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wise it is my will, that my son James do pay Han- 1825. nah 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
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;o 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.
6 Smith v. Tinsall, 2 Salk. 685. i 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.
These lands were already charged in the hands 1825. of the testator with the payment of other lega
Wright cies, by the will of his father, John P., and which v.
Denn. were not then due. The clause in question then is, as it purports to be, a general residuary clause, in which the testator means to devise all his remaining interest in his real property. He could not have meant the rest of his lands by way of local description, for he had devised none before; but he meant all the remaining interest in the lands after the legacies were deducted. Wherever it appears that the testator intended to devise all his interest in land, a fee simple passes." This rule applies with increased force to residuary clauses, in which a greater latitude of construction is allowed. Though the words lands and tenements are strictly descriptive of locality, yet, in connexion with other expressions, especially in a residuary clause, they may refer to the quantity of interest or estate. The words, in remainder or reversion, aid the construction. Though the testator might not have been acquainted with the precise technical distinction between them, yet he must have known they
a Lambert's lessee v. Paine, 3 Cranch's Rep. 97. Sargent v. Town, 10 Muss. Rep. 305. . .
b Lessee of Willis v. Bucker, 2 Binn. 464. Lambert's lessee v. Paine, 3 Cranch's Rep. 129. Hogan v. Jackson, Cowp. Rep. 299. Grayson v. Atkinson, 1 Wils. Rep. 333.
c Cooke v. Gerard, i Lev. Rep. 212. Ludcock v. Willows, Carther's Rep. 50. 2 Ventr. Rep 285. Wheeler v. Waldron, Allen's Rep. 28. Chester v. Chester, 3 P. Wms. 46. Strode v, Russel, 2 Vern. Rep. 621. Rooke v. Rooke, Ibid. 461.
1825. meant an estate in expectancy. The case of
Norton v. Ladd" is very analogous to the preWright
sent, and shows that a fee was intended.
If it be established, that the testator referred to his interest or estate in the farm in question in this clause, it carries all his interest i. e, a fee simple, because it is residuary, and the language is broad and comprehensive enough for the purpose.
Again; the proviso, “ provided she has no lawful issue,” shows an intention in the testator to give a fee to his wife. This is a condition precedent to take effect at the time of his death ; (1.) Because the terms used ordinarily import a condition precedent. Where there is nothing in the nature of the proviso, or in respect to the time of its performance, to show that a condition subsequent was intended, it is always construed a condition precedent. (2.) All the circumstances of the case show, that the testator intended the condition to take effect at his death, and to be precedent; for then the issue the devisee might have, would be his own child and heir. If it be contended, that this proviso refers to children the devisee might have by a future husband, the testator is made guilty of the absurdity of intending, that if his wife should marry again, she might retain the land, but if she should haye issue by such marriage, she should forfeit it. The devise to the wife in this case, was intended to be a substitute for the descent to the
a Lutu. Rep. 755,
heir. Whenever a devise of land is intended as 1825. a substitute for a fee, the substituted devise is a'
Wright fee.“ A Court may discover, in a condition, the effect of which is, in a certain event, to defeat the estate, an intent, when the estate actually vests, to enlarge the disposition to a fee. Thus, as before shown, a devise may be enlarged to an estate tail by the terms of a condition: 1:
But, to leave no doubt of his intention, the testator, in the next sentence, gives the devisée his land, “ to be by her freely possessed and enjoyed.” He drops the peculiar phraseology of the former clause, and takes up new language, manifestly for the purpose of enlarging the subject of his bounty. A life estate is susceptible only of a partial and limited enjoyment. The words “ freely to be enjoyed,” have been held sufficient to carry a fee. The idea, that these words, as used in the present case, give a life estate dispunishable for waste, is wholly inadmissible. It would be creating a state of things which would make the interest of the tenant at variance with the permanent improvement of the soil, and, consequently, of the best interests of the country. It would be his interest to commit waste, and to destroy the property. The testator could not have meant that the devisee should hold the lands
a Moore v. Heaseman, Willes' Rep. 152. Green v. Armistead, Hob. 65. Ibbetson v. Beckwith, Cas. temp. Talb. 157. tis
6 Chapman's case, Dyer, 333. King v. Rumbal, Cro. Jag 448.
c Loveacre v. Blight, Cowp. 352. Willis v. Bucker, 2 Binn: Rep. 464. . .