ritory was finally evacuated by the Spanish | place on that day, or as evidence of the controops, &c.

This language is very peculiar, and shows plainly that, although Congress at the time of passing the law was certain of the fact of evacuation by the Spanish troops, that body was not informed of the precise time when the evacuation took place.

struction given by the board of commissioners west of Pearl River. It is sufficient if they were authorized to give such construction to the Act, in the event supposed, that the event happened; or in other words, that the actual evacuation took place on the 30th of March, 1798, as supposed in the argument; and that the construction of the 2d section of the Act of Congress, which we are disposed to adopt, is the true construction in the estimation of Con

The law was intended to confer a bounty on a numerous class of individuals; and in construing the ambiguous words of the section, it is the duty of the court to adopt that construc-gress itself, we think, may fairly be inferred tion which will best effect the liberal intentions of the Legislature.

To interpret this section literally, that land should be granted to those, who, on the same day of the year 1797 occupied a tract of land, provided the Spanish troops finally evacuated the territory, and on that very day of that very year 1797, would totally defeat the operation of the law, and the bounty intended by it; if it should have happened, that the final evacuation of the territory, by the Spanish troops, took place on the first day of January, 1798, or on any subsequent day.

If an individual had inhabited and cultivated a tract of land every day in the year 1797, still, according to the letter of this section, he was not entitled to the bounty of the government, because the Spanish troops had not evacuated the territory any day of that year, but some day of the next year; and although the party continued to occupy the land until the day of the actual evacuation, still, he could not be entitled, according to the letter of the Act, because that day was not any day of the year 1797.

from the Act of Congress of the 21st of April, 1806. The 4th section of that Act provides, that "wherever it shall appear to the satisfaction of the register and the receiver of the district east of Pearl River, that the settlement and occupancy, by virtue of which a pre-emption certificate had been granted by the commissioners, had been made and taken place prior to the 30th of March, 1798, they shall be authorized to grant to the party a donation certificate, in lieu of such pre-emption."

It appears from this section, that the commissioners east of Pearl River had adopted the construction of the Act of 1803, contended for by the plaintiff in error; and that, instead of granting donation certificates to the inhabitants and settlers, down to the period of the 30th of March, 1798, under the 2d section of the Act, they had granted pre-emption certificates, under the provisions of the third section. Congress treat this as a mistaken construction of the law, by directing donation certificates to be made out in lieu of the pre-emption certificates.

The Act of 1803 puts the settlers east and west of Pearl River on precisely the same footing, and it is inconceivable, that Congress could have any motive for giving those east of Pearl River any preference by the Act of 1806; or that the Act could have any other object than to continue upon the same footing the settlers east and west of Pearl River.

This could not be the intention of Congress. The country had been settled during the conflict on the subject of boundaries, between Spain and the United States, by the citizens and subjects of both governments. It was a weak and exposed frontier of the United States. The manifest general intent of the Act of Congress, is to confer a bounty upon the inhabit- The certificate granted in the case before us, ants and cultivators of the soil, who elected to is sufficient evidence that the commissioners remain in the country at the time of the actual west of Pearl River adopted a more liberal conevacuation by the Spanish troops. In this struction; such as we think they were warrantview of the subject, the time of the actual evac-ed *in adopting, and such as, we think, [*669 uation was very important, but whether it is manifestly sanctioned by Congress, in the was on some day in the year 1797 or 1798, was Act of 1806. comparatively unimportant.

If the fact be supposed, and it must be supposed for the sake of the argument, that the actual evacuation took place on the 30th of March, 1791, then something must be rejected in the construction and interpretation of the Act of Congress to make the provisions of the 668*] law effectual. Either the words "of the year 1797" must be rejected as inconsistent with the main scope and general intent of the law, or the claims to donations of all the inhabitants and cultivators, west of Pearl River, must be defeated. This would but defeat the manifest general intent of the law.

