Broward vs. the State.-Opinion of Court.

The terms used in the second section seem to us utterly inconsistent with the idea that a civil suit was intended. The solicitor is to prosecute the person or persons presented, and upon conviction, the person or persons convicted, shall pay a fine, &c. It is entirely unusual, in speaking of civil suits, to say a person is prosecuted, and convicted and fined. These are terms descriptive only of criminal proceedings. We are confirmed in this view by the third section of the act under consideration, which reads as follows:

"SEC. 3. It shall be the duty of the solicitors of the several Circuits to bring such actions, for the use and occupation of the above mentioned lands, as he may be directed to bring by the Register of Public Lands, and to prosecute said suits to a final recovery."

In this 3rd section, a civil action is clearly intended, and hence the solicitor is instructed to prosecute, not the person or persons, but the suits to a final recovery, not to a final conviction. Persons are prosecuted, convicted and fined only in criminal proceedings. Suits are brought and prosecuted to final recovery only in civil proceedings.

The fifth and sixth grounds assigned in arrest of judgment were not relied on by counsel in argument before this court, and we consider that the Circuit Court did not err in overruling them.

Let the judgment be affirmed, with costs.

McLeod vs. Dell.-Statement of Case.

F. MCLEOD, ADMINISTRATOR OF A. DELL, APPELLANTS, VS. PHILIP DELL, EXECUTOR OF B. M. DELL, APPELLEE.

1. The opinion of the Chancellor delivered in the court below, forms no part of the record of the case, and cannot be read or referred to in the Supreme Court.

2. The rule which accords to the interpretation of words occurring in a will,greater indulgence than when used in a deed, must be taken with this qualification, that such indulgence is to be allowed only in aid of the intention of the testator and where that intention is in equipoise between two contrary constructions, the words used, if they have received a well settled technical meaning,must be interpreted in that technical sense otherwise they are to be taken according to their common conception.

3. The words "child" or "children," occurring in a will, usually denote imme.diate offspring, and in that sense are to be taken as words of purchase; but employed as nomen collectivum, or synonymous with issue or descendants, they are to be taken as words of limitation, and are sufficient to create an estate tail. Where this latter construction has prevailed, however, it has generally been aided by the context,

4. The word "child" or "children" may be used as a term of substitution,that is, putting the immediate offspring in the place of the parent; or it may be used as a term of succession. If employed in the former sense, it will not be taken to import "an indefinite failure of issue."

5. A recognition of the rule respecting "perpetuities," to-wit: "a life or lives in being, and twenty-one years after," is not in conflict with the 24th clause of our "declaration of rights."

6. To authorize the Chancellor to retain a bill,in order that he may give general relief, where the special relief sought has been denied, it is necessary that he shall have acquired cognizance or gained jurisdiction of the cause.

This case was decided at Jacksonville.

The following statement of the case was prepared by the Justice who delivered the opinion:

The bill in this cause is filed by the administrators of Amos L. Dell, deceased, against the executor of the last will and testament of Bennett M. Dell, deceased. Amos L. Dell was a son of the said testator, and one of the beneficiaries named in his will.

The bill sets forth that Bennett M. Dell, did on the 21st

McLeod vs. Dell.-Statement of Case.

day of February, A. D. 1855, make and publish his last will and testament in writing, which is herein inserted at full length, and is in the following words, viz:

IN THE NAME OF GOD, AMEN. I, BENNETT MAXCEY DELL, of the county of Alachua, and State of Florida, being weak in body but of sound and disposing mind and memory, and calling to mind the frailty and uncertainty of human life, and being desirous of settling my worldly affairs, and directing how the estates with which it has pleased God to bless me-shall be disposed of after my decease, while I have strength and capacity so to do, do make and publish this my Last Will and Testament; hereby revoking and making null and void all other Last Wills and Testaments by me heretofore made. And first, I commend my immortal being to him who gave it, and my body to the earth, to be buried in the Family Burying Ground, in a decent and suitable manner, agreeable to my rank and estate in life. And as to my worldly estate and all the property, real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my death, I devise, bequeath and dispose thereof in the manner following, to-wit:

1. Imprimis. My will is, that all my just debts and funeral charges shall, by my executors, hereinafter nominated, be paid out of my estate, as soon after my decease as shall be by them found convenient.

