1877. March Term. Bichmond. BARKSDALE &als. v. WHITE fals. March 16. 1. Testator, by five separate clauses of his will, gives to his five daugh- 2. Where property is clearly given absolutely by one clause of a will, the This was a suit in equity instituted in the circuit court of Halifax county, by David H. White and others, grandchildren of James McCargo, to have a construction of the will of said McCargo. It appears that Martha McCargo, one of the children of James McCargo, married John J. Watson, and surviving him died without children; and the question intended to be raised is, which of the grandchildren of James McCargo were entitled to the property bequeathed to the said Martha in the third clause of his will. The will is set out in the opinion of Judge Christian, except a codicil, which this court held did not affect the previous bequests. There was a decree in the circuit court which held that the specific property bequeathed to Martha McCargo passed under the ninth clause of the will to the grandchildren of James McCargo living at the death of Martha; and there was a second decree which held that the money part of the legacy was hers absolutely. The appellants afterwards filed a bill to review the last decree; but upon the hearing the bill was dismissed. And they thereupon applied to this court for an appeal; which was allowed. Jones & Bouldin, for the appellant. W. W. Henry, for the appellees. CHRISTIAN, J., delivered the opinion of the court. The question in this case depends altogether upon the construction of the will of James McCargo. The testator, after directing the payment of his debts and after making a liberal provision for his wife, made the following disposition of his property for the benefit of his daughters: 3d. I give to my daughter, Martha McCargo, five choice negroes, such as she may think proper to select from my estate, one yoke oxen, four cows and calves, one best horse, saddle and bridle, ten head sheep, two sows and pigs, four hundred pounds pork, two beds and furniture, one black walnut bureau, one small VOL. XXVIII-29 1877. March Term. Barksdale & als. V. White & als. March 1877 chest of drawers, six sitting chairs, and fifteen hunTerm. dred dollars in money to her and her heirs forever. Barksdale & als. V. als. 4th. I give to my daughter, Jane McCargo, five negroes, such as she may select from my estate, one White & yoke oxen, four cows and calves, one best horse, saddle and bridle, ten head sheep, two sows and pigs, four hundred pounds pork, two beds and furniture, one black walnut bureau, one small chest - drawers, six sitting chairs, and fifteen hundred dollars in money, to her and her heirs forever. 5th. I give to my daughter, Mary Magdalen White, all the property that I have heretofore possessed her of, to her and her heirs forever. 6th. I give to my daughter, Francis Booth, all the property that I have heretofore possessed her of, to her and her heirs forever. 7th. I give to my daughter, Cicily Elliotte, all the property that I have heretofore possessed her of, to her and her heirs forever. 8th. It is my will and desire, immediately after my death, that all money due me, by bond or otherwise, be collected, and the legacies herein before named paid, and the balance laid out in land, to be divided as hereafter directed; and I hereby request and appoint my friends, Hezekiah McCargo, Thomas Roberts, John Coleman, Richard Russell and William Bacon, to make the purchase. 9th. The balance of my estate, both real and personal, that I now possess, or that may be purchased after my death, of what nature or kind soever it may be, not herein before particularly disposed of, I desire may be equally divided among my several children before named, which I lend to them for and during the term of their natural lives, and after their death to be equally divided among their children; but should either or any of my daughters die without an heir of their own body, it is my will and desire that all the property loaned or given them be equally divided among my grandchildren. The question we have to determine is, whether the bequests contained in the third, fourth, fifth, sixth and seventh clauses, are to be controlled or restricted by the latter part of the ninth clause. In the first named five clauses, the property bequeathed, by terms plain and unequivocal, is given to the donee respectively, absolutely without any restriction whatever. The words used in each clause are the appropriate and technical words to create an absolute estate. clause the bequest is, "to her and her heirs forever." In each It is a settled rule, in the construction of instruments, that if an estate is conveyed, an interest given, a benefit bestowed in one part by clear, unambiguous, explicit words, upon which no doubt could be raised to destroy or annul that estate, interest or benefit, it is not sufficient to raise a mist or create a doubt from other terms in another part of the instrument. Possibilities and even probabilities will not avail. The terms to rescind or cut down the estate or interest before given, must be as clear and decisive as the terms by which it was created. If the benefit is to be taken away it must be by express words, or by necessary implication. This rule of construction thus stated in the clear and comprehensive terms of the Lord Chancellor in Thornhill v. Hall, 8 Bligh's R. 88, 107, has been substantially adopted by this court, as it is the established rule of the English chancery. See 1877. March Term. Barksdale & als. V. White & als. March Barksdale &als. V. White & 1877 Mooberry v. Marye, 2 Munf. 453; Rayfield & wife v. Term. Gaines, 17 Gratt. 1. In the last named case Judge Joynes, delivering the opinion of the court, said: "Clear and unambiguous provisions expressly made cannot be controlled by mere inference and argument from general or ambiguous provisions in other parts of the will." See also 2 Lomax Ex'ors, ch. 11, § 1, p. 11; Collet v. Lawrence, 1 Vesey, Jr., R. 269; Blake v. Bunbury, 1 Vesey, Jr., R. 194, note 4, and cases therein cited; Jones v. Colbesh, 8 Vesey R. 38. als. Now applying these principles and rules of construction to the case before us, it is plain that the testator by the 3rd, 4th, 5th, 6th, and 7th clauses of his will, gave to his daughters an absolute estate in the property bequeathed to them by clear unambiguous and explicit words. Are these bequests controlled or limited by the 8th and 9th clauses of the will which follow, and as before quoted, are in these words: 8th. It is my will and desire, immediately after my death, that all money due me by bond or otherwise be collected, and the legacies hereinbefore named paid, and the balance laid out in land, to be divided as hereafter directed; and I hereby request and appoint my friends, Hezekiah McCargo, Thomas Roberts, John Coleman, Richard Russell and William Bacon, to make the purchase. 9th. The balance of my estate, both real and personal, that I now possess, or that may be purchased after my death, of what nature or kind soever it may be, not herein before particularly disposed of, I desire may be equally divided among my several children before named, which I lend to them for and during the term of their natural lives, and after their death to |