Cunningham v. Ashley e.

ment, cannot enlarge the right of the complainant. Brumbach applied for a preemption in the quarter section, under the act of 1830, and established his right in every thing, except the tender of the money. His claim was rejected, no doubt, on the same ground, as was that of the complainant's.

Brumbach had conveyed his right to Ashley, in whom the legal title is vested to one half of the quarter section. This removed the objection to the location of one of the floating rights for eighty acres on the quarter, as the improvement, if not made by Ashley, was owned by him. In regard to the one half of the quarter, the entry was not prohibited by the second section of the act of 1830, or the circular of 1837. To extend the preemptive right of the complainant over the entire quarter, would cover improvements of another individual, made about the same time as those on which his preemption is founded. This would disregard the express provision of the law, which gives to each settler, where there are two upon the same quarter section, eighty acres.

As the right set up by the complainant arises under an act of Congress, and the decision of the Supreme Court of Arkansas was against that right, this court has jurisdiction of the case.

We have not considered any right equitable or legal, as arising under the New Madrid locations, laid upon the land in dispute. Such right, if any existed, is not presented in the pleading, in such a form as to require its consideration an decision. It therefore remains wholly unaffected by the decree.

The facts in the case are exceedingly voluminous and complicated; but we have considered them, and the legal and equitable bearing they have upon the title of the parties. Upon this view, we are brought to the conclusion that the entries on which the defendants' patents were issued, were void, so far as they interfere with the claim of the complainant, for the reasons stated, and that, consequently, the patents are also void. The decree of the Supreme Court of Arkansas is therefore reversed; and the cause is remanded to that court, with instructions to enter a decree in pursuance of this opinion. And in order to give more definitely our views, we state, that, on a full consideration of the pleadings and proof in the case, we consider that the two entries of eighty acres each, made in the name of Samuel Plummer and Mary Louisa Jenbeau, on the south-east quarter of section number three, in township one north, and in range twelve, west of the fifth principal meridian, south of the Arkansas River, are void so far as they interfere with the preemptive right of Matthew Cunningham to one half of the said quarter; and that Roswell Beebe, and the heirs of Chester Ashley, deceased, defendants, shall execute a deed of quitclaim

Bosley et al. v. Bosley's Executrix.

to the said Cunningham, on his paying or tendering to them the minimum price of the public land, with interest from the sixth of June, 1838, the time the above entries were made, to one half of the above quarter section, by east and west, or north and south lines, so as to include his improvement on the quarter section, or, if such a division cannot be made, that they convey to him, as aforesaid, a joint interest of one half in the quarter

section.

And the court order that the decree shall in no respect affect any right which may or does exist, under the New Madrid locations, in the defendants or other persons, if any there be.

Order.

This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Arkansas, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed, by this court, that the decree of the said Supreme Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Supreme Court, for further proceedings to be had therein in conformity to the opinion of this court.

MARY LUCINDA BOSLEY, HENRY BOSLEY, MARY JANE DAVIS, SALLY ANN DAVIS, JAMES BOSLEY AND MELDRID BOSLEY, (INFANTS,) BY THEIR GUARDIAN AND NEXT FRIEND JOHN BOSLEY, AND JOHN BOSLEY SON OF THE SAID JOHN, v. MARGARET E. WYATT, EXECUTRIX OF ELIZABETH N. BOSLEY, DE

CEASED.

James Bosley, in his will, after sundry specific devises and bequests, devised and bequeathed all his lands and other real estate in Baltimore, Cecil, and Alleghany Counties, in Maryland, and also in Florida, and his house and lot in Santa Croix, and all the real estate he might have elsewhere, to his wife Elizabeth, her heirs and assigns, in trust to sell the same and divide the net proceeds thereof, with all the residue of his estate, equally between herself and the children of his brother. After making his will, he sold all of the lands, particularly mentioned in the residuary clause of the will above stated, except some lands lying in Baltimore county. At the time of making the codicil hereafter-mentioned, he held some of the proceeds of these sales in bonds and other securities, and with the residue had purchased other property.

