Joseph Story

“ In consulting the language of this clause, it is difficult to perceive any clear intention that William King is to take, under any circumstances, a beneficial interest in fee. He is no where alluded to in the will as the primary object of the testator's bounty, or as, in any peculiar sense, a favoured devisee. The object of the testator seems to have been, to keep his great estate together, and to pass the inheritance to some one, who should unite in himself the blood of his own family and that of his wife, and thus become the common representative of both. ”

“ If we have succeeded in establishing, as the true and legal construction of the clause in which the appellant is named, that he took an estate, which, in case of his marriage as prescribed, and having issue as anticipated, would have enured exclusively to the benefit of such issue; we have advanced far in arriving at a solution of the present question. ”

“ Even in cases where no reasonable doubt could exist, as to the intention of the testator in point of fact, as where, in the will of an unlettered person, real and personal property are comprehended in the same clause; the absolute estate in the one passes, and only a life estate in the other. ”

“ It is my wish and request that my wife, William Trigg, and James King, or any two of them that shall concur in carrying on the business, should join with all the young men that may reside with me, and be assisting me in my decease, that are worthy, or furnish them with four or five thousand dollars worth of goods, at a reasonable advance, on a credit of from three to five years, taking bonds with interest, from one year after supply. ”

“ It is argued that the use of the term 'trust' gives the appellees all the rights which equity will give to a cestui que use. But these are only certain trust estates which, in courts of chancery, are treated as estates held in trust for the use of others. ”

“ We agree that William King, the lessor of the plaintiff, is the same William King, the son of James King, brother of the testator, mentioned by him in the will. We further agree that William Trigg, in the will mentioned, departed this life on the 4th day of August 1813, leaving Rachel Trigg, in the will mentioned, his widow, and four sons, the said Rachel having borne them to the said William, and not having borne any daughter to him, the said William Trigg, at any time, which said sons are all living. ”

“ In each and all these cases the heirs will take. It is not sufficient, that the court may entertain a private opinion of the intention of the testator, or be satisfied what he would have done, had he correctly anticipated the future. ”

“ The provisions of the will are tolerably precise and distinct; but it is owing to their particularity and minuteness of detail that the present difficulty arises. Testators, like legislators, succeed best, and most effectually avoid litigation, when they avoid an enumeration of all the various circumstances for which they design to provide. ”

“ When it is once ascertained that the devisee is the person intended to be benefited, he is to have all the benefits of contingencies, and to have all the benefits which arose from relieving the estate devised from all charges, &c. ”

“ The condition of marriage is inconsistent with the idea of William King being a trustee. If he had married according to the terms of the will, he would not have been a trustee, but would have held the estate absolutely. 2 Atk. 150; 2 Vernon 645. Cases cited in the argument of the former case: 1 Peere Williams 309; 1 Merivale 301, &c. See 3 Peters 373. Where there is a consideration, there can be no resulting trust; 7 Bacon, ch. 143: and in this case the consideration was marriage.
Mr Coxe, for the appellees. ”

“ The bill was brought by the plaintiffs, as heirs at law of William King deceased, to obtain a perpetual injunction of a judgment at law, upon an ejectment, in which a recovery was had by the appellant, of certain parcels of land, which he claimed as devisee under the will of the said William King, deceased. The case in which the recovery was had, came before this court upon a special statement of facts, agreed by the parties, at January term 1830, and will be found reported in the third volume of Peters' Reports, p. ”

“ Also, of nineteen lots in the town of Abingdon, in Washington county, nine of which produced an annual rent of six hundred and sixty dollars. Also, of fourteen tracts of land in the county of Wythe, containing three thousand four hundred and ninety-four and a half acres. ”