It was said at the bar, that all the donation certificates west of the Pearl River express to be for occupancy on the 30th day of March, 1798, and a certificate from the commissioners of the general land office, to that effect, was produced. It is not necessary to decide wheth er we can, or cannot, notice this certificate as evidence of the fact that the evacuation took

It is the opinion of this court, that the commissioners were authorized to hear evidence as to the time of the actual evacuation of the territory by Spanish troops, and to decide upon the fact. The law gave them "power to hear and decide all matters respecting such claims, and to determine thereon, according to justice and to equity;" and declares their determination shall be final.

We are bound to presume that every fact necessary to warrant the certificate, in the terms of it, was proved before the commissioners; and that, consequently, it was shown to them; and the final evacuation of the territory by the Spanish troops took place on the 30th of March, 1798.

Upon the whole, it is the unanimous opinion of this court, that the Supreme Court of the State of Mississippi has not misconstrued the Act of Congress, from which the rights of the parties are derived; and that the judgment of the Supreme Court be affirmed.

This cause came on, &c. On consideration whereof, it is the opinion of this court that the Supreme Court of the State of Mississippi has not misconstrued the Act of Congress on which the plaintiff below relies; and it is therefore adjudged and ordered by this court, that the judgment of said Supreme Court of the State of Mississippi be, and the same is, hereby affirmed, with costs.

670*] *ANN PRAY, Executrix, J. J. Maxwell, and George Waters, Executors of John Pray, deceased, Appellants,

V.

GEORGE G. BELT, Trustee, and James P.
Heath, pro ami.
Wills-construction-power conferred on exec-
utors to decide contentions-parties in suit.
for a legacy.

The testator in his will says: "Whereas my will is lengthy, and it is possible I may have committed some error or errors, I therefore authorize and empower, as fully as I could do myself if living, a majority of my acting executors-my wife to have a voice as executrix-to decide in all cases, in case of any dispute or contention : Whatever they determine is my intention, shall be final and conclusive, without any resort to a court of justice." Clauses of this description have always received such judicial construction as would comport with the reasonable intention of the testator. [679]

Even where the forfeiture of a legacy has been declared to be the penalty of not conforming to the injunction of a will, courts of justice have onsidered it, if the legacy be not given over, rather as an effort to effect a desired object, by intimidation, than as concluding the rights of the parties. If an unreasonable use be made of such a power so given in a will, one not foreseen, and which could not be intended by the testator, it has been considered as a case, in which the gneeral power of courts of justice to decide on the rights of parties, ought to be exercised. [680]

There cannot be such a construction given to such a clause in a testator's will as will prevent a party who conceives himself, injured by the construction, from submitting his case to a court of justice. A court must decide whether the construction of the will adopted by those who are named in the right construction, or the grossest injustice might be done. [680]

Where a legacy for which suit is instituted, is

given jointly to several persons in different families, and the legatees take equally, the number in neither family being ascertained by the will, all the claimants ought to be brought before the court. The right of each individual depends on the number who are entitled, and this number is a fact which must be inquired into before the amount to which any one is entitled can be fixed. If this fact were to be examined in every case, it would subject the executors to be harassed by a multiplicity of suits, and if it were to be fixed by the first decree, would not bind persons who were not parties. [681]

APPEAL from the Circuit Court of the Unit

lina.

ed States for the District of South Caro

The clauses of the will of John Pray, brought under the notice and consideration of the court, and exhibited by the record, were:

*"Item 51. Whereas I hold ten bonds, [*671 given by John J. Maxwell, payable by ten instalments, the first on the 10th of January next, and the others on the tenth of January in each year after. It is my will, and I direct, that the bonds payable tenth of January, eighteen hundred and twenty, eighteen hundred and twenty-one, and eighteen hundred and twenty-two, say the three first, shall be ap

NOTE.-Wills; interpretation; intention of testa- v. Pace, Bridg. O. 413: Stapleton v. Calwell, tor to govern.