He afterwards made a codicil, by which he devised his summer residence, in Baltimore. county, to his wife, and also the securities he held for the lands sold in Cecil county, and directed all the property he had acquired after the date of his will to be sold, and the proceeds to be equally divided between his wife and her sister Margaret. Then followed a residuary clause in the following words:

Bosley et al. v. Bosley's Executrix.

"Lastly, my pew in St. Paul's Church and all my other property, real or personal, and all money in bank belonging to me at the time of my decease, I give, devise and bequeathe unto my said wife Elizabeth and her heirs forever; and I ratify and confirm my said last will in every thing except where the same is hereby revoked and altered as aforesaid."

The residuary clause in this codicil is inconsistent with that in the will, and consequently revokes it. But the devise of the property, specifically mentioned in the will, is not revoked by the clause in the codicil.

After the execution of the codicil, the testator agreed to lease some land for the term of ninety-nine years, renewable forever, a ground rent being reserved upon the same. The lessee was to pay cash for a part, and the residue of the purchase-money was to remain on interest, as ground rent, which the lessce could extinguish at any time by the payment of the principal sum.

This property was a part of that which was specifically mentioned in the will, and not revoked by the clause in the codicil.

But the conduct of the testator, in making this agreement. so altered the condition of the property that it amounted to a revocation of the devise, and manifests an intention on his part, when taken in connection with other circumstances of the case, to give it to his wife under the residuary clause in the codicil.

THIS was an appeal from the Circuit Court of the United States for the District of Maryland.

The bill was filed by the plaintiffs in error, who were the children of Dr. John Bosley, mentioned in the will of James Bosley.

That part of the will which gave occasion to the controversy is stated in the opinion, as are also the material facts in the

case.

The Circuit Court decided that the residuary devise in the will was revoked by the residuary clause in the codicil; that the devise of the property, specifically mentioned in the will, was not revoked by the clause in the codicil, and ordered an account to be taken of such part as remained subject to the trust, one half of the proceeds whereof to be paid over to the complainants; and that the testator's agreement, made after the date of the will and the codicil, to lease a part of that real estate for a term of ninety-nine years, the principal sum payable at the option of the lessee, operated to revoke the devise as to that part.

From this decree, the complainants appealed to this court.

It was argued by M. Mayer, for the appellants, and Mr. Campbell and Mr. Johnson, for the appellees.

Mr. Mayer, for the appellants, made the following points.

1. The final clause of the codicil institutes no new.siduary devisee and legatee; and the words supposed to effect that, are not the appropriate, nor any constructive phrase, for a residuary disposition in a will; and those words (which are, "all other my property, real or personal,") must be construed either-1st, to comprise all property "other" than the pew, and so to purport to annul all devises and bequests of will and codicil,

Bosley et al. v. Bosley's Executrix.

except those in favor of Mrs. Bosley; which result must condemn the paragraph as incongruous and absurd; or, 2dly, to point to only property ejusden generis with the pew, and with the real property just in a preceding clause given to Mrs. Bosley and Miss Noel, and being the acquisitions subsequent to the date of the will; or, 3dly, must be rejected altogether as incapable of any consistent or reasonable application; or, as militating against the general intent of the testator, of dedicating his estate (with but small exceptions) to the children of John Bosley, and to Mrs. Bosley. 3 P. Wms. 112; 3 Atk. 61; 3 My. & Cr. 661; 1 Eq. Ca. Abr. 301, pl. 14; 1 Bro. C. C. 127, 39; 1 Russ. 146; 2 Atk. 113; 1 Jarman, 395, '9, 417; Greenl. Cruise [Devises] 133 and note to ch. 8, §39; 6 Watts, 192; 3 Peters, 117, 118; 11 Gill & J. 206; 2 Paige, 22; 8 Mass. 3; 11 Ed. 528; 22 Maine, 257, 413; 4 B. & Čres. 620; 2 Wms. Ex's, 799, 790; 6 Peters, 83, 84; 5 Ves. 247; 10 Wheat. 239; 13 Peters, 173; 5 Ves. Jr. 247; 21 E. C. L. 352; 1 Jarman, 594, 595, 596.

