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although the lands were acquired by the testator after SMITH the date of the will.

& OTHERS

The will expressed a desire that all the just debts of EDRINGthe testator should be paid by his exccutors, as soon as TON. the means in their power should permit. It also au-'. thorized his executors to dispose of and convey any of his property that might be necessary for payment of his debts; and afterwards it has these expressions, “should “ my son, Wm. P. Edrington, to whom I bequeath the “ whole of my property, after the payment of my debts, 6 and provisions above made, die under the age of 21 “years, I then give,” &c. The testator then proceeds to make certain pecuniary bequests, in the event of his son's so dying, and concludes by disposing of the residue of his property. .

At the date of the will the testator had no lands. Those which the bill sought to charge were purchased a short time before his death.

By an act of the legislature of Virginia, in force at the date of the will, 1 Rev. Co. P. P. 160, it is enacted, “ that every person aged 26 years and upwards, being 66 of sound mind, and not a married woman, shall have “ power, at his will and pleasure, by last will and testa“ment in writing, to devise all the estate, right, title “ and interest in possession, reversion, or remainder, só which he hath, or at the time of his death shall hare, "of, in, or to lands," &c.

The Court below dismissed so much of the Complainant's bill as sought to charge the lands in the hands of the heir, and they appealed to this Court.

E. I. LEE, for the Appellants.

The only question in this case is, whether the lands passed by this will to the devisee, W. P. Edrington. For if they did, he took them subject to the debts of his father, by the terms of the will.

By the statute they would pass, if such was the inten tion of the testator.

SMITH That such was his intention is to be inferred from & OTHERS the following facts which appear in the case.

.

EDRING

TON.

It is evident from the will that he meant to dispose of his whole estate ; and that his just debts should be paid at all events. He bequeaths to his son, his whole property, after payment of his debts, and certain specific legacies. In the summer of 1803 or 1804, the testator off red to convey this land in payment of bis debt to the Complainants, which shows that he looked to the land as a fund for that purpose, and that he did not mean to cheat his creditor's by converting his personal estate into lands.

The intention of the testator is to be collected not only from the word his will, but from his acti. 1 Wash. 96, Kennon v. M Robertsid. 266, Shermer. v. Shermer.

TAYLOR, contra.

Under the statute of Hen. 8 (of wills) it has always been holden in England that no after-purchased lands can pass by a will. This will must have the same construction as if the devise had been to a stranger instead of the heir at law. It must have been the intention of the testator, at the time, to devise what he had, not whai he had not. It does not appear that he even contemplated a purchase of lands. Under the first part of his will it is clear that he alludes only to personal estate.

In the case of Hamersly v.

3 Call. 289, it is said by the Court of appeals of Virginia, that the intention to devise after-acquired lands must appear by expressions applicable to that kind of property.

February 23d.... WASHINGTON, J. delivered the opinion of the Court as follows:

This was a bill filed on the equity side of the Circuit Court for the district of Virginia by the Appellants, in order to charge the real estate of Christopher Edrington in the hands of his son and heir at law, William P.' Edrington, with the payment of a debt due to the Ap

V.

pellants by Christopher Edrington, the father. The SMITH ap jeal being taken from that part of the decree of the & OTHERS Circuit Court which dismissed the bill so far as it seeks to subject the real estate in the hands of Win. P. Ed- EDRINGrington to the payment of the Appellant's demand, the only question now to be considered is, whether the will of Christopher Edrington can be so construed as to charge his real estate with the payment of his debts?

TON.

Thé clauses of the will relied upon by the Appellant's counsel for this purpose, are that which expresses the devise of the testator that all his just debts should be paid by his executors, &c. so soon as the means in their power should permit; also another, which authorizes his executors to dispose of, and convey, any of his property that might be necessary for payment of his debts; and a third, which is still stronger, and is expressed as follows: "Should my son, Wm. P. Edrington, to whom I bequeath the whole of my prperty, after the payment of my debts and provisions above made, die under the age of 21 years, I then give," &c. The testator then proceads to make certain pecuniary bequests in the event of his son's so dying, and concludes by disposing of the then residue of his property.