Ca. temp. Talb. 208; Petty v. Goddard, Orl. Bridg. 40; 4 Ves. 329; 5 Ves. 243, 818; 6 Ves. 100; Ves. 522, 130; 8 Ves. 306; 11 Ves. 148; 15 Ves. 103; 1 Ball. & B. 460, 480; 4 Rand. 213; 8 Yerger, 4; 10 Yerg. 444; McCord, 411; 1 Mer. 503; 2 Mer. 204; Ibbetson v. Beckwith, Ca. temp. Talb. 157 to 163; Stephens v. Hide, Ca. temp. Talb. 29; Holmes v. Meynel, Jones, T. 172; Ridout v. Dowding, 1 Atk. 419; Falkland v. Bertie, Holt, 232; Cro. Jac. 62, 371, 416; Jesson v. Wright, 2 Blighs, P. R. 56; Heneage v. Andover, 10 Price, 316; Gore v. Gore, 10 Mod. 502, 523; 2 Mod. 223; Lartigne v. Duhamel, 4 Mart. N. S. 664; 11 John. 201; Westcott v. Cady, 5 John. Ch. 334; Capal v. McMilan, 8 Port. Ala. 197; 4 Hen. & Munf. 288; 1 Desauss, 189; 1 Bay. 87; 14 Wend. 265; Mann v. Mann, 14 John. 1; Jackson v. Luzuere, 5 Cow. 221; 4 Devereux, 381; Theall v. Theall, 7 La. 220; 331; Arcularius v. Geisenhauer, 3 Bradf. N. Y. 64; Sweet v. Geisenhainer, 3 Bradf. 114; Covenhoven v. Schuyler, 2 Paige, 122; Rathborne v. Dykman, 3 Paige, 9; Crosby v. Wendell, 6 Paige, 548; Hone v. VanShick, 3 Barb. Ch. 488; Wolf v. VanOstrand, 2 Comst. 436; Lynch v. Pendergast, 67 Barb. 501; Hoppock v. Tucker, 59 N. Y. 202; S. C. 1 Hun, 132; 3 Thomp. & C. 653; Ferrer v. Pine, 81 N. Y. 28.

A leading rule in the construction of wills, and one to which all others bend, is, that the court will carry into effect the declared intent of the testator, if it is clearly expressed, and is consistent with the general rules of law. Lambert v. Paine, 3 Cranch, 97; Taylor v. Mason, 9 Wheat. 325; Smith v. Bell, 6 Pet. 68; Lippett v. Hopkins, 1 Gall. 454; Nightingale v. Sheldon, 5 Mas. 336; Blagge v. Miles, 1 Story, C. C. 426; 4 Law R. 256; Kip v. Kip, 2 Paine, 366; Smith v. Bell, 6 Pet. 68; Stanley v. Colt, 5 Wall. 119; Gardner v. Wagner, Baldw. 454; Ward v. Amory, 1 Curt. C. C. 419; Pennoyer v. Sheldon, 4 Blatchf. 316; Lorrings v. Marsh, 6 Wall. 337; Clarke v. Johnston, 8 Blatchf. 597; Coltman v. Moore, 1 MacArthur, 197; Given v. Hilton, 5 Otto, 591; Holmes v. Williams, 1 Root, 332: Lutz v. Lutz, 2 Blackf.3 Wend. 511; Bradhurst v. Bradhurst, 1 Paige, 72; Finley v. King, 3 Pet. 346; Morton v. Perry, 1 Met. 446: Jarvis v. Buttrick, 1 Met. 480; Richardson v. Noyes, 2 Mass. 57; Davis v. Hayden, 9 Mass. 514: Homer v. Shelton, 2 Met. 194; Lamb v. Lamb, 11 Pick. 371; Crocker v. Crocker, 11 Pick. 252 Hayden v. Stoughton, 5 Pick. 528; Bowen v. Porter, 4 Pick. 198; Breckenbridge v. Duncan, 2 A. K. Marsh, 50; Cheasman v. Wilt, 1 Yeates, 411; Plow. 162, 413, 522, 523, 540: 2 Leon, 42, 43; Bosworth v. Forard, Orl. Bridg. 158; Davis v. Kemp, Carter, 5; Willes, 297; 2 Cow. 333.

