This bill was filed to obtain the opinion of the Court of Equity upon several questions arising upon the will of Shadrack P. Allen, which is as follows: "I give and bequeath to Sophonisba A. L. Allen, all the negroes, of every description, that I have received through or by her viz: Ben, Julius, Matilda, Eve, Maria, Jin and her children, Juliet, Lettice, and William, c., and also the undivided negroes of the estate of William Kennedy, deceased, also three hundred and twelve dollars in cash, the amount for which Horace was sold, to her and her heirs forever. In testimony whereof, I have set my hand and seal."
The bill sets forth that one of the above named negro women Jin, had increase, viz., the boy Daniel, before the making of the will; that several of the women of the class received through or by Sophonisba A. L. Allen, who was testator's wife, had increase, seven in number, after the execution of the will and before the testator's death, and one after his death; that several of the women of the class described as the undivided negroes of the estate of Wm. Kennedy, had increase, four in number, after the execution of the will and after the division of the Kennedy property, but before the testator's death, and one after his death; that, besides these slaves, the testator owned other slaves, and real and personal estate, which he had acquired from other sources than the two above specified, of which no mention is made in his will.
The plaintiff, who is the administrator with the will annexed, prays to be instructed by the Court:
Whether the increase of the female slaves mentioned in the
first class as being derived from Mrs. Allen, born after the will was made, and before his death, pass to her by force of such bequest. And whether the one born after his death will thus pass. Also, whether Daniel, born before the making of the will, passes.
Also, whether the increase of the women derived from the estate of William Kennedy, born after the making of the will, passes. And whether the one born after his death passes.
Also, whether the pecuniary legacy bears interest, and from what time.
Whether Mrs. Allen is entitled to the hires of the slaves of the original stocks, and whether to the hires of the increase of these stocks.
Mrs. Allen had no issue; she and one sister of the testator, and the only daughter of a deceased sister, as next of kin of the testator, are made parties defendant, who answered, not contesting the facts set forth in the bill, and concurring in the prayer that the Court will instruct the administrator with the will annexed, as to their rights and his duties in the premises.
The cause was set down for hearing on the bill and answers.
Mr. Shaw's argument was as follows: The principal question arises upon reading the will of Dr. Allen, as to its proper construction and purport, and this is the enquiry in Nos. 3, 4, 5. The will is as follows, and its date is the 21st March, 1835:
"I give and bequeath to Sophonisba A. L. Allen all the negroes of every description, that I have received through or by her, viz., Ben, Julius, Matilda, Maria, Eve, Jin and her children Juliet, Lettice, and William,c., and also the undivided negroes of the estate of William Kennedy, deceased, also $312 in cash, the amount for which Horace was sold, to her and her heirs forever."
The facts are that Horace was one of his wife's negroes;
that the marriage of the testator was on the 22nd December, 1829; that the negroes of Wm. Kennedy's estate were divided the 30th December, 1836, one year and nine months after the date of the will, and the negro William, a child of Jin, named in the will, was born after Dr. Allen had received Jin into his possession.
The female slave Jin had a boy child, named Daniel, born prior to the date of the will, and his name is not mentioned in it.
Other female slaves, both those named in the will and those that were of the undivided negroes of Wm. Kennedy's estate, had issue born between the date of the will and the death of the testator, and also issue born after his death. Mrs. Allen claims to be entitled to the issue of all the slaves named in the will, and of those referred to as "the undivided negroes," without regard to the time of their births, and claims Daniel, the issue of Jin, born before the date of the will, though he is not mentioned in it, by name.
The case shews that the testator having negroes, some of which he acquired by his marriage and some otherwise acquired, made this instrument for the purpose of giving to his wife the negroes mentioned in it, so that they might be her's after his death. In it he speaks of no other negroes except such as had been hers; in it he provides for no one else, and it is concerning her and such negroes as he had acquired by her, and no other kind of his property, that he speaks, throughout. Whatever feelings he might have had for them, he knew that as they were her family negroes, she had a feeling of stronger attachment for them than she had for the rest.
