APRIL, 1810. Dilliard V. Wyatt V. Muse and Wife. the act of assembly, sent to the Superior Court of Chancery for the District of Williamsburgh; which Court thereupon decreed" that the defendant George Dilliard deliver to the Tomlinson. plaintiffs all the slaves of Benjamin Edloe Tomlinson, the infant intestate, which came to him from Benjamin Tomlinson his father, and account for their profits; that he also account with the plaintiffs for the other personal estate which came to the said intestate in the same manner, and pay what shall be due thereon; which several accounts were directed to be taken by a commissioner, who reported a balance due from the defendant on the 1st of January, 1802, of 210l. 5s. 6d. consisting of 195l. 4s. 5d. principal, (being all (except 41. 2s. 2d.) for the hire of slaves,) and 15/. 1s. 1d. interest; as per statement annexed, in which the interest was charged, on the sums which annually became due, from the 1st day of July in each year. The defendant excepted to the report for the following reasons: 1. "That the hires of the several slaves are extended at too high a price, the said slaves being by no means worth so much; 2. "That interest is charged on the amount of the hire of the slaves; which ought not to be; for the hire of slaves, and the rent of lands, is always given in lieu of interest; 3. "That the defendant is not allowed a sufficient sum for maintenance of the slaves; the maintenance of which forms an item of credit in the said report. The Chancellor, on the 26th of July, 1803, disallowed the exceptions, and, confirming the report, decreed that the defendant pay unto the plaintiffs the sum of 210l. 5s. 6d. with interest on 1957. 4s. 5d. part thereof, at the rate of 6 per centum per annum; from the first day of January, 1802, "till paid," and their costs in the Courts of Appeals fand Chancery: to which decree, on the petition of the defendant, a writ of supersedeas was awarded by this Court. APRIL, 1810. Dilliard V. Wyatt V. Muse and In the case of Wyatt, Administrator of Curtis, the bill (originally filed in the late High Court of Chancery, on behalf of Charles Curtis, of the County of Middlesex, and his infant daughter Elizabeth, against Peter Kemp, executor, Tomlinson. and Harriet Murray, only surviving child of William Murray,) stated, that, about the beginning of the year 1787, the said William Murray died, leaving a widow, Mrs. Anne Murray, and three daughters, Mary Anne, Harriet, and Fanny; that he left a will, whereby he disposed of his lands, slaves and personal estate among his said three daughters; that the widow, in due form of law, renounced all benefit from the said will, and, some time after, married the plaintiff Charles Curtis, by whom she had three children, Christopher and Joanna Curtis, and the plaintiff Elizabeth; that, in March 1793, Mary Anne Murray, one of the daughters, died under age, unmarried, and intestate, leaving next of kin her mother and two sisters aforesaid, and her half brother and half sister Christopher and Joanna; that the said Joanna Curtis died in July following; that the plaintiff Elizabeth was born some time before the month of April, 1795, at which time the said Fanny Murray died, an infant, unmarried and intestate; that, in the same month, and after the death of the said Fanny, Christopher Curtis died; and that Anne, the wife of the plaintiff Charles, died in August following. The plaintiffs contended that, on the death of Mary Anne Murray, Charles Curtis, in right of his wife became entitled to 1-4th of the slaves and other personal property of the said Mary Anne; that another one fourth vested in Fanny Murray; that Harriet Murray became also entitled to one fourth; and the remaining one fourth vested in Christopher and Joanna Curtis, in equal shares; that, on the death of Joanna, her share vested in her father; that, on the death of Fanny Murray, one third of her slaves and personal estate vested in Charles Curtis, in right of his wife; one third in Harriet Murray; and the remaining one APRIL, 1810. Dilliard third in the plaintiff Elizabeth and Christopher her brother, in equal moieties; and that, on the death of Christopher, his share both of the estate of Mary Anne and Harriet Tomlinson. vested also in his father. They submitted their case to the Court, and prayed a decree according to their rights. V. Wyatt V. Muse and The defendants, by their several answers, admitted the truth of the allegations in the bill; whereupon the Chancellor decreed, that, as to the real estate, the bill be dismissed; but, as to the personal, that the defendant Peter Kemp do render an account of his administration before Commissioners, and deliver and pay to the plaintiff, Charles Curtis, one half of the slaves and other personal estate of Mary Anne Murray, and four equal seventh parts of the slaves and other personal estate of Fanny Murray; and to the plaintiff Elizabeth Curtis, one equal seventh part of the said slaves and other personal estate of the said Fanny