1810.

OCTOBER, the common law or by statute, were entirely rescinded, abrogated and annulled: and that they cannot be revived in any Templeman manner, but by some express legislative provision for that

V.

Steptoe.

(a) See Acts of 1789, c. 9.

(b) See 1 T. R. p. 52.

purpose.(a)

3. That, if, by any subsequent act, any case provided for by the act of 1785 shall now happen not to be provided for, the Legislature only is competent to provide for such omitted case.(b)

4. That the case of an infant having lands by descent or purchase from his father, already deceased, dying in the life-time of the mother, and leaving no child, nor brother, nor sister, nor any descendant from either of them, was fully provided for by the fourth section of the act of 1785,

c. 60.

:

5. That the same happens now not to be provided for, by the operation of the act of 1792, c. 93. s. 5. The law declaring only that, in such case, the mother shall not succeed to the same without designating any other person or persons to whom the succession shall belong during the life of the MOTHER: neither the seventh section of that act, nor any subsequent part thereof, providing for the succes. sion in any such case.

From these principles, as premises, it appears to me that, in the case above supposed, (which is the same with that before the Court,) the succession to the inheritance during the life of the MOTHER was in ABEYANCE; and that, at her death, the whole estate, real and personal, ought to go to the same persons, and in the same proportions, as the same would have descended, if there had been no mother, nor brother, nor sister of the infant, nor any descendant from either of them, at the time of the death of the infant. And, consequently, that, after the death of the mother, the estate, both real and personal, ought first to be divided into two moieties, one of which moieties ought to be allotted to the plaintiffs in the several proportions, by which the Chancellor in his decree has directed that the whole shall be allotted; and that the other moiety be reserved for the benefit

of those relations on the part of the mother (of which by her answer to the original bill it appears probable there were some living at the time of the infant's death) who may within a reasonable time assert and prove their claims thereto. But if no such relations on the part of the mother shall assert their claim within a reasonable time, to be limited by the Court of Chancery, that the other moiety be then divided among the plaintiffs in the same proportions as the former.

OCTOBER,

1810.

Templeman

V.

Steptoe.

It also appears to me, that, as no person was capable of succeeding to the inheritance as HEIR, during the life of the mother, the account of rents and profits, subsequent to the death of the infant, ought not to be decreed to be taken for that period which elapsed between the death of the infant and the death of his mother. The inheritance, during that period, being, as I have already said, in abeyance, the first occupant, who might enter and possess himself thereof during that period, might, as I conceive, lawfully hold the same, and take the rents, issues, and profits thereof to his own use, so long as the mother lived, without being in any manner chargeable or accountable for the same to the persons to whom the succession may belong, after the mother's death.(a) My opinion, therefore, is, that so much of the Chancel- stone, vol. 2. lor's decree as is in opposition to these principles be sed, and that a decree conformable thereto be now and that the remainder of the decree be affirmed.

(a)See Tucker's Black

App. p. 28rever- 42. for the made:large upon

To prevent any misconception of this opinion, I beg leave to add that, if there had been any brother or sister of the infant on the part of his father living at the time of his death, or any descendant from them, such brother, sister, or their descendants, would have been entitled to take the estate immediately, notwithstanding the mother was then also living; as, in such a case, the inheritance would not have been in abeyance for a moment.

reasons at

which this Opinion is foun

ded.

OCTOBER, 1810.

Steptoe.

Judge ROANE. With respect to the first question made in this case, I consider it as the established doctrine of the Templeman Court that a decree of the inferior Court is not to be considered as final, until the cause is completely dismissed therefrom. Until that is the case, the Court below has, itself, the power to correct any errors it may have committed, and any decree it may have rendered is, therefore, not to be considered as final. Most of the arguments now used on this topic have been used and overruled on former

occasions.

As to the question now made upon the act of descents, I believe it will be admitted that I have borne my testimony* against the policy which gave rise to the act of 1790, restoring, in a measure, the feudal principle of the blood of the first purchaser. But, while I shall never be in favour of extending that principle in doubtful cases, by construction, I do not deny the power of the Legislature to make the innovation. The question before us is then purely a question of construction upon the intention of the Legislature as manifested in the act itself.