The case also shews that he had no issue by the marriage. This instrument was under these circumstances and with such views made; in it there are found no terms of art, but simply the general and popular language that is used in familiar life. It is by a consideration of this kind of language used by him on this occasion, to this sort of expressions, that the court are to look, and upon them they are mainly to ground their opinion as to what was his intention. The court does,
in order to this, endeavor to place themselves in that position, which it appears to them that the writer occupied, and from which he looked upon the objects, at the time when he began to describe them; because they know that before he began, he had some scheme or plan already conceived, and an intention to point out to others what that was. This is one mode of looking into his thoughts and views, in order to ascertain what was most likely to be, and what was, his intention. The state of his property, his kindred, the relation in which he stood to the property and to the person pointed out for whom he seems to design a benefit, are circumstances tending to show what was his state of mind, what his end and aim in penning down his words. When popular expressions are found, no great stress is to be placed upon the several words that appear, as accurately indicating the thought or intention of the writer; for, not accuracy of expression, but a general resemblance to it, is all that in general can be expected from such single expressions; but in case of such language, the whole of the words used, or all taken together, will generally conduct the mind to the true intention of the writer.
It is understood by her counsel that her claim to the issue of the female slaves is resisted, for some, or all, of the following reasons: 1st. That it cannot, even from the first words found in this instrument, be inferred that it was by the testator intended that she should have more than such negroes as he had received, and became enabled to receive by the law, which, jure mariti, gave him not the issue, but only their mothers.
2nd. That by what is called an enumeration of certain slaves, which occurs next after these words, the previous words are narrowed down, and their function so limited and restricted that she is only entitled to such as are named; that all which he received is shown by what he has named; and named also in order to pass each negro by his or her name, to his legatee; and, therefore, that the issue do not go with their mothers to her. I likewise understand that this enumeration is to
be read without giving any effect to the characters, "c.," found added after certain names; and if so, I have to say, as to this, that I cannot be expected to consent to its being narrowed down, by dropping from it these characters, any more than I can, to the first words being narrowed down by dropping from them the word "through," so as to get rid of its sense.
In opposition to all these objections made against her claim, I will endeavor to show that the scheme or plan of the testator was this: That he separated from the rest of his negroes those which were his wife's family negroes, and of these latter, he appears to have considered them to consist of two classes, viz., one class composed of such as he had reduced into his possession, even Horace that he sold; and the other class, such as he was entitled to receive from the estate of her father; and that as such classes, or, if not as such, then as one whole and entire class or stock, consisting of all his wife's family negroes, he intended to dispose of them to her; and nothing less than the whole, as well the stock as the increase, will satisfy the words "all the negroes, of every description, that I have received through or by her;" also that the words following these general ones, were not used by the testator for the purpose of narrowing these previous ones, nor at all to impair or restrict their function, but for another and different purpose, namely, to show in what sense he intended to apply these general words, and to guard against a misconception of his intention in using them.