2. Item. To my present much beloved wife, Eliza Dorothy, I give, devise and bequeath the following Negro Slaves, that is to say, Jack, Juliana, and her four children, Lewis Henry, Francis, Billy and Grace; Somerset Betsy and her two children, Jim and Sappho; Adam and Peggy, and her child Mitchell, with their increase, to have, to hold and enjoy during her natural life, should she not marry after my decease; but if she does marry after my decease, it is my will

McLeod vs. Dell.-Statement of Case.

that the above-mentioned negro slaves shall, immediately upon such marriage, revert to and be equally divided among my children or their children, subject to certain restrictions and conditions hereinafter set forth and mentioned. And it is further my will that my wife, the said Eliza Dorothy, from the time of the marriage referred to above, shall receive annually the sum of five hundred dollars, to be paid to her by my executors, hereinafter nominated, out of such portion of my estate as shall seem most proper to them, during her natural life; but if my wife, the said Eliza Dorothy, does not marry after my decease, then it is my will that she shall possess, hold and enjoy the aforementioned and above described negro slaves, with their increase, during her natural life, and upon her death, the said negro slaves, with their increase, shall be equally divided among my present children, surviving her death, or their children, share and share alike, subject to the restrictions above referred to, and hereinafter mentioned and set forth.

3. Item. It is also my will that my said wife, Eliza Dorothy, shall be permitted to choose for her residence my plantation now occupied by me near Newnansville, and known as "Standby," or any other place which I may at the time of my death be possessed of or entitled to, and shall be allowed five horses and a carriage, and all necessary farming utensils and implements for the place which she may select; she shall also be allowed one hundred head of cattle, also all the hogs belonging to my place near Newnansville, known as “Standby,” ⚫and also all the household and kitchen furniture which may be upon my place known as "Standby," at the time of my death; the said place which she may so select, and the said carriage and horses, and the said farming utensils, and the said cattle, and the said hogs, and the said household and kitchen furniture, to be held and enjoyed by her during her natural

P

McLeod vs. Dell.-Statement of Case.

life, subject on her marriage or her death to be disposed of as in the above first item specified, and subject to the same restrictions and provisions as above referred to and hereinafter set forth and mentioned.

4. Item. I hereby give, devise and bequeath to my much beloved daughter, Sarah Angelina, the following-named negro slaves, that is to say-Charlotte and her two children, Charles and Washington; Jacob and Polly, with their increase, to have, to hold and enjoy during her natural life, and at her death, to be equally divided among my present children or their children surviving her death, subject to the same conditions and restrictions as referred to above, and hereinafter set forth and specified. And I hereby nominate, constitute and appoint my executors, hereinafter nominated, trustees for my beloved daughter, Sarah Angelina, and earnestly recommend her to their special care and protection.

5. Item. I also give, devise and bequeath unto the children of my son Charles L., who lately died in Texas, so much of my estate as their father would have received under this will, had he survived me, to be paid in money, when they, the said children of my son, the said Charles L., shall respectively arrive at the age of twenty-one years. And I hereby nominate, constitute and appoint my executors, hereinafter nominated, trustees for the said minor children of my son, Charles L., deceased, with full power to convert such portion of my estate as they may be entitled to, into money, and invest the same as may be most advantageous to the said children aforesaid; but if they, the said children of my son, the said Charles L., deceased, die before arriving at the age of twenty-one years, then the property to which they may be severally entitled under this will shall revert to and be equally divided among my present children or their children surviving the death of the children of my son,