No man can be more sensible than I am, of the impropriety of extending the construction of an act by mere implication; especially to further an odious or unjust principle; but I apprehend that an implication may be so strong and necessary as to be equivalent to an express declaration by the Legislature. This I take to be the case in the present instance. The exclusion of the mother in the event that there is a brother or sister on the part of the father, or a brother or sister of the father, is substantially equivalent to an express declaration that the persons last mentioned shall themselves succeed; and this the rather, as the first section of the act of descents purports to provide a rule of inheritance as to all cases, and which idea is entirely supported by the opinion of this Court in the case of Brown v. Turberville. I consider that decision as a complete au

* In the two decisions in the case of Tomlinson v. Dilliard, &c.

1810.

V.

Steptoe.

thority to overrule the idea that the inheritance is in abey- OCTOBER, ance in the case before us. The succession in this case, therefore, does not rest upon a mere naked implication, but Templeman upon an implication so strong and necessary, (all the circumstances considered.) as to be equivalent to an express declaration by the Legislature. In this last respect this case differs from the one put in a note to 2 Tuck. Bl. App. p. 33. where an elder child being disabled from inheriting by receiving a popish education, and the statute which disabled him (1 Jac. I.) containing no declaration who should have the land, a subsequent statute was deemed necessary to be made in favour of the next of kin.

It is a sound rule of construction that, if it can be prevented, no clause, sentence, or word, shall be rendered superfluous, void, or insignificant.(a) In the case before us it (a)6 Bac. 380. is difficult to say where fore the brothers and sisters on the part of the father, and è converso, were mentioned in the act, but for the purpose of following up the principle on which the change of the rule was founded, and giving the estate to them, instead of the excluded parent.

Upon the whole, my construction of the act of 1792 is, that it is entirely similar to that of 1785, with the single exception of the amendment made by the act of 1790; (which is kept up and extended by the 5th and 6th sections of the act of 1792 ;) and that those sections operate by way of exception from the general law in the cases put therein, as well by substituting one heir, as excluding another. The error on this point seems to be in considering the canons of the act of 1785 as still in force, (for example, in favour of the paternal grandfather and maternal grandmother,) while at the same time the succession is changed, in a particular case, in favour of the maternal uncles and aunts, &c. As to the justice of this alteration, the power of the Legislature being admitted, we are compelled to say "stet pro ratione volun

tas."

I therefore concur with the Chancellor in his construction

1810

V.

OCTOBER, in the present instance, which is also that of the public at large, and thereby avoid the great evil (as almost all infants Templeman derive their property either on the part of the father or the Steptoe. mother) which would result from deciding that, in cases like the present, no rule of descent is provided by law, and that the estates are, consequently, in every instance, to be considered as in abeyance.

Judge FLEMING. The counsel for the appellant, in their statement, rested the cause on two points only:

1st. That the original decree was right; and,

2d. That the bill having been dismissed as to the personal estate, the decree was final as to that matter; and the plaintiffs were barred by length of time from filing a bill of review.

The cause was argued with great ability on both sides, but much the greater part of the arguments of the appellant's counsel seemed predicated on the assumption of facts which, in my apprehension, did not exist; to wit, that the decree of March, 1797, was final; and that the bill against Templeman, as executor of Elizabeth Steptoe, was a bill of review. In order to prove that the decree of 1797 was final, it was strenuously argued that there ought to have been two separate and distinct suits; one for the real, and the other for the personal estate: but, for what good purpose there should have been more than one suit, I am at a loss to discover. The counsel proceeded to argue that, as the Chancellor decided the right, respecting the personal estate and dismissed the bill, as to that subject, the decree was final: but this Court has never considered a decree to be final, so long as the parties remained in Court; but every or der and decree made during that space, has been considered as interlocutory, and subject to revision; as in the cases of (a) 2 Wash. Young v. Skipwith,(a) Grymes v. Pendleton,(b) and M'Call (b) Call, 54. v. Peachy.(c) In the former case, Skipwith brought his bill c) Ibid. 55. against Young for the moiety of a tract of land, according to contract. The Chancellor decreed for the plaintiff a moiety

300.