Murray. The decision of the Court of Appeals in the case of Tomlinson v. Dilliard having taken place subsequently to this decree, Thomas Muse, and Harriet his wife (formerly Harriet Murray) and Peter Kemp preferred a bill of review; being advised that the original bill ought to have been entirely dismissed, "because, according to the sta tute of distributions, the mother of the said Mary Anne and Fanny (who died infants and unmarried) and the children of their said mother by a second husband, were expressly excluded from any share of the property which they derived from their father," to which bill of review the defendants demurred, and the plaintiffs joined in deThe Chancellor, on argument, overruling the demurrer, reversed his former decree in toto, and dismissed the original bill with costs; whereupon an appeal was taken by Charles Curtis and Elizabeth Curtis; which afterwards abated by the death of the former, and was revived in the same of Peter Wyatt, his administrator. murrer. George K. Taylor, Wickham and Randolph, for the ap pellants, contended that the opinion of this Court, formerly expressed in the case of Tomlinson v. Dilliard, was erroneous, and might yet be retracted; the decree of the Court of Chancery having been interlocutory only. The two appeals now in question, and several others, had been brought up for the express purpose of having the point reconsidered; the public mind being generally dissatisfied, and the law not considered as settled by a single decision, concerning the propriety of which so great a diversity of opinion existed. Hay, Nicholas, Warden and Call, for the appellees, controverted these positions; insisting that this subject, having been decided, ought not again to be discussed; and if discussed, ought to be decided precisely as before. The argument on both sides was supported with great zeal and ability, during the 9th, 10th, 11th, 13th and 14th days of March, 1809; but a small part only can be comprehended within the limits of this work. APRIL, 1810. Dilliard Tomlinson. V. Muse and I. In support of the first point, (viz. that this Court had erred in the case of Tomlinson v. Dilliard,) it was said that the intention of the legislature in the 27th section of the act of distributions (a) could not have been to adopt, as (a) 1 Rev. Code, p. 164. to personal estate, the 5th and 6th sections of the act to reduce into one the several acts directing the course of descents; those sections being provisos, and containing terms properly applicable to real estate exclusively; such as the words "purchase or descent," "dower and curtesy." An infant cannot take personal estate by purchase or descent from father or mother. If the clause be taken at all, it must be taken altogether. If so, there must be dower or curtesy in the personal estate; which would be absurd. Suppose the words donation, grant, last will and testament, and intestacy, substituted in their proper places in those provisos, so as to make them apply to personal estate; APRIL, 1810. still the effect, as to the clause relating to property derived from the mother, would be nugatory; since, by the mar riage, all the wife's goods and chattels belong to the husTomlinson. band. Dilliard V. Wyatt V. Wife. In the commencement of the 27th section aforesaid, the Muse and legislature was extending privileges to the widow to which she was not before entitled; yet, by this construction, the concluding part is to deprive her of the whole, in case of the death of her child. (a) 1 Bl. 91. Again; the difficulty of applying the principle of preferring the blood of the first purchaser to the case of chattels is extreme; since, in every case, it would be necessary to ascertain whether sheep, hogs, or other things of a fluctuating and transitory nature, were derived from the father or mother. A construction big with so many difficulties, inconveniences and absurdities, ought to be avoided if possible, and the Court should be astute to get rid of them. This may be done either by construing the provisos in the act of descents as applying to the subject matter only; (which is lands;) or by rejecting them as to personal estate, on account of the absurd consequences which would otherwise result; (a or, thirdly, by construing the two acts (which both passed at the same session) as one instrument, and transposing the sentences so as to connect them properly, and make their meaning consistent and rational. With respect to authorities, Cutchin v. Wilkinson, 1 Call, 1. was relied upon as in conflict with Tomlinson v. Dilliard, and deciding substantially the same question. If the point was not argued in that case, it must have been because the members of the bar thought it too plain for argument. To shew the power of the Courts to correct the phraseology of laws, by restraining, enlarging, or modifying general words for the purpose of meeting the intention of the legislature, Brown v. Turberville, 2 Call, 395. was cited as a strong case; also Martin v. Ford, 5 T. R. 103. Wil |