MELCHOR V. BURGER.

a condition to a legacy given to his heir-at-law, that the legatees shall permit the persons named in the will to take the lands of the testator, the condition annexed would be effectual, although the devise was void; and the heir must surrender the lands, if he insist on the legacy. This was held in the case of Boughton v. Boughton, in 1750, by the same eminent lawyer, Lord Hardwicke, who decided the case of Hearle v. Greenbank, but the year before. In that case, by a will not executed according to the statute of frauds, real estate was given to A., and a legacy to the testator's heir at law, his granddaughter, and in the will was an express clause, that if any of his children, or any who might receive benefit by his will, should controvert any part thereof, and not comply with the whole, both as to real and personal estate, they should severally forfeit every claim under his will, and what was given to them should go to his residuary legatee. The Chan

cellor determined that this express clause constituted (637) the distinction between this and the other cases; that

in the other cases where there was no condition expressed in the will, but the Court was to imply a condition on the dispositions in the will, it could notice no dispositions but those which were declared with the formalities prescribed by law; but where a condition was annexed to a personal legacy, the Court must examine every part of that conditional bequest, let it relate to what it might-to personal or to real estate, or to any other matter whatever. See Boughton v. Boughton, 2 Ves. Sr., 11. This distinction between an expres and implied condition is perhaps a subtle one. Sir William Grant indeed has observed, that he did not understand why a will, though not executed so as to pass real estate, should not be read for the purpose of discovering in it an implied condition concerning real estate, annexed to a gift of personal property, as it is admitted that it must be read when such condition is expressly annexed to the gift; for that if by a sound construction such condition is rightly inferred from the whole instrument, the effect would seem to be the same as if it were expressed in words. Bradie v. Barry, 2 Ves. & Beame, 130. It was also regarded by Lord Kenyon as an unsatisfactory distinction. Carey v. Askew, 1 Cox, 241. And Lord Eldon has said of it, that it was

MELCHOR v. BURGER.

"such as the mind could not well fasten upon.' Sheddon v. Goodrich, 8 Ves., 197. Yet it has been uniformly held to be well established, and is recognized as a fixed rule of property in the case of Ker v. Wanehope, 1 Bligh., 23-25.

In the case before us, if we are at liberty judicially to notice all the dispositions made, or attempted in the will, there can be no doubt but that it was the testator's intention that the defendant should not have any part of his estate, real or personal, except that specifically bequeathed to her. There were two modes by which this intention might have been carried into execution. He might in terms have annexed as a condition of the bequest, that she should relinquish and forego in favor of his other heirs and next of kin all her claim to the residue of his estate, real and personal. Or he might have made a disposition of this residue to these his other heirs and next of kin. We are obliged to say that

he has not adopted the former mode, but has at(638) tempted to pursue the latter. The words "my grand

daughter shall not be entitled to receive any part of my estate as heir-at-law of Esther Burger, deceased, other than that bequeathed to her by this will," are not subjoined by way of condition to the bequest in favor of his granddaughter; nor do they contain in terms a forfeiture of the bequest in case she should insist on this claim. They are but a qualification of the clause in which he undertakes to dispose of this residue, and except her out of the number of those to whom the residue is given. "It is further my will, that all the balance of my property, both real and personal, shall be divided and distributed according to the laws of North Carolina relating to the estates of intestates, with this exception alone, that my granddaughter shall not be entitled to receive any part," etc., etc. It is a devise and bequest of the residue to certain persons, described by a general designation which would embrace the defendant, were she not excluded, and from which therefore she is excluded. It must have the same operation as if the devisees and legatees had been named, instead of being described as a class, with an exception out of that class. Unfortunately for the plaintiffs, this disposition must be read by the Court, as though it were a disposition of the testator's personal estate

MELCHOR V. BURGER.

only, and therefore the condition of election which the law of this Court implies, is between the specific bequest to the defendant, and the bequest of the residue of the personal estate. The defendant, as one of the testator's heirs-at-law, may therefore insist on her right to a share of the lands descended, without being compelled to make good the devise of these lands, inasmuch as the will contains no devise of them which she would disappoint.

The case is felt to be a hard one. We see, that although the demurrer was sustained below, no costs were given to the defendant. This we think was perfectly correct; but as there has been an appeal from the decree of the Superior Court, and this Court approves of that decree in toto, the defendant is entitled to costs in this Court.

Cited: Tucker v. Tucker, 40 N. C., 84.

(END.)

INDEX.

ABANDONMENT.

See PRESUMPTION.

ABATEMENT.

1. A Court of Equity may at any time during the second term after the death of the plaintiff in a suit, on motion, declare the suit to be abated, though if the representative of the plaintiff were afterwards to apply within that term, the order would be set aside, and the suit be revived, unless such representative had before contumaciously refused to come in and make himself a party. Collier v. Bank, 328. 2. The death of a party to a suit in equity does not vacate nor render inoperative the orders made in the cause while the parties were regularly before the court. When revived it stands upon those orders in the plight in which the death of the party left it. Ibid, 330.

3. No order upon the merits can be made after the death of a party and before revivor. Ibid, 330.

See INJUNCTION, 3, 4, 5.

ACCOUNT.

When an interlocutory order for an account is not reheard nor prayed to be reheard, it ought to be taken as a declaration that plaintiff is entitled to the account prayed for. Bailey v. Wilson, 187.

See EXECUTORS AND ADMINISTRATORS, 1, 10, 16, 17, PARTNERSHIP, 8, 9, 10. PRACTICE, 3.

ACTS OF ASSEMBLY.

Per RUFFIN, C. J. An act which levies money from the citizen should not receive a strained construction against him. If there be a fair doubt he should have the advantage of it. Attorney-General v. Bank, 218.

2. The default of her officers, and even of the legislature itself will not bar the State of a clear right. But their acts under a law which it is contended has given the State a right, commencing with the time of its passage, and continued for many years thereafter, afford strong proof of the sense in which the law was understood by those who passed it. Ibid, 224.

ADMINISTRATORS.

See EXECUTORS AND ADMINISTRATORS.

ADVANCEMENT.

Slaves advanced by parol to a daughter by her father upon her marriage, and remaining in the possession of her husband until the death of the father intestate are, under the act of 1806, (1 Rev. Stat., c. 37, sec. 17,) an advancement at the time of the marriage; and if the daughter die before her father, her husband and not her children are entitled to them. Hinton v. Hinton, 587.