Held, that the provision made in the will of H. for his wife must be taken in satisfaction of the bond, but subject to her liberty to elect between the provision under the will and the bond, and that this privilege was extended to her devisee, the plaintiff.

Actual maintenance is equivalent to the payment of a sum secured for separate maintenance, and, therefore, interest upon the bond during the husband's lifetime was not allowed.

Under all the circumstances of the case, it was determined that the bond was chargeable on the residue of the estate, and of this the personality first in order.

APPEAL from the circuit court for the District of Pennsylvania. This cause was argued by Mr. Key and Mr. Hopkinson, for the appellants and defendants, and by Mr. Jones, for the plaintiffs and respondents.

1817.

Hunter

v.

Bryant:

Mr. Justice JOHNSON, delivered the opinion of the March 12th.

court.

This is an appeal from a decree in equity, in the district of Pennsylvania, on a bill filed by Thomas Y. Bryant, against the legal representatives of

John Hare.

The object of the bill is to charge the lands of Andrew Hare, now deceased, through John Hare, to the appellants, defendants in the court below, with the payment of a bond for 5,000 dollars, and interest, given by Andrew Hare, in contemplation of marriage with Margaret Bryant, the mother of John

Hare.

The land lies partly in the state of Kentucky, and partly in the Mississippi territory, and five of the defendants live in the state of Pennsylvania, the sixth in the state of Virginia. The bill was origin

VOL. II.

E

1817.

Hunter

v.

Bryant.

ally filed against all six of the legal representatives of John Hare; but the name of Mary Dickinson, the resident in Virginia, being stricken out by leave of court, five only were made defendants below.

The bond is executed to George Hunter and William Hunter, two of these appellants. The penalty is in the usual form, and bears date the 10th of November, 1789. The condition is in these words: "Whereas, by the permission of God, a marriage is intended to be had and solemnized between the above bound Andrew Hare, and Margaret Bryant, of the city of Philadelphia, spinster, and the said Andrew Hare, in consideration of the said marriage, and to secure a decent and competent support to and for his said intended wife, as well during the marriage as after his death, in case she should survive him, and to all and every the child or children which may be born of the said marriage, in case he should survive her, hath agreed that the sum of 5,000 Mexican dollars, part of the estate whereof, by the blessing of God, he is now possessed, and the interest and income thereof accruing annually should be vested in trustees for the sole and separate use of the said Margaret Bryant, his intended wife, or the children born of her body in the manner hereinafter mentioned. Now, the conditions of the above obligation is such, that if the said Andrew Hare do, and shall, within the time of his life, or within the term of one year after the marriage shall take effect, (whichsoever of the said terms shall first expire,) convey and assure to the above-named George and William Hunter, the next

1817.

Hunter v.

friends of the said Margaret Bryant, and trustees by her for this special purpose chosen, or the survivor of them, or his heirs, executors, administrators or assigns, some good estate, real or personal, sufficient Bryant. to secure the payment of 300 Mexican dollars, as aforesaid, to the trustees, or the survivor of them, on every the 10th day of November, in every year after the date hereof, for the sole and separate use of the said Margaret, his intended wife, during the intended marriage; which annual payment shall be at her own disposal, and shall be paid upon her own orders or receipts, independent and free from the intermeddling charge or control of her said intended husband, and shall not be liable to any of his contracts, debts, or engagements whatsoever, and also sufficient to secure the payment of the sum of 5,000 dollars, as aforesaid, to and for the sole use of the said Margaret, in case she shall survive her said intended husband, to be paid to the said trustees, or the survivor of them, for her use within six months next after the death of her said intended husband, and in case of her death before her said intended husband, to be paid to the said trustees, or the survivor of them, for the use of all and every of the child or children of the said Margaret, to be born in pursuance of the intended marriage, to be equally divided amongst them, if more than one, but if but one, then the whole to the use of the said

Or, if the said Andrew Hare shall die before the said Margaret, and by his testament and last will shall, within the said year from the date hereof, give and bequeath to her such estates, legacies, bequests

1817.

Hunter

v.

Bryant.

and provisions, as shall be fully adequate to the provisions here intended to be made for her, and her child or children; then, and in either of the said cases, the above written obligation shall be void, otherwise the same shall remain in full force and virtue at law, in this state of Pennsylvania, and in all other states or kingdoms whatever."

The marriage accordingly took effect, and except when the husband was necessarily absent, in prosecution of his business as a merchant, the parties lived constantly together in great harmony, and in a style fully consonant with the husband's resources. In 1793 he established himself in Lexing ton, Kentucky, and was engaged in mercantile transactions until his death, which happened in 1799.

By his will Andrew Hare devised a tract of 1,000 acres of land lying in the Mississippi territory to his son John, in fee. A tract of 10,000 acres in the state of Kentucky equally between his wife and son, with a devise over to her in fee of the son's moiety if he died before he attained "the lawful age to will it away." And the rest and residue of his estate, real and personal, he gives to be equally divided between his wife and son, with the same contingent devise over to her as is given with regard to the Kentucky tract of 10,000 acres. The value of the property thus devised to her, independent of the contingent interest which has since fallen, might reasonably have been estimated at the time of the testator's death at about five thousand dollars.

In 1801, about eighteen months after the husband, the wife died; after having made a nuncupa

tive will, by which she devised all her estate, "whether vested in her by the will of Andrew Hare, her deceased husband, or otherwise," to be divided between her son John and the complainant below, Thomas Y. Bryant, with a contingent devise of the whole to the survivor.

John Hare died, aged about 11 years; and under this nuncupative will it is, that Thomas Y. Bryant derives his right to this bond. According to the laws of Kentucky this will was not sufficient to pass the landed estate of Margaret Hare, but it is good as to the personal estate, including the bond, which was the subject of this suit.

The defence set up in the answer below is, that the provision made in the will of the husband for his wife must be taken in satisfaction of this bond, inasmuch as he would otherwise have left his child, who ought to have been, and evidently was, the primary object of his care, probably destitute of support. And this court unanimously acquiesce in the correctness of this reasoning. For, every bequest is but a bounty, and a bounty must be taken as it is given. Positive words are not indispensably necessary to attach a condition. It may arise from implication, and grow out of a combination of circumstances which go to show, that without attaching such condition to a bequest, the primary views and prominent duties of the testator will be pretermitted. In this case, in addition to the striking improbability of the testator's intending to leave his child destitute, or even dependent, there are two circumstances which tend to show that the testator had no

1817.

Hunter

v.

Bryant: