Royall v. Thomas.

is punished also as a criminal offense. But in the case supposed the Commonwealth is not prosecuting for the felony. She seeks no criminal forfeiture or conviction. The civil proceeding is simply to try the title to an office, and has no sort of connection with the punishment denounced by the penal law.

The Constitution provides that the governor, lieutenant-governor, judges, and all others offending against the State by mal-administration, corruption, other high crimes and misdemeanors, may be impeached before the senate and removed from office. Duelling being a high crime, especially where death ensues, is, of course, just cause of removal. If the accused is convicted, he is not only removed from office, but he is forever disqualified to hold any other office under the State. Will it be contended that in such case a previous conviction is essential to the success of the impeachment ? So far from it, the very clause in question provides that the party removed from office by the senate shall, nevertheless, be subject to indictment, trial, judgment and punishment, according to law, thus showing a judgment of ouster may precede the trial under an indictment. If there is any value in the doctrine as laid down by the Kentucky court, it would be in cases of impeachment. The accused is punished by perpetual disqualification, without trial by jury, and by a body of men, many of whom are elected without any reference whatever to judicial capacity and attainment. And the present Constitution goes a step further, authorizing the removal of any of the officers named, simply upon a joint vote of the two houses. If the senate may remove the highest executive officer in the State without previous trial and conviction, surely the courts may be safely trusted with the power of removing the clerks, sheriffs, notaries and other subordinate officers for like causes upon the same character of evidence. In both tribunals the defendant is duly notified of the accusation, and he is afforded every opportunity of defense he can reasonably desire. The proceeding by information, in the nature of a quo warranto, is as direct as an indictment; an issue is made up, and there is as little danger of injustice in the one form of proceeding as in the other. In cases of contested election the law has provided tribunals to adjudicate the rights of the respective claim

ants.

These tribunals, thus clothed with jurisdiction to try the title to an office, would seem, upon general principles, to have the power to ascertain and consider all such facts as relate to the question of eligibility. McCray on Elections, 198.

Barksdale v. White.

My opinion therefore is, whether the proceedings be to try the title of an incumbent, or to adjudicate the claims of an applicant for an office, it is legal and proper to establish the disability imposed by the Constitution in case of duelling by any competent and satisfactory evidence. The judgment of the Circuit Court, for the reason stated, must be affirmed.

So far as the defendant is concerned, the question decided is, perhaps, of but little importance to him, as it is understood he is embraced within the amnesty act passed by the present legislature. Whether that act includes all persons in the State under disability by reason of a violation of the anti-duelling statutes is not known. At all events the question is a grave one, likely to arise any time hereafter. We have, therefore, deemed it best to give the subject a careful consideration, and to place the whole matter beyond the pale of discussion, so far as the unanimous opinion of this court can effect that object.

In regard to the point raised by the attorney-general, that the writ of quo warranto is no longer in use in this State, if ever in use here, but has been superseded by the information in the nature of a quo warranto, we have not deemed it necessary to express any opinion. The writ in this case was sued out by an officer of the Commonwealth, was not objected to by the defendant, and is not now objected to by him. It was agreed by the parties in the court below to waive all formal pleadings, and to submit the whole matter to the court. Under such circumstances the court is not inclined to dismiss the whole proceeding from its inception, because the complaint is called a writ of quo warranto rather than an information.

Judgment affirmed.

BARKSDALE V. WHITE.

(28 Gratt. 224.)

Will-legacy, when revoked by subsequent clause.

A clear and absolute gift under one clause of a will is not limited by a subsequent clause except by the employment of clear and explicit terms. A testator bequeathed certain property to his daughters and their heirs forever; in a subsequent clause he "loaned" the residuum of his estate to the same children for life, with remainder to their children, providing that if any of

Barksdale v. White.

his said children should die without an heir of the body, "all the property loaned or given them" should go to his grandchildren. Held, that this limitation applied to the residuum and not to the previous gifts.

SUTL

QUIT for construction of a will, brought by the grandchildren of the testator. The will is set out in the opinion. One of the testator's daughters, Martha McCargo, died without issue. The court below held that the grandchildren took her share under the ninth clause, but that the legacies in the third clause had vested in her absolutely. From this decree the grandchildren appealed.

Jones & Bouldin, for appellant.

W. W. Henry, for appellees.

CHRISTIAN, J. 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 chest of drawers, six sitting chairs, and fifteen hundred dollars in money to her and her heirs forever.

4th. I give to my daughter, Jane McCargo, five negroes, such as she may 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 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 for

ever.

7th. I give to my daughter, Cicily Elliotte, all the property that I have heretofore possessed her of, to her and her heirs forever.

VOL. XXVI-44

Barksdale v. White.

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 determime 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. In each clause the bequest is, "to her and her heirs forever."

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, 88, 107, has been substantially adopted by this court, as it is the established rule of the

English chancery.

Barksdale v. White.

See Mooberry v. Marye, 2 Munf. 453; Rayfield & Wife v. Gaines, 17 Gratt. 1. In the last-named case Judge JOYNES, delivering the opinion of the court, say: "Clear and unambiguous provisions expressly made cannot be controlled by mere inference and argument from general or ambiguous provis ions in other parts of the will." See, also, 2 Lomax Ex'ors, ch. 11, § 1, p. 11; Collet v. Lawrence, 1 Vesey, Jr., 269; Blake v. Bunbury, id. 194, note 4, and cases therein cited; Jones v. Colbeck, 8 Ves. 38.

Now applying these principles and rules of construction to the case before us it is plain that the testator by the 3d, 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 hereinafter 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 court is of opinion, that the absolute estate conferred upon. his daughters, given "to them and their heirs forever," by the preceding clauses, is not affected or limited by the 9th clause. That clause is limited in its operation, in express terms, to property "not herein before particularly disposed of."

The latter provision of the ninth clause, in the words, "but should any or either of my daughters die without an heir of their