Decided that under the statute of Virginia respecting wills, it
is necessary (in order that lands acquired after the date of the
will may pass by the will) that the intention of the testator
should clearly appear upon the face of the will.
The bill sought to charge the lands of Christopher Edrington in
the hands of his son and heir at law, W. P. Edrington, with a debt
due by his father, Christopher Edrington, to the complainants by
simple contract.
It was contended that the lands passed by the will of
Christopher Edrington to his son, W. P. Edrington, charged with the
payment of the debts of the testator,
Page 12 U. S. 67
although the lands were acquired by the testator after the date
of the will.
The will expressed a desire that all the just debts of the
testator should be paid by his executors as soon as the means in
their power should permit. It also authorized 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, 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 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 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.
Page 12 U. S. 68
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 appellants
Page 12 U. S. 69
by Christopher Edrington, the father. The appeal being taken
from that part of the decree of the circuit court which dismissed
the bill so far as it seeks to subject the real estate in the hands
of Wm. P. Edrington 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.
The 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 property, after the payment of my debts 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 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
Page 12 U. S. 70
strong to impose such a charge. But although a testator may,
under the above law, dispose by will of after-purchased lands, it
is nevertheless necessary that his intention to make such a
disposition should clearly appear 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 devise 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 overruled 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.