It is true, that immediately after the first general words, by which he had already pointed out that it is his wife's family negroes that are thesubject of the bequest, there occurs a videlecet, a. viz., and certain negroes are next described by their names, and at the end of the numbering, there is an et cetera (c.) But to call this mere list of names, without the c., an enumeration, is a misnomer, but provided that the c. were stricken out, then the naming each and every negro would constitute it such; but so long as these characters are apparent on the face of the instrument, they form a part of
it, as well as the names. The word enumeration, according to Dr. Johnson, is the act of reckoning singly, or counting over singly, certain things. According to Mr. Webster, it is the act of counting or telling a number, bynaming each particular article, or, an account of a number of things, in which mention is made of every particular article, and if the testator did attempt to do such an act, it appears by his using certain names and also the et cetera (c.,) that he considered that to make a complete enumeration of the negroes, to which he had previously referred, it was necessary to add the et cetera (c.) to the names. If, however, to the naming, the et cetera be considered as added, and its signification be given to it along with the names, it may then be properly called an enumeration. The characters, c., have as certain a signification as the characters v, i, z; the v, i, z, is a contraction of the word videlicet, (in latin videre licet) and means, according to Dr. Johnson, "to wit," "that is," or "namely," and according to Mr. Webster, it means "to wit," "namely." The characters , c, are a contraction of et cetera, which mean "and others," "and the rest," "and so on;" and the latter, as here used, denote not otherthings, but other negroes, but if other things, then "of the same sort," "of the like kind." See 3 Ire. Eq. 86, Malcom and Gaul v. Purnell, the words "other persons, whom he cannot now specify," added after naming certain creditors, and the sums due them; and also as to the words "other things," see Young v. Young, 3 Jones' Eq. 220. The words et cetera, mean things ejusdem speciei, or ejusdem modi, as found with the named negroes, "with which they stand connected in that clause," these words "are intended of like nature and species with those before specified," and these characters also serve to show, that the testator intended for her other negroes; as if he had said expressly, these named are but a part, there are others. But even if there be, as above admitted, an enumeration, yet it is denied that such enumeration contains any evidence that it was the testator's intention to narrow down the meaning of his previous general words, and without that did appear, the enumeration
simply, however complete, has no such effect as that.
The next words that occur are, "and also the undivided negroes of the estate of Wm. Kennedy, deceased," which show the testator's intention to give them to her, not as individuals, but as a stock, and as forming a part of what are included, or meant to be, in the previous general words.
The next, and last words, refer to a sale, by him made, of Horace, one of his wife's family negroes, and he says that having received by such sale $312, he gives that sum to her.
I have to ask attention to these last and closing expressions in this instrument, and whether it does not appear therefrom, that it was the intention of the testator to give her as well the stock as every part and parcel of interest and profit derivable therefrom. It seems that this, in connection with the fact that he was making a provision for her exclusively and against the claim of every relative, and not out of a part, but by giving to her all of her family negroes, explains what he meant by not only using the word "by," but the word "through" her, can it be supposed that when he referred to the sale of Horace and mentioned his price, and gives that to her, that he intended to make to her a pecuniary legacy, irrespective of the source from whence that money was by his received? And does it not also appear that he intended that no one of the negroes, or the proceeds, income or profit, of any of them, should go to any one but her?
By his mentioning "the undivided negroes," as it might be said that they
did not come within the previous words, viz., "that he had received," he says that they, too, form a part of the bequest, and surely, they are not given as individuals, but as a class or stock. And last, he tells us that Horace's price comes also within the meaning and scope of the first general words, as if he had said, though I did not get the negro's price, jure mariti, yet, I received the price through my marriage with her. With respect to the boy Daniel, the child of Jin, who was born before the date of the will, and is not named therein, it is probable that he knew she had a child lately born, but did not know or remember his name, and on that account added
the et cetera to the names; but, be that as it may, if as is contended, the negroes given were intended to be given as a class or stock, then he is included in the class name. The same remark is applicable to the issue of "the undivided negroes;" Champion and others ex parte, Busbee's Eq. 247, 250.
I understand that it is contended against her, that the words subsequent to the first general ones, show an intention of the testator to restrain the meaning of the first. To this, I answer, by asking where is the evidence of it? Does the clause wherein he recognizes the undivided negroes which he was thereafter to acquire the possession of, denote such an intention? and does the last clause that refers to the sale of Horace, and gives to her the price, show an intention to narrow them? If it be because the last words do more clearly and certainly describe the subject of the bequest, and thereby operate to restrain the generality of the first, then I ask whether the first words will not bear a comparison with the last in point of clearness and certainty, and that comparison be, on the whole, favorable to the first? It appears to me that so far from the last words showing more clearly his intent, they themselves do stand in need of explanation from the first; that each mutually reflect light upon the other, and that the last words do in fact receive as much from the first, as they do convey to the first; but the last do not, in any way, that I can perceive or conceive, restrain the effect and function of the first. If there be any evidence of the last words, or any part or portion of them, showing, or tending to show, such restraint, he that alleges it, should show wherein, as well as its nature, and the extent of it.
