then in the reporter's view. seems to have occasioned some perplexity to a learned writer, (1 Tuck. Comm. edit. 1836, B. 2, p. 298,) and for that reason, and because it connects immediately with the point principally discussed in the text it has been thought advisable thus to point it out. See note 78. (21) See 3 Rand. 187, 190. Thornton v. Thornton. but are contingent upon the devisee's or legatee's surviving until some subsequent period, are clearly not within the statute or any of the acts mentioned in notes 15, 16, [and 17.] 1 Jarm. Wills. 313; 1 Tuck. Comm. edit. 1836, B. 2, pp. 298, 443.-And this was doubtless designed, inasmuch as such devises and bequests stand, in this respect, on the same ground as testamentary gifts to classes of which the members are unascertainable as long as the testator lives. But it was owing probably to mere inadvertence, that the statute in England and the acts of 1819 [and 1849] in Virginia were so worded, as to leave it at least doubtful whether they operate in favour of any descendent of a pre-deceased devisee or legatee, but such as unite in themselves the condition of being in esse both at the death of such devisee or legatee and also at the death of the testator. 1 Jarm. Wills. 312-313; 1 Rop. Leg. 4th edit. 466. In reference to cases arising under V. C. 1849, it is material to remark two passages in a work of uncommon learning and, in general. of uncommon accuracy: the first in these words,-"It has been decided, that [7 Wm. 4. & 1 Vict. cap. 26, sect. 33, does not apply to a testamentary appointment:" and the second in these,-"The authorities demonstrate, that if the bequest be made after the act came into operation." the act will apply to a case where a child died before the will was made, but after the act came into operation" 2 Wms. Ex'rs, 4th edit. 1050. Both of which passages, however, must be trusted with some degree of caution. As to the first, the case to which it infers is, in another learned work, mentioned as follows; "It has been decided by Griffiths v. Gale, [12 Sim 354,] that the section does not apply to a child. to whom a share of a fund is given by the testamentary appointment of a parent, in exercise of a power of selection, and which child dies in the lifetime of the donee of the power. The language of the judgment would seem to apply to all testamentary ap pointments whatsoever: but it may be questioned whether the 33rd coupled with the 1st section of the act does not apply to testamentary appointments under general powers, which give the douee an absolute control over the property: and especially where, in default of appointment, the property is given over absolutely to the donee." See V. C. 1849, chap. 122, sect. 1, 13. And as to the second, it is observable that in each of the only two authorities that seem to support it. [1 Roberts. 363, Skinner v. Ogle: 4 Notes of Cases 74, S. C. 5 Hare 306, Winter v. Winter: 5 Notes of Cases 2, n. S. C.] the will was made in the lifetime of the legatee, though before the statute went into operation, being afterwards revived by codicil; and in one of them only did the leg-stroying the jus accrescendi, will have any effect atee die before the making of the codicil. If he were dead before even the will was made, quaere whether [at least in Virginia] the decision ought not to be different: agreeably to that which was made in Linsday v. Pleasants. 4 Ired. Eq. Rep. 320.-Where he died after the will was made, but before the statute went into operation, it was held that a codicil reviving the will subsequently to the latter period did not bring the case within the section we are considering. 5 Notes of Cases 1, Wild v. Reynolds. (22) Enacted in Virginia, 28 Nov. 1786. (R. C. 1819, ch. 98. sect. 2:) and in Pennsylvania, 31 March, 1812. (Dunl. Laws of Penns. ch. 190,) in precisely the same words, with the addition of the following: "Provided always, that nothing in this act shall be taken to effect any trust estate." [The following are the provisions in pari materia, contained in V. C. 1849, ch. 116. "S 18. When any joint-tenant shall die, whether the estate be real or personal, or whether partition could have been compelled or not, his part shall descend to his heirs. or pass by devise. or go to his personal representative, subject to debts, curtsey, dower, or distribution as if he had been a tenant in common. *** § 19. The preceding section shall not apply to any estate which joint-tenants have as executors or trustees, nor to an estate conveyed or devised to persons in their own right, when it manifestly appears from the tenor of the instrument, that it was intended the part of the one dying should then belong to the others." In both these states the question propounded in the text is believed to be as yet unaffected by direct authority properly so called. In North Carolina there is a statute, passed in 1784. which, from the account of it in 3 Griff. Law Reg. 322, appears to be similar, and in that state the question has been recently stated, and waived by Ruffin. C. J. as follows: "A distinction prevails in England between legacies given to two or more. jointly or in common. The former upon the death of one of the donees, survives to the other, whether the death be before or after the testator's. That is supposed to result from the right of survivorship incident to the joint tenancy.