be equally divided among their children; but should either or any of my daughters die without an heir of their own body, it is my will and desire that all the property loaned or given them be equally divided among my grandchildren. The court is of opinion, that the absolute estate conferred upon his daughters, given "to them and their heirs forever," by the preceding clauses, is not affected or limited by the 9th clause. That clause is limited in its operation, in express terms, to property "not herein before particularly disposed of." The latter provision of the ninth clause, in the words, "but should any or either of my daughters die without an heir of their own body, it is my will and desire that all the property loaned or given them be equally divided among my grandchildren," has no reference to the absolute estate already given to his daughters in the previous clauses of the will, but is plainly limited to that devised in the ninth clause. These words, incorporated in the ninth clause, have reference only to such estate as "is not herein before particularly disposed of"—that is, to the property mentioned in that clause, and not to that in which the testator, by clear, explicit and technical words, had already created an absolute fee simple estate. In Mooberry and others v. Marye (supra) the testator gave to his daughters certain lands, decribing them. He then gave them, in separate clauses, certain slaves which had in his lifetime been delivered to them and deeds of gift recorded. The eighth clause of his will, out of which the controversy arose in that case, was as follows: "8th Item. In case of either of my daugh 1877. March Term. Barksdale &als. V. White & als. 1877. March ters' death before they marry, that then their parts be Term. equally divided among the surviving sisters.” Barksdale & als. V. als. The court held, that though the words "their parts' were broad enough to cover the lands devised to them, White & yet it was to be confined to the slaves, upon the ground that this limitation, being connected with clauses of the will having reference to the slaves, could not affect the devisees in fee of the land contained in previous clauses. Judge Roane said, p. 463: "After having dismissed one subject and taken up another, he will not be construed to have resumed the former unless his expressions to that effect be clear and unequivocal." This remark may be applied with equal force to the case before us. Here the testator, after having disposed of the property bequeathed to his daughters in the previous clauses of his will, "to them and their heirs forever," may be said to have "dismissed that subject from his mind and taken up another," to-wit, that which he had directed to be invested in land, and which "had not been" therein "before disposed of." It was to that and that alone to which the latter part of the ninth clause evidently has reference. In Thornhill v. Hall (supra) the testator, after making certain provision for his daughters, married and unmarried, devised to his son R the profit rent in Blachouse; and then provided, "and further, if any of the above legatees should die, or die unmarried, then the property bequeathed to them to be divided equally among the survivors of them." It was held, that the devise to his son R (who died unmarried) was not cut down to a life estate by the clause of survivorship (though in terms it applied to all of the legatees); but that the words of this clause applied to his unmarried daughters only. This case was afterwards taken by appeal to the House of Lords; and the lord chancellor, then Lord Brougham, said (and I quote his language as most apposite to the case before us): "My lords, I hold it to be a rule that admits of no exception in the construction of written instruments, that where one interest is given, where one estate is conveyed, where one benefit is bestowed, in one part of an instrument, by terms clear, unambiguous, liable to no doubt, clouded by no obscurity, by terms upon which, if they stood alone, no man breathing, be he lawyer or be he layman, could entertain a doubt, in order to reverse that opinion to which the terms would of themselves and standing alone have led, it is not sufficient that you should raise a mist, it is not sufficient that you should create a doubt, it is not sufficient that you should show a possibility, it is not even sufficient that you should deal in probabilities; but you must show something in another part of that instrument which is as decisive the one way as the other terms were decisive the other way; and that the interest first given cannot be taken away either by tacitum or by dubium or by possibile, or even by probabile; but that it must be taken away, and can only be taken away, by expressum et certum." 2 Clarke & Finn. R. 22, 36. Applying these principles of the English chancery, and of this court, to the case before us, we are inevitably led to the conclusion, that the absolute estate vested in the daughters of the testator by the five clauses of the will above quoted, cannot be limited or contracted by the subsequent provision in the latter part of the ninth clause, that limitation being confined to the property devised in the ninth clause only. Nor is there anything in the codicil to alter this construction or to show a different intention of the tes 1877. March Term. Barksdale & als. V. White & als. 1877. March tator. It is plain that the testator by his codicil only Term. designed that the land to be purchased should stand in place of the money before absolutely bequeathed, if the occasion should arise for such substitution; but in point of fact no such substitution was ever made. Barksdale & als. V. White & als. We are therefore of opinion, that there is no error in the decree of the circuit court upon the construction of the will of the testator; and the same be affirmed. DECREE AFFIRMED. Richmond. UTTERBACK's adm'r v. COOPER. March 16. 1. Although at common law the appointment by a creditor of his debtor as executor, operated, as against legatees and distributees, with certain exceptions, as a release of the debt, this rule never applied to a debtor who was appointed administrator of his creditor. 2. If the obligor of a bond take out administration to the obligee, and dies, the administrator de bonis non of the obligee may maintain an action for such debt against the executor of the obligor. And so if the debtor administrator is removed from his office the action may be maintained against him by the administrator de bonis non of the obligee. 3. A lien given to secure the debt due from an executor or administrator to his testator or intestate, is of course discharged when the debt is actually paid to the creditors or legatees and distributees of the creditor; but the introducing the debt into an administration account, as a charge to the executor or administrator, is not sufficient to discharge the lien, either as against creditors, legatees or distributees of the creditor, or as against the sureties of the executor or administra tor. 4. A sold to his son U a tract of land, taking his bonds for the purchase money, and a deed of trust on the land to secure them. He died, and his son U qualified as his administrator. Shortly afterwards U obtained a loan of money and stock from C, and gave a deed on this same land to secure it. Upon a bill by C against the adm'r de bonis non of A, and U and his sureties on his official bond, to enforce his lien; the court being of opinion, from all the evidence, that U had not paid any part of his debt to A, though he represented to C he had done it, and that he was fraudulently trying to get rid of the lien in favor of A, in order to raise money for his own purposes, and that C either knew, or might have known, if he had wished it, the facts, and made the loan with a knowledge of them, or in willful ignorance— Held in favor of A's estate and U's sureties, that the lien to secure A's debt was a valid subsisting lien, and had preference of the lien of C. VOL. XXVIII-30 1877. March Term. |