2. The paragraph adverted to, is no residuary disposition; because, a specific bequest follows it to Mrs. Bosley, which would be utterly needless and idle, if it were preceded by the supposed all-comprehending residuary appropriation. 13 Ves. Jr. 39; 1 Russ. 149; 3 Atk. 61; 1 Jarman, 595, 598, 599, 600.

3. There is, by those words, no revocation of the residuary devise and bequest of the will, because, the codicil, in erms following those words, confirms the will, except where the same is (by the codicil) "revoked and altered." The testator introduces several express revocations into his codicil; and to only those revocations must ne be understood to refer - and to modifications, by name of "alterations," of his will-for any interferences with the will, as meant to be revoked, or affecte" by the codicil. If the words in question touch at all the residuary disposition of the will, they must affect it only as a revocation; and, leaving out of view mere modifications, or "alterations," the inquiry is, what revocation the testator meant should trench upon the broad confirmation his codicil gives to the will, thus declared as of continuing force? The will speaks anew from the date of the codicil, even without any confirmatory reference to it in the codicil, and the two acts are thus intimately allied; and any revocation of any part of the will, imputed to the codicil, must be by words as precise and unequivocal, and positive, as are the terms of the dispositions supposed to be revoked.

The testator has given his own limitation to the effect of his "alterings" of his will, or of any estate disposed of by it, by declaring, in the codicil, that where Mrs. Bosley, (under the

Bosley et al. v. Bosley's Executrix.

clause next to the last,) shall "alter" any estate, it shall nevertheless take the course prescribed in the will, and that "alteration" is not, in his view, and by the law of his will, the same as revocation; and he thus precludes the idea that he had in view any revocations but those he had expressly declared in the codicil. 3 Mason, 486; 10 B. & Cres. 895, (21 E. C. L. 192); 3 Pick. 216; 5 Johns. C. R. 534; 1 Wms. Ex'rs, 114, 116; 21 Eng. C. L. R. 352; 4 Kent, 531; 8 Cowen, 58; 1 Jarman, 189, 395; 2 How. Rep. 580.

4. The will and codicil being thus blended and coöperative, the codicil avails as a republication of the will, except where such an inference at law is, by the express terms or necessary construction of the codicil, excluded. The will, in this relation to the codicil, is to be treated as if inserted in the codicil. If so, if even there be those contradictory residuary dispositions, the residuary estate must, as modern adjudications now deal with such contrariant clauses, be shared by the parties named or embraced in both clauses. This construction would virtually restore the residuary clause of the will, as the only rule; because, as under the construction just asserted, Mrs. Bosley and the children, the subjects of the two clauses, share equally, by the will, in the residuary estate. 14 Pick. Rep. 521; 6 Johns. C. R. 375; 3 My. & Cr. 376; 1 Jarman, 202, 397, 412; 2 Atk. 374; 2 My. & Keen, 165; Yelv. 209; Cro. Eliz. 9; Greenl. Cruise, (Dev.) 149, (marg.); 10 B. & Cres. 895, (21 E. C.-L. 192.)

5. The agreement of the testator to lease a part of his land in Baltimore county, had not the effect to revoke the devise of that part of the land in favor of the complainants, and only modified the devise so as to give the rent and reversion on the lease, in place of the land. This construction applies also to the lot and house by the will devised to "Old Sarah," and, subsequently to the codicil, agreed to be leased to William Hollins, as stated in the defendant's schedule. The privilege, accorded by the agreement of lease, to extinguish the rent and so acquire the reversion, does not render the transaction a sale, and give to the contracting lessee the equitable fee of the land. If the agreements for leasing revoked the devises of these pieces of property, then the testator died intestate as to them; the agreements dating after the codicil. Greenl. Cruise, 105. 109, (note to 106); 2 Ves. Jr. 428; 1 Jarman, 167, 171, 172; 4 Kent, 530; 7 T. R. 399; S. C. 1 B. & Pull. 576; Cro, Car. 23; Cro. Jac. 49; 1 Vern. 97; 3 Bro. Parl. Ca. 12; 2 Chipman, 74; 4 Greenl. 341; 3 Ves. Jr. 685; 1 Maryland Ch. Decis. 36; Cro Eliz. 9.