But next I say, that from a consideration of one part, even of that of the words called the enumerating ones, it does appear that the testator's intention was to pass the issue, because the issue of one of the females, which issue was born after he had received them, and before the date of the will, to wit, Daniel, the child of Jin, is referred to by the c., and another one of Jin's issue, William, who was also born after the testator received Jin into his possession, is named in the will;
and also by considering another part of the enumerating part, certain negroes are described, not singly, but as a class or stock; and it does, in fact, appear by consideration of the whole of the enumeration, that it was the intention of the testator to give her the issue, and that such intention as fully appears from the subsequent words, all taken together, as from the first general words. I will next present to the consideration of the Court several adjudged cases, that relate to the construction put upon such words as are found in this instrument, and unless I am mistaken in my inference, all of them resemble in certain respects, and some of them exactly, the case before the Court. I think that the reasons and principles upon which their decision is professedly grounded, are applicable to this case; that they do show, that by certain forms of expression used by the testator, respecting the disposition of a female, or female slaves, and upon a fair construction of them, the issue may, and does, pass along with the mother; and that from such words and expressions used by the testator as are found in this case, the Court has inferred an intention to pass the issue along with their mothers, and declared that such is their purport and effect.
1st. Long v. Long, 2 Mur. 19, general words.
2nd. Cromartie v. Robinson, 2 Jones' Eq. 219, general words.
3rd. Drake v. Merrill, 2 Jones' Law, 368, general words.
4th. Fagan v. Jones, 2 Dev. and Bat. Eq. 70, enumeration after general words.
5th. Champion and others, ex parte, Busb. Eq. 247, enumeration after general words.
6th. Caffee v. Davis, 1 Jones' Eq. 8, and remarks of PEARSON, J., 2 Jones' Eq. 221, intention by general words to pass issue.
7th Joiner v. Joiner, 2 Jones' Eq. 71, 74, intention by general words to pass issue. 3 Ire. Eq. 86, "other persons;" 3 Jones' Eq. 220, "other things."
I cite these adjudged cases, as authorities, because I think that in them, is to be found the fact, that from similar words, and such also as are exactly the same as here used, and used on like occasions, it has been established that the courts are
to infer, and do infer, that he that used them, did intend to pass the issue of slaves along with their mothers; that when their mothers are given as a class or stock, that thereby the issue are inferred to be also given. I cite them as containing evidence of a rule or law governing such cases. If this be not the rule found to be applied in these cases, then there is, as yet, no fixed rule established to direct any that do employ such general words and phrases as these, in the use of them; or, to show what they may expect will be the recognized effect of their using them, when they come to be drawn into question before our judicial tribunals.
7th enquiry, with respect to the time from which interest is to be computed upon a legacy. A legacy in money, when no time is fixed for its payment, is payable at the testator's death, and when there are no debts, the executor must pay interest on it from the death; 7 Ire. Eq. 127. It is payable from the time of demanding the legacy, after that legacy has become due; 4 Ire. Eq. 195. When there are debts, interest is not to be chargedagainst the executor, until two years from the probate; 3 Ire. Eq. 9, 15,Hester v. Hester.
6th enquiry, with respect to the hires and profits and the expenses of the slaves. The hires or profits of such slaves as are given to a legatee, go with the principal, i. e., the slaves which are the subject of the gift to her; so also the losses and expenses paid for such as are given to her, must be allowed to the administrator against her; 6 Ire. Eq. 416. The issue of slaves born after testator's death, go to the legatee of their mother; 8 Ire. Eq., Wooten v. Becton.
