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will, or of the claim of the daughters, for we are all of opinion, that the probate of the will in Pennsylvania cannot be considered as constructive notice to any person, of the devise of the lands in controversy. The decree of the Court below must, therefore, be affirmed generally, with costs.

[DEVISE.]

WRIGHT, Plaintiff in Error, v. DENN, ex dem.
PAGE, Defendant in Error.

J. P., by his last will, after certain pecuniary legacies, devised as follows: "Item, I give and bequeath unto my loving wife M., all the rest of my lands and tenements whatsoever, whereof I shall die seised in possession, reversion, or remainder, provided she has no lawful issue. Item, I give and bequeath unto M., my beloved wife, whom I likewise constitute, make, and ordain, my sole executrix of this my last will and testament, all and singular my lands, messuages, and tenements, by her freely to be possessed and enjoyed,” &c." and I make my loving friend, H. J., executor of this my will, to take care, and see the same performed, according to my true intent and meaning," &c. The testator died seised without issue, and, after the death of the testator, his wife M. married one G. W., by whom she had lawful issue. Held, that she took an estate for life only under the will of her husband, J. P.

Where there are no words of limitation to a devise, the general rule

of law is, that the devisee takes an estate for life only, unless, from the language there used, or from other parts of the will, there is a plain intention to give a larger estate.

To make a pecuniary legacy a charge upon lands devised, there must be express words, or a plain implication from the words of the wilk

ERROR to the Circuit Court of New-Jersey. This was an action of ejectment brought in the Court below. The sole question arising upon the state of facts in the cause, was upon the construction of the will of James Page, made on the 15th of February, 1774. By that will, after the usual introductory clause, the testator proceeds as follows: "Item, I give and bequeath unto my beloved sister, Rebecca, 100 pounds, proclamation money, to be paid in four after my

cease.

years

de

"Item, I give and bequeath unto my beloved sister Hannah, the sum of 50 pounds, proclamation money, to be paid when she is of age.

"Item, I give and bequeath unto my sister, Abigail, the like sum of 50 pounds, proclamation money, to be paid when she arrives at age.

"Item, I give and bequeath unto my loving wife Mary, all the rest of my lands and tenements whatsoever, whereof I shall die seised, in possession, reversion or remainder, provided she has no lawful issue.

"Item, I give and bequeath unto Mary, my beloved wife, whom I likewise constitute, make, and ordain, my sole executrix of this my last will and testament, all and singular my lands, messuages and tenements, by her freely to be possessed and enjoyed; and I do hereby utterly disallow, revoke, and disannul, all and every other former testaments, wills, legacies, and bequests, by me in any ways before named, willed and bequeathed, ratifying and confirming this, and no other, to be my last will and testament. And I make

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1825. my loving friend, Henry Jeans, of the county and province aforesaid mentioned, executor of this my will, to take care and see the same performed, according to my true intent and meaning; and for his pains," (leaving the sentence incomplete.) "In witness whereof," &c. (in the common form of attestation.) The testator was seised of the land in controversy at the time of the will, and died seised, without issue, on the 10th day of October, 1774, leaving his wife Mary, the devisee, who, afterwards, married one George Williamson, by whom she had lawful issue still living, and died in the year 1811. The lessor of the plaintiff is the brother of the testator, and his only heir at law. The defendant claims title to the premises as a purchaser under Mary, the wife of the tes

tator.

The title of the testator to the premises was derived from a devise in the will of his father, John Page, dated the 11th of November, 1773. That will, among other things, contained the following clause: "Item, I give and devise unto my son James, one equal half part of my land, (comprising the land in controversy,) with all my plantation, utensils, &c. &c. to him, his heirs and assigns, for ever." He then gives the other moiety of the land to his son John, to him, his heirs and assigns. He then bequeaths several legacies to his daughters, Sarah and Mary, and adds, "Item, I give and bequeath to my three daughters, Rebecca, Hannah, and Abigail, Rebecca the sum of 50 pounds, Hannah and Abigail the sum of 50 pounds each of them. Like

wise it is my will, that my son James do pay Hannah and Abigail the said sum of fifty pounds each, when they come of age." He then concludes his will by appointing an executor, and revoking all former wills, &c.; and died soon afterwards. James (the son) left no other real estate than that devised to him by this will. What personal estate he or his father left, at the times of their decease, was not found in the case; and, therefore, it did not appear whether or not it was sufficient to pay the legacies in their wills.

The Court below gave judgment for the lessor of the plaintiff, who was the heir at law of the testator, and the cause was brought, by writ of error, to this Court.

Mr. Wood, for the plaintiff in error, contend- Feb. 21st. ed, that Mary, the wife of the testator, took a fee simple under the devise.

It was admitted, that a devise of land, without any technical words of limitation, or explanatory words, gives only an estate for life. But the intention of the testator will supersede this rule, and is the polar star to guide in the construction of wills. The local legislature were so impressed with the good sense of this principle, that, in 1783, a few years after the making this will, they passed a statute, declaring that a devise of lands should pass a fee, unless it was expressed to be for life only. Courts ought, therefore, to be liberal, in considering the explanatory words and circumstances relied on, to show an intention to devise the fee; by so doing, they further the in

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tention of the testator." Greater certainty is not attained by a rigid than by a liberal construction of devises. The only mode of arriving at certainty is, by admitting a general devise to pass a fee, or by requiring strict technical words of limitation. The notion that descent is the general rule, and devise the exception, is more specious than solid. They are both distinct, co-ordinate rules.

He would first examine the clauses of the devise in question separately, and then consider their combined operation.

The words, "all the rest of my lands and tenements, whatsoever, whereof I shall die seised, in possession, reversion, or remainder," &c. are sufficient to pass a fee. The words rest, and in reversion or remainder, ought not to be rejected, if a meaning can be discovered for them. The devise of all the rest of his lands to his wife, clearly imports, that the previous pecuniary legacies shall be a charge on the lands, and that his wife shall be entitled to whatever interest remains after the legacies are paid. A charge on lands may be implied in a will." An estate tail in lands may be created by implication from a proviso a fortiori, a charge may be implied.

a Richardson v. Noyes, 2 Mass. Rep. 59. Doe v. Richards, 3 Term Rep. 359. Willes' Rep. 140. .Goodright v. Allen, 2 W. Bl. 1042.

b Smith v. Tinsall, 2 Salk. 685. 1 Ves. Jr. 440. Prec. in Ch. 430. Alcock v. Sparhawk, 2 Vern. 229. 2 Dall. 131.

c Chapman's case, Dyer, 333. Ring v. Rumbal, Cro. Jac.

448.