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1825. as tenant for life, dispunishable for waste merely, Wright

for that would only exempt the property devised

from one kind of restriction, when he manifestly Denn.

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.

1825.

Wright

V

Denn.

fee, words of inheritance, as “ heirs," must be 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 in tention 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 BI. Rep. 839. 2 Bos. & Pull. 247. Dougl. 736. Cowp. 235. 01 Cowp. 355. 3 T. R. 359.5 Bos. & Pull. 349.

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1825. and vest the inheritance in a stranger, it is incum

bent upon him to establish one or the other of Wright

these two propositions : Denn.

1. That there are express words creating an estate in fee in the devisee, (which is not pretended, and which, if actually existing, would preclude all argument,) or,

2. An intent, so clearly expressed as to require, by necessary implication, that such an estate should pass.

The circumstance, that no words exist in this will, which, by their intrinsic force, carry any larger estate than for life, raises a legal presumption, that no larger interest was intended to pass. If the testator had designed the heirs or issue of his wife as the objects of his bounty, some language indicating such an intention would have been used. If, in addition to this negative circumstance, we find that these persons in that capacity were present to the mind of the testator, and yet are not made objects of his bounty, it superadds a positive weight to the legal presumption that they were not designed to be so, and that their omission was not merely accidental.

There being, then, no express words carrying the fee, let us examine those particular expressions which are relied upon to show the actual intent that the fee should pass. These words are, (1.) “ All the rest of my lands and tenements;" 2.) The words “reversion or remainder;" (3.) The words “ freely to be possessed and enjoyed.”

1. As to the words, “ all the rest of my lands

1825.

Wright,

v.

Denn,

and tenements.” One of the earliest cases in which the effect of similar words came under consideration, was that of Wilkinson v. Maryland. There, A, being seised of divers lands in A., B. and C., the lands in C. being in him by mortgage forfeited, devised the lands in A. and B. to several persons, and then devised “ all the rest of the goods, chattels, leases, estates, and mortgages, whereof he was possessed,” to his wife, after his debts and legacies paid, made his wife executrix, and died. The question was, whether the fee passed to the wife by this devise ; and it was held, that an estate for life only passed. In that case, there were several circumstances rendering it stronger in favour of a fee than the present. (1.) There was a previous clause devising part of the property, and there was, therefore, an antecedent to which the word rest could relate. Here there is no such prior clause, and the word rest is senseless, or the testator attaches to it his own peculiar signification. (2.) The devise of the real property is there in the same clause which contains a bequest of the personalty; and, therefore, the inference as to the testator's intention was irresistible, that he designed to give the same interest, i. e. an absolute interest, in all the subjects of the devise. (3.) In the case cited, the word estate is employed as the descriptive term, which is a word frequently held sufficient of itself, proprio vigore, to carry a fee.

se

o Cro. Car. 447. 323,

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The case of Canning v. Canning," is very similar to the present. There the words of the will were, “ All the rest, residue, and remainder, of my messuages, lands, or hereditaments, &c. after my just debts, legacies, and funeral expenses first paid, I give to my executors in trust for my daughters.” It was adjudged, that the executors took only an estate for life; and, notwithstanding the general character of Mosely, as an inaccurate reporter, this case has been frequently recognised as law. This is evidently a much stronger case than the one now before the Court. (1.) It is properly a residuary devise; this is not. (2.) It contained the term hereditaments, emphatically embracing the inheritance, according to the opinion of many eminent lawyers.. (3.) The estate was devised “ after debts, legacies, and funeral expenses first paid.” Yet, under all these circumstances, it was held, that the words “rest, residue, and remainder of my messuages, lands, or hereditaments," so much stronger and more comprehensive that those of the present testator, were merely descriptive. The ground of that determination was, that the words rest, residue, and remainder, being unaccompanied by any words of limitation, could not operate on the inheritance. This applies, with at least equal force, to the present case. In Peiton v. Banks, where one devised to his wife for life, and the

a Mosely, 240.
6 2 Bos. & Pull. 251.
c 2 Bos. & Pull. 251. Per Macdonald, C. B.
di Vern. Rep. 65.

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