These lands were already charged in the hands of the testator with the payment of other legacies, by the will of his father, John P., and which 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 Mass. 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, 1 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.

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meant an estate in expectancy. The case of Norton v. Ladd is very analogous to the present, 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 have 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 Lutw. Rep. 755,

heir. Whenever a devise of land is intended as

a substitute for a fee, the substituted devise is a 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."

But, to leave no doubt of his intention, the testator, in the next sentence, gives the devisee 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

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a Moore ▼. Heaseman, Willes' Rep. 152. Green v. Armstead, Hob. 65. Ibbetson v. Beckwith, Cas. temp. Talb. 157. · b Chapman's case, Dyer, 333. King v. Rumbal, Cro. Jac 448.

c Loveacre v. Blight, Cowp. 352. Rep. 464.

Willis v. Bucker, 2 Binn

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as tenant for life, dispunishable for waste merely; for that would only exempt the property devised from one kind of restriction, when he manifestly contemplates a free enjoyment generally, without any restriction whatever. The free enjoyment is not annexed to the estate devised, but to the land. It is the land which is to be freely enjoyed. The estate is only the technical medium through which that free enjoyment is secured, and the Court will see that the devisee takes such an estate as is compatible with a free enjoyment.

But, even supposing these different clauses, taken separately, should be deemed inadequate to pass a fee, yet, taken conjointly, they form a body of evidence, strong and conclusive, to show that the testator intended to devise his entire interest in the lands. It is impossible to suppose that a plain man would have used such phraseology merely to give his farm to his wife for her life. All the clauses may be taken together, and receive their full, combined effect. Juncta valent."

Mr. Webster and Mr. Cox, contra, contended, that under the will of James P., nothing more passed to the devisee than an estate for life. The plaintiff below claimed as heir at law. The title was, prima facie, in him. It was admitted on all hands, that the devise contains no words of limitation sufficient to pass the inheritance. It is a general rule, that in order to create an estate in

a Frogmorton v. Holliday, 1 H. Bl. 540.

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fee, words of inheritance, as "heirs," must be 1825. employed. Wherever an estate is granted, either specifically for the life of the grantee, or without any limitation, the legal presumption is, that the design was to create an estate for life only. In wills a greater latitude has been allowed. The intention of the testator, expressed in clear, unambiguous terms, will carry the fee. But the rules of conveyance at common law still operate, although not so rigorously, even in regard to wills; and, before the heir can be disinherited, there must be, not merely an intention, but an intention legally perceptible, in an instrument legally executed. The only difference between wills and deeds is, that in the latter, certain specific technical terms are essential; in the other, any words legally indicating the clear intention of the testator, are sufficient.

The intent must be clearly expressed, for it is a fundamental rule in the construction of wills, that the heir cannot be disinherited without express words, or necessary implication. This intention must also be expressed in language at least quasi technical; for it is perfectly immaterial how plain it may be, that the design of the testator was to pass a larger estate, unless that intention be manifest to the legal eye.'

As the construction now contended for by the plaintiff in error would disinherit the heir at law,

a Cro. Car. 368. 2 Bl. Rep. 839. 2 Bos. & Pull. 247. Dougl. 736. Cowp. 235.

b 1 Cowp. 355. 3 T. R. 359. 5 Bos. & Pull. 349.