-Whether that be the reason or not, or whether our act of 1784. deupon the point here, it is not material to inquire in this case, since the words of this will clearly create a tenancy in common" 3 Ired. Eq. Rep. 429, Johnson v. Johnson. See further concerning the North Carolina authorities, in note 61. (23) Vol. 2. pp. 50-51. In Sloan v. Hanse, 2 Rawle 28. counsel arguendo made the same point: but the facts of the case did not raise the question, which, therefore, was not noticed by the court nor is any reasoning of the counsel in support of their position reported. See note 78. might be doing him injustice, to represent | their executors or administrators if perit as his deliberate or even positive opin-sonal, and to either (according to its kind) ion,) that since this statute, "the rule would subject to every liability that would have be the same where the [devise or] bequest was made to the [devisees or] legatees as 369 joint-tenants, as where it was made to them as tenants in common." But his reasons are not given (24) And a careful consideration will (perhaps) bring us to the opposite conclusion. 368 attached, had the deceased themselves been the sole owners. *Nor, except where it so disposes of them, does it in terms withhold those parts from the survivors, or declare that they shall be, to any intent or purpose, considered as if the deceased had been, not joint-tenants, but tenants in common. And therefore, (28) the effect ascribed to it, by the learned writer just now quoted, must be produced (if at all) indirectly, and as a consequence of its having abolished, in whole or in part, what before was the foundation of the doctrine it is supposed to have subverted. What then was that foundation? It has been suggested, (29) that it was the jus accrescendi ; (30) which, until the statEven under the existing law, [as it stands in R. C. 1819, ch. 104, sect. 5, the opinion has been expressed by a writer of great respectability. (1 Tuck. Comm. edit. 1836, B. 2, p. 298, n.) that it is liable for them: but that appears to be a mistake. Whoever will compare the original and amended forms of the act, will probably think the comparison sufficient to prove this; but. if more be required, all doubt upon the point must be moved by the following extract. replete with sound argument, from the opinion delivered by Sergeant J. in Newbold v. Prichett, 2 Whart, 49. "If a benefit was contemplated to the devisee or legatee himself, for to his creditors.] there is no reason why it should not be conferred on him [or them] whether he had issue or not. It is plain, that it was for the issue only, the law was passed. They are to take with like effect, as if the devisee or legatee had survived the testator; but it is only they, who are to take. And where there are no issue, [that outlive the testator.] a lapse occurs as before." As was said by the Supreme Judicial Court of Massachusetts, respecting a similiar statute of that State, the issue in such cases "are pur It is manifest, that the statute has no direct operation but where an interest has become vested, in "those [of the jointtenants] who die first." (25) In diametrical opposition to what happens in every case of lapse, (26) it gives the parts of those so dying as their property, to their heirs or devisees if real, to (24) Beyond what may be gathered from the brief expression.-"as survivorship has been abolished." (25) 3 Rand. 189, Thornton v. Thornton. Until the death of the testator his nominated devisees or legatees cannot with any propriety of speech, be called either joint-tenants or tenants in common; since, during his life, the property is not theirs, in any sense whatever. Of this the following proof and illustration is remarkable, from the singular combination of the circumstances. A. made B. her universal legatee, giving him all she might possess on the day of her death, and died in the lifetime of B. The latter having previously made a similar will in favor of A., died afterwards without revoking it. And it was held. that the property bequeathed by B. to A. vested, under the Maryland act of 1810. ch. 34, in her personal representatives; and that her disposition of her whole estate in favour of B. did not carry the estate bequeathed to her by B.. since as to it she had had a mere expectancy of