At the time that this will was made it is admitted that the testator was not possessed of or entitled to any estate in land, but that afterwards, and a short time previous to his death, he purchased the tract of land which this bill seeks to charge. By an act of the legislature of Virginia, passed in the year 1785, and long before the date of this will, it is declared that any person aged 21 years and upwards, being of sound mind, and not a married woman, shall have power, at his will and pleasure, by last will and testament in writing, to devise all the estate, right, title, and interest, in possession, reversion, or remainder, which he hath, or at the time of his death shall have, of, in, or to lands," &c. The circumstance, therefore, that the land in question was acquired after the execution of the will, presents no difficulty in this case, if it appears that it was the intention of the testator to devise it to his son; because if it passes at all under the will, it may readily be admitted that the devisee took it subject to the payment of the testator's debts; the parts of the will above recited being

TON.

SMITH strong to impose such a charge. But although a testa& OTHERS tor may, under the above law, dispose by will of after

purchased lands, it is nevertheless necessary that his EDRING- intention to make such a disposition should clearly ap

pear upon the face of the will. The rule in England, as well as in Virginia, at the time this law was passed was, that a will, as to land, speaks at the date of it, and, as to personal estate, at the time of the testator's death. The law created no new or different rule of construction, but merely gave a power to the testator to deviso lands which he might possess, or be entitled to, at the time of his death, if it should be his pleasure to do so. The presumption is, that the testator means to confine his bequests to land to which he is then entitled; and this presumption can only be over-ruled by words clearly showing a contrary intention.

In this will there are no expressions which indicate an intention to devise, or in any manner to charge, lands which the testator might afterwards acquire. It does not appear that the testator contemplated, at the time he made his will, the purchase of any land, and the words, " estate” and “ property,to be found in it, may be fully satisfied by applying them to the personal property of which he was possessed.

It is therefore the opinion of the Court that there is no error in the decree of the Circuit Court, and that the same ought to be affirmed with costs.

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ERROR to the Circuit Court for the district of It is a fatal

Columbia. objection to a deposition ta

On the trial in the Circuit Court below, the Defenken under the judiciary act of dant, Beale, offered in evidence, the deposition of Tu1789, sect. 30, nis Craven, taken before the judge of the district Court pened out of of the United States, for the district of New Hampshire, Court. under the soth sec. of the judiciary act of Sep. 24th, 1789,

vol. 1, p. 68, which, after prescribing the mode of taking

BEALE

0.

depositions, directs that the depositions so taken shall be 6 retained by such magistrate until he deliver the same 6 with his own hand into the Court for which they are THOMPSON s taken; or shall, together with a certificate of the rea- & MARIS. “sons aforesaid of their being taken, and of the notice, * if any, given to the adverse party, be, by him, the 6 said magistrate, sealed up and directed to such "Court, and remain under his seal until opened in Court."

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The deposition was sealed up by the judge, but directed to the clerk of the Court, and he, supposing it to be a letter respecting his official business, opened it out of Court.

The Court below rejected the deposition; which being stated in a bill of exceptions, the Defendant, Beale, brought his writ of error.

The question respecting the informality of opening the deposition out of Court, was not argued in this Court, there being another objection to it, which the counsel deemed more important, viz: that the deponent was the drawer of the note upon which the suit was brought against the Defendant, Beale, as indorser; the purport of the deposition being to show that Beale had not due notice of the non-payment of the note by the deponent.

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Feb. 2sd....STORY, J. delivered the opinion of the Court as follows:

The single point in this case is whether the Circuit Court of the district of Columbia, erred in rejecting the deposition of Tunis Craven.

Independant of all other grounds, the Court are of opinion that the fact of the depositions, not having been opened in Court, is a fatal objection.

The statute of 24th September, 1789, ch. 20, sec. 30, is express on this head.

The judgment of the Circuit Court must be affirmed.

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