1st and 2nd enquiry. With respect to the 1st and 2nd enquiries made by the bill of complaint, they are answered as to the negroes and other property, including bank, plank road and gold-mine stock, by Revised Code, ch. 118, sec. 13, and ch. 64, sec. 1 (3), and ch. 26, sec. 31, 5 Ire Rep. 136; and in this case the widow is entitled to one half of the undisposed of surplus, and the residue goes equally to the next of kin.
Every one who reads the testament submitted
to us for construction will, at the first blush, be struck with its singularity in this: it has but one clause; no executor is appointed; it disposes of but one class of the testator's property, to wit, that which he acquired jure mariti, and there is an intention to die intestate as to the other class, to wit, that which he acquired by his own exertions. These circumstances force upon the mind the conviction that it was the testator's intention to give back to his wife all that he got by her. Whether this was in pursuance of an ante-nuptial agreement, or because of the wife's importunity, or because of a sudden freak of temper, excited by a "falling out" or quarrel of the parties, it is unnecessary to enquire. No matter what may have caused it, the fact is apparent on the face of the paper.
So the case falls within the principle established by Jessup v. Jessup, Busb. Eq. 180; Cromartie v. Robinson, 2 Jones' Eq. 219, and many others.
It is clear that the issue or increase of the slaves acquired from the estate of William Kennedy, pass under the general words, without reference to the time of their birth.
It is equally clear that the issue or increase of the slaves which the testator, at the writing of his will, had reduced into possession juremariti, also pass under the general words, without reference to the time of their birth, unless the enumeration has the effect of restricting the meaning of these words.
When two modes of description are used, and there is a discrepancy, that is to be followed, in respect to which there is the least liability to mistake. This rule is well settled. Carter v. Lowe, 2 Jones' Eq. 379, among others, furnishes a striking instance; the testator had loaned to his sonThornton several slaves, to wit, "Lucy" and others; he had also loaned to his son Archer several slaves, to wit, "Sylvia" and others; by his will he gives to Thornton the following slaves, to wit, Sylvia and others, naming them, being the negroes I loaned him some years since; and he gave to Archer the following slaves, to wit, "Lucy, c.," (naming them) being the negroes I loaned him some years since. This enumeration exactly reversed the thing, so there was a discrepancy between the mode of description by the enumeration, and the other mode by reference to the prior loans, and it was held that the latter description was to be followed, because in respect to it there could be no mistake; whereas, he might have forgotten which family of negroes he had given to the one, and which to the other, and so made a mistake in attempting to name them; "but he could not have forgotten the fact of the previous gifts."
Apply the principle to our case; there can be no mistake in the description, "all the negroes of every description that I received through or by her, i. e., that I acquired jure mariti;" but the attempt at enumeration is liable to mistake. Suppose it had omitted one of the old negroes, surely that negro would, nevertheless, pass under the general description. So, if it had omitted a child born before the writing of thewill, (which is admitted to be the fact in regard to one of them,) certainly that child will pass. The same principle applies to a child born after the writing of the will, for it falls under the general words, and is included in the class intended to be given; in fact, it was impossible to include that in the particular description, which accounts for the "c." at the end of the enumeration, whereby it is left open to take in others of the same class that were not named.
This conclusion is confirmed by the further fact, that in regard to the negroes of the estate of William Kennedy, the children born between the writing of the will and the death of the testator, pass under the bequest; and no reason can be suggested why he intended to make it otherwise as to the negroes that he had before reduced into possession, especially in face of the fact, that he adheres so strictly to his intention to give to his wife all that he had acquired jure mariti, as to direct the price of one of the class that he had sold, to be paid to her in cash.
We think it is clear that Mrs. Allen is entitled to the hires of the slaves from the date of the death of her husband, and
on the same principle she is entitled to interest upon $312, directed to be paid in cash; the principal standing for the negro he had sold and the interest for his hire.
PER CURIAM, There will be a decree declaring the rights of the defendant, Mrs. Allen, according to this opinion.