The intention must be gathered from the words of the testator, and the words construed according to the letter and legal effect of them. The intent is to be collected (if possible) from the will it self, and not from extrinsic circumstances; and from the whole will, giving effect to every word and part. Campbell v. Beaumont, 12 N. Y. Week. Dig. 232; Cole v. Robinson, Salk. 235; Collinton

Parol or extrinsic evidence of intention, to vary words of will, inadmissible. Avery v. Chappel, 6 Conn. 270; 6 Watt's. 345; Bunner v. Storm, 1 Sand. Ch. 357; Mann v. Mann, 14 John. 1; Champlin v. Champlin, 1 Sheld. 355; S. C. 58 N. Y. 620; Calak v. Jacobs, 56 How. Pr. N. Y. 519; Wil liams v. Freeman, 12 N. Y. Week. Dig. 21; Es tate of Cassidy, 20 Daily Reg. N. Y. No. 152; Peters v. Porter, 60 How. Pr. N. Y. 422.

"It is my will, and I direct, that all my estate, both real and personal, shall be kept and continued together, until all my just debts and legacies are paid, debts, if any, first, and as soon after as possible, to be disposed of as hereinafter directed."

plied in aid of the payment of my just debts, and to Richard K. Heath, in trust for the beneif any due, and in the payment of the legacies fit of Jane Heath, wife of James P. Heath, and by me left. It is my request that my execu- | such children as she may have when that surtors do also apply all funds which I may pos- plus may be collected, in case of their being sess at my decease, as also dividends on all my any." bank stock (except that part of dividends which I have directed to go immediately to some of my legatees), and also to apply all moneys due to me, as soon as collected, and also all rents and crops of rice and cotton; first to pay any debts, and then legacies, any heretofore left, or which I may hereafter leave "In case of accidents by fire, at any time beto be paid. It is my will, and I do direct, that fore or after my executors pay my debts and my executors do pay up the one-half of all the legacies, it is my will that my wife receive the cash legacies by me left to my relations, out of amount of insurance to aid in rebuilding; and the first funds they can command from my es- in case of accidents by fire on lots in Nos. 6 tate, except those I may have directed to be and 7, before my debts and legacies are paid, it paid immediately; and after they have paid is my will, in such case, that my executors hold the one-half to my relations, thereafter it is all my estate together, until they can add ten my will that they do pay up in equal propor- thousand dollars to what may be received on tions, agreeably to sums left, to all my other insurance; and they are requested to put on legatees; and be it understood, and it is my fire-proof buildings on said lots, to both these will and intention, that after they have paid the amounts, and if these sums are insufficient, one-half, to my relations, that they will con- they are authorized to raise any balance for tinue to pay them the other half in equal pro-erecting proper buildings, on the credit of my portions with my other legatees; my object wife; this balance, if any required, be it unand intention is, to place them on the same derstood, is to come out of my wife's portion footing with my other legatees, after the pay-of my estate left her. ment of one-half to my said relations. It is my will and request, that my executors do pay all my debts and legacies as soon as possible after my death; but be it explicitly and plainly understood, that no interest whatever is to be allowed on any legacy by me left to any one of my legatees, as in all probability the resources and funds of my estate will be equal to the payment of my debts and legacies before the three bonds mentioned of John J. Maxwell may fall due and be collected. In case all debts and legacies can be paid before the three aforesaid bonds can be collected, then, and in that case, whatever balance may remain to be collected on the three aforesaid bonds, principal and interest, it is my will, that the same shall be equally divided as collected, between the following persons, share and share alike: To my executors in trust, for the use and benefit of my aunt Turpin, my uncle's present wife; it is my intention to keep it from being subject to my uncle's debts, that I leave it in trust; in case of no risk, my executors will pay it over to my aunt. My god-daughter, Mary Jane Pray Hines, wife of Lewis Hines. The children of Thomas Mann, by his present wife, as also Ann and Jane, now in New Provi672*] dence. Any part which the children The defendants, John J. Maxwell and George of Harriet Mann, Thomas Mann's wife, may be M. Waters, in their separate answers allege, entitled to, is to be ascertained by the num-"That in the month of December, in the year ber she may have at the time these bonds are collected, and my executors are ready to pay over. In case all is not applied on my debts and legacies, and if Harriet hath any child after the payment, then such child to receive such proportion as the other children out of the part paid to such as she before had or has at the time the same is paid. My executors will be governed in the distribution, by the number of children Harriet has on the day they are ready to make a distribution. In case of any surplus left on said bonds, the said children's parts to be paid to their legal representatives, so it is not their father (I omitted the word Mann after the words Ann and Jane above),

