Unknown County MsArchives Court.....Vick, John 1839
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Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Vick's Ex'or, Appellant, v. M'Daniel et al.

pages 337-342

The residuary legatee is entitled to take whatever may by lapse, invalid 
disposition, or other casualty, fall into the residue after the date of the 
will.

Where the testator made several specific bequests and also manumitted several 
slaves contrary to law and the policy of the state: Held, the slave should go 
to the residuary legatee, and not to the heirs at law.

APPEAL from the court of chancery.

The appellees filed their bill of complaint in the court below, on the 4th day 
of December, 1837, in which they averred, that a certain John Vick died 
without children, or the descendants of them, having previously made his 1ast 
will and testament, which was duly proved and recorded. That by his will, he 
emancipated certain slaves mentioned in their bill, which were claimed 
together with others not emancipated. The appellees also alleged, that they 
were the sole heirs of said John Vick.

John W. Vick, the defendant, against whom the bill was filed, was appointed 
executor; took out letters testamentary as such, and had possession of the 
slaves.

The will was made a part of the record, and shows the disposition of the 
slaves, and after making several specific legacies, concludes with the 
following residuary bequest: "And touching and concerning the remainder of my 
estate not herein disposed of; it is my will and desire that the same shall be 
given to my brother Burwell Vick, for, and during his natural life, and be, 
and remain under the control and management of the said John W. Vick, for my 
brother's use and benefit, and at his death, I give and bequeath the same to 
the said John W. Vick, his heirs and assigns, in fee simple forever."

It also appeared, that Burwell Vick was a lunatic.

It was admitted, that the direction of the will with regard to the 
emancipation of the slaves was invalid, and that the question was as to 
whether the slaves are property of the complainants as the heirs of John Vick, 
or that of the residuary legatee.

The chancellor decreed the slaves to the complainants below, as heirs at law, 
from which decree, an appeal was taken to this court.

Taylor and Tarpley, for the appellants.

In a will of personal estate, a general residuary bequest carries to the 
residuary legatees not only what is not disposed of to others, but also 
whatever is not legally disposed of so as to pass to the person intended as 
the object of the testator's bounty. It is otherwise as to real estate. James 
v. James, 4 Paige, 115: Gore v. Stevens, 1 Dana, 206.

Every testator is presumed not to intend to die intestate, as to any part of 
his estate. Therefore, a residuary clause, unless expressly restrained, always 
passes what is not otherwise disposed of. Dev. Eq. 386. And though residuary 
legatees are not usually favored, the court will do what it can for them, when 
the testator manifestly intended to provide chiefly for them. Ibid. 387.

The interest of a legacy not expressly disposed of by will, till the persons 
come into existence who are to take the capital, falls into the residue. Turn. 
& Russ. 314.

A testator gave 1000 pounds to his natural son, and if he died under twenty-
one, then that sum and the residue to go to the testator's family; and he gave 
the residue to his natural son to be applied as above directed; the son died 
under twenty-one. Held, that the 1000 pounds was part of the residue, and did 
not pass to the testator next of kin as a legacy. 4 Sim. 21.

The general rule is, that a lapsed legacy of chattels passes under a general 
residuary bequest; but the rule does not apply where the residuary bequest is 
of a particular fund or description of property, or other certain residuum. 1 
Hill’s Chanc. 97; 2 Dessauss. 138; 1 Russ. 146, 276; Durow v. Motteux, 2 Roper 
on Legacies 453; Kennell v. Abbott, Ibid.; Cambridge v. Rous, Ibid. 454; Bland 
v. Lamb, Ibid. 456.

Holt, for the appellees.

It is believed that no interpretation of the will, however tortured or far 
fetched, can give three slaves to the residuary legatee.

In interpreting wills, "the intention of the testator is the first and great 
object of inquiry, and to this object, technical rules are made subservient—
that intention when ascertained must govern, unless it conflict with some 
principle of law, or of public policy. The inclination of courts in modern 
times, is to allow men to make their own wills, and not to make wills for them 
by virtue of arbitrary rules. In the present case, the intention of the 
testator, as clearly and emphatically expressed, was to emancipate the slaves 
in question, and have them transported, either to the state of Ohio or 
Indiana. That intention, however, is at war with the fundamental policy of the 
state, and the courts will not enforce it. But while they will not enforce it, 
they will not violate it, by giving the slaves to one as his absolute 
property, who was selected by the testator, as the instrument to carry his 
purposes of manumission into effect. The words, "the remainder of my estate 
not herein disposed of," were, it is well known, designed by the testator to 
apply to three slaves—for he had in a previous part of the will disposed of 
them, by declaring them emancipated. Could he have intended to bequeath as 
slaves, those, whom in the preceding clause of the will he had manumitted? The 
rule of construction would be as arbitrary and absurd, which under the mocking 
pretence of executing the will, should give to bondage, those whom that will 
had in words emancipated. In Green v. Dennis, 6 Conn. Rep. 292, the devise was 
held void, because the devisee was incompetent to take, and yet though the 
devise was void from the beginning, the heir was preferred to the residuary 
devisee, on the ground that the testator never intended that the specific 
devise, which was void, should fall into the residuum. The residuary devise 
was of "the rest and residue of the estate therein disposed of," —almost the 
same words used in the will now under examination. That decision was rested 
upon a principle unassailable, and which should never be departed from—that 
the residuary devisee or legatee, shall not by any forced or artificial rules 
be allowed to claim property, which it is clear the testator never intended to 
give him. And that principle, if appied, must be decisive of this controversy. 
The law will give these slaves to the heirs, because John Vick has not given 
or intended to give them to any one else, which is reason enough. Devises by 
implication are sustained only upon the principle of carrying the testator’s 
intention into effect." 3 Paige, 1. If this bequest, as construed by 
defendant, were carried into effect, it would be an acknowledged violation of 
the testator's intention, by making slaves of those whom he intended to free. 
The decree of the chancellor should, it is believed, be fully affirmed.

