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![handle is hein.slavery/ssactsengr0664 and id is 1 raw text is: ALDEN V. GREGORY
codicil. In cases of this kind it is absolutely neces-[278]-sary to take into consideration
the subject-matter and the relative situation of the parties.
Though the will and codicil are very inaccurate, yet taking these circumstances
into consideration, I have not the least doubt but that he intended at the time of making
his will not to give legacies to his younger children with partiality, but to discharge
his parental duty by giving all of them portions; and therefore, though he enumerates
his sons and daughters by name, yet he describes them as all his younger children,
and it is the same as if he had said, I mean to give portions to all my younger children,
share and share alike. If he had died without making a codicil, it would not have
exceeded the latitude of jurisdiction which this court has taken to construe wills accord-
ing to the spirit of them, and none but one superior court can convince me of my error
in such a construction. Courts of equity construe wills liberally, and do not shackle
themselves with little narrow constructions.
I consider the codicil as made with two intents and purposes. First, to shew that
he did not mean to exclude the after-born children, but intended to provide for them
also as he had done before for the others. It enumerates the second set of younger
children in the same manner as he had done the first set in the will, and incorporates
them in the will. His second object was to augment the quantum of the fund as his
family increased. After taking notice of the portions given by his will to his then
younger children (not considered as particular objects otherwise than as they were
younger children), and that his family was increased, he charges the estates with a
further sum ;-for whom ?-for his family, for all his younger children.
It has been argued that he intended a distinct sum for [279] the four children.
But I think he intended to give them equal portions, and not legacies, which are arbi-
trary. Suppose the estate had been worth £30,000 instead of £10,000; could he
have intended that in one event they should have nothing, and in the other twice
as much as the former younger children ? The plain way to construe it is to say,
that he had before given £10,000 to his then younger children he now gives a larger
sum, because his younger children are increased in number. It is observable, too,
that he alludes to the conditions, &c., mentioned in the will, viz. the limitations over
in case the estate should come to one of the younger sons.
Upon the whole I am of opinion, and must declare, that upon the true intent and
meaning of the said testator's will and codicil, his intention was to make all his younger
children's portions equal, share and share alike; that the term devised to the trustees,
together with the inheritance, be sold. But in case the produce of the real estate
does not amount to the sum of £10,000, the same must be made good out of the personal
estate of the testator as far as the same will extend. (Reg. Lib. A. 1764, fol. 21.)
(Note : See a similar mistake in calculation rectified in a will on the authority of Milner
v. Milner, in Phipps v. Lord Mulgrave, 3 Ves. 613. Vide also Danvers v. Manning,
2 Bro. C. 0. 18 ; Stebbing v. Walloey, ib. 85; Williams v. Williams, ib. 86; Garvey
v. Hibbert, 19 Ves. 125.)
[280] ALDEN v. GuREGOR . Nov. 13, 14; Dec. 6, 7, 10, 1764.
Fraudulent conveyance set aside as against a purchaser with notice, notwithstanding
a great length of time which had elapsed since the original transaction.
Charles Alden being seised in fee of a plantation at Jamaica, called Barbican, by
his will bearing date the 8th of August 1699, devised the same to his executors, to
sell and divide the money arising from such sale between his wife and children. The
wife died soon after, and by her will devised her share of the said money to her three
surviving children, Thomas, Judith, and Ann. Edward Brown was the sole acting
executor under the wills, and guardian of the children, and Charles Chaplin was
manager and receiver of the estate in Jamaica.
As soon as the children came of age Brown proposed to them to become the purchaser
of the estate, and to take the hazard on himself of discharging all the incumbrances;
and accordingly articles of agreement were entered into, that on the 10th of June
then next, at the costs and charges of the said Edward Brown, his heirs, executors,
administrators, and assigns, they the said Thomas, Judith, and Ann Alden would
convey to him, or to whom he should direct, the fee simple of the said plantation, and
all the estate which they had by virtue of the will of the said Charles Alden, or Juditk
G. vlii.-29*
2 EDEN, 278.](ViewImageLocal?handle=hein.slavery/ssactsengr0664&div=1&collection=&method=preview&ext=.png&size=3)