*

"In case of such an accident, if necessary, in order not to delay rebuilding, my executors will resort to a loan from the bank or banks. Whereas there is no doubt but there must be a considerable surplus fund of my estate by debts due, or crops on hand, or near made, after my executors have paid all my debts and legacies, which my wife will come in for; if my executors discover that by such surplus that the same will not be equal to ten thousand dollars, in that case it is my will, that they continue all my estate together, until they can make up ten thousand dollars; and it is my request, that they will, as soon as possible after raising the aforesaid sum, proceed to put up fire-proof buildings on the aforesaid lots.

"Whereas my will is lengthy, and it is possible I may have committed some error or errors, I do therefore authorize and empower, [*673 as fully as I could do myself, if living, a majority of my acting executors-my wife to have a voice as executrix-to decide in all cases, in case of any dispute or contention: whatever they may determine is my intention shall be final and conclusive, without any resort to a court of justice."

eighteen hundred and nineteen, the defendants qualified as executors of the will of John Pray, and having ascertained that there was a sufficient sum of money to be raised from the crops which had been made that year, as also from debts due the estate of said John Pray, the testator, on bonds, notes, and other securities, which could soon thereafter be realized, to satisfy all the unpaid legacies of the said testator, commenced a delivery of some portions thereof to those claiming and entitled under the will That, in the meantime, after they had com menced a division of the estate of said testator, and before its completion, to wit, on the tenth day of January, in the year eighteen hundred

"That if the estate of the said testator had "This cause came on to be heard on the masbeen kept together, after the conflagration ter's report, pursuant to a reference at the aforesaid, a sufficient time, funds may have last term on the following points: 1st. A statebeen realized sufficient to pay all debts and ment of the debts due by the testator. 2d. A legacies, and to meet the aid authorized and statement of the pecuniary and other legacies, directed for the said Ann Pray; but this de- and how and when paid. 3d. Of the funds fendant declares that it would have required applicable to the debts and legacies. 4th. Of the estate to have been kept together four or the receipts and expenditures of the executrix five years for this purpose, without resorting and executors. 5th. Of the value of the resi to the said bonds: in the meantime the said due bequeathed to Mrs. Pray. 6th. Of the bonds would have become due, and been real- value or amount of the income which the esized; the one being due on the day of Janu- tate would have produced had it been kept toary, eighteen hundred and twenty-one, and the gether specifically. Of the several amounts other on the day of January, eighteen hun- claimed by these complainants, in behalf of dred and twenty-two. That in and by the fif- those whom they represent as legatees, and his ty-first item of the said will, the said bonds own views of the correctness of those claims, are expressly directed to be appropriated in with reference to the principles on which they aid of the payment of the debts and legacies, are calculated. And he, the said master, havand only to be distributed among the legatees ing duly made and submitted his report upon therein named, in the event of the debts and all the matters so referred to him, and it aplegacies being paid out of the funds, made sub-pearing from said report that the proportion of ject by the will to that purpose, before the said the funds of the said testator to which under bonds should become due or could be collected. his will the complainants are entitled, amounts That if the said estate of the said testator had to the sum of twelve thousand one hundred

and eleven dollars, as by reference to said report of file in the registry of this court will more fully appear."

the plaintiffs, and decreed to them the proportion of the three bonds which was estimated to be their part.

From this decree the executors had appealed to this court.