Mr. Justice TROTTER delivered the opinion of the court.

The general rule upon this subject seems to be as well settled as any in the 
law. A residuary legatee will be intended to take whatever may by lapse, 
invalid disposition, or other casualty, fall into the residue after the date 
of the will. 2 Roper on Legacies, 453. The same rule is laid down in 2 
Maddock, 94, where it is stated upon a review of all the authorities upon the 
subject, "that a residuary bequest carries not only every thing not disposed 
of, but every thing that is ill disposd of, and every thing that in the event 
turns out not to be disposed of, whether by a partial revocation of a will, a 
lapse, or by a gift being void.

The case of Durour v. Motteux, 1 Vesey Sen. 320, is, in principle, precisely 
the case under consideration. Motteux devised all his real estate to trustees, 
to sell and dispose of the whole with his personal estate, for the payment of 
his debts and legacies.

He then gave 1200 pounds to be invested in the purchase of freehold lands for 
charitable uses, &c. This legacy being void by the stature of mortmain, the 
question was, whether it should go to the heir, or residuary legatees; and 
Lord Hardwicke decided, that it belonged to the latter. He says that the land 
having been directed to be turned into money is to be treated as such, and 
having thus showed it to be a personal bequest, goes on to remark, "that the 
court cannot say, because one of the personal legacies is void, that for that 
reason, contrary to the express will, he intended to die intestate. Giving the 
residue over, includes every thing. Let it fall in, by reason of that legacy 
being void."

In Leake v. Robinson, 2 Merivale, 392, the same principle is recognized and 
enforced. After deciding that the bequests to the grandchildren in that case 
were wholly void, the court proceeded to the inquiry whether they belong to 
the heir or residuary legatee. It is then said, that every thing which is ill 
given by the will, falls into the residue, and that it must be a very peculiar 
case indeed in which there can be at once a partial intestacy and a residuary 
clause. It is immaterial how any part of the property is undisposed of whether 
by the death of a legatee or the illegality of the bequest. Either way it is a 
residue. It may in words have been before given, but if not effectually given, 
it is undisposod of and included in the denomination of residue. A testator 
supposes, that each part of his will is to take effect, and consequently, 
cannot be said to have any intention to include in his residue, any thing be 
has before given. Hence, we take it that the rule of intention, which is 
cardinal in the construction of wills, wh3re there is any doubt upon the 
language of them, and which is so strenuously invoked in this case by the 
counsel for the appellees, cannot here be the criterion. It is evident that 
the testator did not intend that the slaves in question should belong either 
to the heirs or the residuary legatee. He intended that they should be 
emancipated—that intention is defeated by the operation of our fundamental 
law, and the settled policy of the state, and the question of ownership must 
be determined by the established rules in such cases. The limitations of a 
particular bequest, and those of the residue, may be quite incongruous, and 
yet what is not disposed of will fall into the residue. Here, express 
intention in favor of either heir or residuary legatee is out of the question, 
yet the courts refuse the bequest to the heir, on the ground that it is 
contrary to the express will of the testator, to support those he intended to 
disintestate as to that bequest. It is, therefore, thrown into the 
residue. "And this rule will not be made to yield to the probabilily that the 
testator would have given the illegal and void legacy to others. That would be 
to undertake to make a will for the testator, contrary to established rules. 
Gore v. Stevens, 1 Dana S. Rep. 206. We have not been able to find one case in 
which this principle has been departed from.

In devises of land, a different rule, it is true, prevails; the distinction is 
noticed in the several cases to which we have referred, and it is well 
settled, that "real estate not disposed of, or ill disposed of, goes to the 
heir." The reason of this distinction appears to exist in the desire of the 
courts to prevent the residuum from going to the executor in one class of 
cases, and to the benefit of the heir in the other. 1 Dana Rep. 206. This 
distinction must have decided the case of Green v. Dennis, 6 Conn. Rep. 292, 
which is relied on by the counsel for the appellees. We have not been able to 
find the book, but it was evidently a devise of real estate, and as the 
devisee was incompetent to take, the court very properly determined it to 
belong to the heir instead of the residuary devisee.

An objection is raised against the claim of John W. Vick as residuary legatee, 
on the ground that Burwell Vick who has the life estate in the slaves, by 
claiming as heir against the will, has removed all benefit in the residue 
clause, and, therefore, that, during his life, distribution should be made. 
Burwell Vick is a lunatic, and cannot be prejudiced by any step taken by 
another; the court feel bound to regard his rights as they arise under the 
will, and not suffer them to be impaired by any mistake which others may have 
committed as to the nature or extent. They do not conceive the bringing this 
suit any renunciation of his rights under the will. It cannot affect the 
rights of John W. Vick, because he is the trustee for Burwell Vick, and is 
invested with the entire control and management of the property during his 
life. The property could only be taken from him to subserve the purposes of 
the trust. The bill does not go upon any ground of complaint against the 
appellant for the management of this trust.

We are, therefore, of opinion, that the appellees cannot recover the slaves in 
controversy, and that the decree of the chancellor should be reversed, and the 
bill dismissed with costs to the appellant.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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