benefit. to be derived from his will, and not such an interest as to render it the subject of any testamentary gift she could make. 7 Gill and J. 362, Glenn v. Belt (26) According to all the cases, amounting now.to a very great number, by the common law, [which, as to the particulars here stated, is not altered in any manner contrary to what is here stated, by V.chasers, and take by a sort of statute devise," or C. 1849, ch. 122, sect. 14,] the subject of every lapsed devise or bequest, to the extent of the lapse, passes as the property, not of the devisee or legatee, but of the testator. and (according to its kind and the particular provisions of his will) to the heirs or next of kin, or other devisees or legatees, of the latter. And where it goes, by his will. to the persons who answer the description of heirs, next of kin, personal, or legal representatives, or the like of the pre-deceased devisee or legatee, they take not in those characters respectively, nor by derivation from the person, towards whom their bearing such relation is what brings them within the de-lapse does not "occur as before," that is to say, the scription, and so entitles them,-but as purchasers immediately from the testator.-3 Bro. C. C. 224. Bridge v. Abbott; 1 Myl. & K. 470, Palin v. Hills: 2 Beav. 67. Cotton v. Cotton: 2 Yeates 578. Ware's lessee v. Fisher: 1 Gratt. 302. Dickenson v. Hoomes.In commenting on the recent English statute, cited in note 15. Mr. Jarman expresses the opinion that, in cases within its operation. the subject of the devise, or bequest is, to all intents and purposes, constituted the disposable property of the devisee or legatee, whose death makes the contingency that is provided for: and that, as such, it must follow the disposition of his will, so far as that is capable of disposing, and does dispose of after-acquired property. 1 Jarm. Wills, 314. And this exposition, --which is advocated by another learned writer, (Sugd. Wills, 111-113.) though controverted with much earnestness by a third, (Worth Wills, 4th edit. 459-166,)-has been since established by a decision in point. 3 Hare 157, Johnson v. Johnson. But, upon the same point precisely. the Pennsylvania statute in pari materia has received the contrary construction. 2 Whart. 46, Newbold v. Prichett.-See also 7 Gill & J. 362. Glenn v. Belt, stated in the last preceding note. And the Virginia statute, in its pres-not denied by the rest of the court, that if a devise ent form, [prior to code of 1849.] clearly requires the same interpretation; although, as it was first enacted, it did, with equal clearness treat the subject of the gift as the property of the pre-deceased devisee or legatee, not only in regard to its devolution, but also in regard to its liability for his debts. bequest TO THEM. 7 Mass. Rep. 87, Fisher v. Hill. See also 3 Munf. 50, Patton v. Williams. The exact truth seems to be, that in all cases coming within the acts now in force [prior to 1st July, 1850.] both in Pennsylvania and in Virginia, there is-despite the contrary language misemployed by the respective legislatures, and necessarily, in order to effectuate their design.-a lapse; nay, more-the acts themselves have introduced a lapse, in case of joint devises or bequests, (see note 15,) where but for them, if the doctrine maintained in the text be sound, there would have been none:-but then the consequences are not now the same as formerly, nor in those cases the same as in others. On the contrary, the acts have made them to be almost, but (as I have pointed out in note 19) not altogether. the same as if the testator had erased the name of the pre-deceased devisee or legatee, wherever it occurred in his will, and in lieu thereof inserted some appropriate designation of his issue. (27) The statute says, "tenants in common." But the effect is the same, as might be proved in detail by an accurate induction of particulars; it seems, however, sufficient to refer to the paragraph of the text corresponding to notes 78-84. (28) From the premises perhaps we might, without any serious risk of error, deduce the conclusion that wherever an interest has not become vested in the joint-tenants, during their lives, the statute has not been productive of any change whatever. But the more limited inference in the text seems sufficient for the occasion; and it has the advantage of being indubitable. (29) See note 22. From the turn of his expression this appears to have been Judge Lomax's opinion. (30) Note, it was said by Chief Justice Holt, and be to A. and B. and their heirs, and A. dies before the testator, the other shall have the whole by survivorship." 1 Show. 91. Eddlestone v. Speake; Cas. temp. Holt 222, S. C. See note 125 post. In what sense the Chief Justice used this expression may be collected from what he said on another occasion, "There |