In argument several formal objections have been taken to the decree, which will be considered. The question on the *merits [*677 depends on the construction of the will. The

"It is ordered, adjudged and decreed, that George M. Waters and Jno. J. Maxwell, executors, and Ann Pray, executrix, do pay to the said complainants the sum of twelve thouand one hundred and eleven dollars. And it is further ordered, decreed and adjudged, that the said sum, when collected by force and vir-will is very inartificially drawn. It is in some tue of this decree, be paid into the hands of the clerk of this court, and on the receipt of the said sum he is hereby ordered and directed, so soon as the same can be perfected, to invest the said sum in the purchase of United States stock or bank stock of the United States Bank as may appear most advantageous to the complainants; and it is further ordered, adjudged and decreed, that the defendants do 676*] pay the costs of this suit and interest on the principal sum decreed, to be computed from the service of this decree.

"William Johnson."

parts rendered more confused than it would otherwise be by a recurrence in different places to the same subject. In item 51 he says, in the first instance, that the three bonds which are the subject of controversy, "shall be applied in aid of the payment of his just debts, if any due, and in the payment of the legacies by him left." He adds: "It is my request that my executors do also apply all funds which I may possess at my decease, as also dividends on all my bank stock (except that part of dividends which I have directed to go immediately to some of my legatees), and also to apply all also all rents and crops of rice and cotton, first moneys due to me as soon as collected, and to pay any debts, and then legacies," etc.

The language of this part of the will in rela

By agreement of counsel a part of the master's report was afterwards corrected, and the number of persons among whom the amount of John J. Maxwell's bonds were to be distrib-tion to these bonds shows an intention to aputed, being accurately stated, the sum to which the complainants below were entitled according to the principles of the decree of the Circuit Court was found to be $9,909 instead of $12,111 as stated in the report.

The case was argued by Mr. Berrien for the appellants, and by Mr. Key for the appellees. The following points were made by the appellants:

1. There is no sufficient evidence on which to found a decree for any specific sum. 2. The necessary parties were not before the

Circuit Court.

3. The proceeds of the three bonds of John J. Maxwell were well applied to the payment of debts and legacies, and among others to the payment of the contingent legacy to Ann Pray.

4. The decision of the executors, is the will of the testator, by the express provision of the will; and cannot be questioned by the lega

tees.

but indicates, we think, the expectation that it ply them to debts and legacies, if necessary; would not be necessary. They are to be applied in aid of the payment of his just debts, and in the payment of legacies. They are then described in terms, which show it to be a large one. There is some reason to suppose, from this part of the will, that these three bonds were not comprehended in it, because the testator introduces the enunciation of its items by saying "it is my request that my executors do also apply all funds, etc." Again, he assigns legatees, "that in all probability the resources as a reason for withholding interest from his and funds of his estate will be equal to the payment of his debts and legacies before the three bonds mentioned of John J. Maxwell may fall due and be collected."

to aid another fund. That fund is afterwards

testator that these bonds would not be required This shows unequivocally the belief of the for the debts and legacies. He then adds, "In case all debts and legacies can be paid before

Mr. Chief Justice Marshall delivered the the three aforesaid bonds be collected, then, opinion of the court:

This suit was brought in the Circuit Court for the District of Georgia, by George G. Belt, the trustee for Jane Heath and her children, who are infants, and by James P. Heath, husband of the said Jane, and father of her children, against the executors of John Pray, deceased, and Ann Pray, his widow, to recover a legacy bequeathed to them and others by the said John Pray.

The executors resist the demand on the principle that the bonds for which the suit is instituted were required to pay the debts and legacies due from the testator and to raise the $10,000 to replace the buildings on lots 6 and 7, which were consumed by fire. They also contend that their testator has submitted the construction of his will, absolutely, to their judgment, and that their decision against the claim of the legatees is final.

The Circuit Court established the claim of

and in that case, whatever balance may remain to be collected, shall be equally divided between the following persons."

This request does not depend on the fact that the debts and legacies should be actually paid before these three bonds were collected, but on the sufficiency of the fund for the object. Should the fund be sufficient its application must be made; and whether made in fact or not, the right to the bonds vests in the legatees.

The testator then proceeds to say, "it is my will, and I direct that all my estate, both real and personal, shall be kept and continued together until all my just debts and legacies are paid."

This whole item, 51, shows the opinion that the profits of his estate, including [*678 dividends on his stock, added to the debts actually due at the time, were sufficient for the payment of debts and legacies. Yet his estate