Wright V. Denn. 1825. all limitations, that is, the absolute property of the estate. He also thought the introductory clause not unimportant; and that the blank after my was intended to be filled with "heirs ;" and it can scarcely escape observation, that it was a case where the sons of the testator were the devisees. These considerations may well lead to a doubt, whether Lord Mansfield intended to lay down any general principle of construction in relation to the words, "freely to be enjoyed," &c. But, if he did, the subsequent case of Goodright v. Barron, (11 East's Rep. 220.) has manifestly interfered with its authority. In that case, there was an introductory clause, " as touching such worldly estate wherewith it hath pleased God to bless me," &c.; and the testator then proceeded as follows: "I give and bequeath to my brother T. D., a cottage house, and all belonging to it, to him, and his heirs, for ever, W. C. tenant. Also, I give and bequeath to my wife E., whom I likewise make my sole executrix, all and singular my lands, messuages, and tenements, by her freely to be possessed and enjoyed." The Court held, that the wife took an estate for life only; that the words, being ambiguous, did not pass a fee against the heir, but might mean free from encumbrances or charges, free from impeachment for waste; and that the introductory clause could not be brought down into the latter distinct clause to aid it, though, if joined, it might have had that effect. The Court distinguished that case from the case before Lord Mansfield, because, in the latter, as the testator had already Wright V. Denn. encumbered the estate, the words must have 1825. meant to pass a fee, or they would have no meaning at all. Mr. Justice Le Blanc added, that the words used were not inconsistent with a life estate only; and he distinguished between them and the words, "freely to be disposed of," admitting that the latter would pass a fee. So that, taking both these cases together, the fair deduction is, that the words, "freely to be possessed," &c. are too uncertain, of themselves, to raise a fee, but they may be aided by other circum stances. The case before us is far less strong than either of the foregoing cases, for there is no introductory clause, showing an intention to dispose of the whole property, as there was both in Goodright v. Barron, and Loveacres v. Blight ; nor is there any encumbrance created by the testator on the land, which was the decisive circumstance that governed the latter. Upon the whole, upon the most careful examination, we cannot find a sufficient warrant in the words of this will to pass a fee to the wife. The testator may have intended it, and probably did, but the intention cannot be extracted from his words with reasonable certainty; and we have no right to indulge ourselves in mere private conjectures. Judgment affirmed, with costs. 1825. United States V. Morris. [REMISSION OF FORFEITURE. PLEADING.] The UNITED STATES V. MORRIS, Marshal of the Southern District of New-York. The Secretary of the Treasury has authority, under the Remission Act of the 3d of March, 1797, c. 361. [lvii.] to remit a forfeiture or penalty accruing under the revenue laws, at any time, before or after a final sentence of condemnation or judgment for the penalty, until the money is actually paid over to the Collector for distribution. Such remission extends to the shares of the forfeiture or penalty to which the officers of the customs are entitled, as well as to the interest of the United States. In a plea of justification by the Marshal, for not levying an execution, setting forth a remission by the Secretary of the Treasury, of the forfeiture or penalty on which the judgment was obtained, it is not necessary to set forth the statement of facts upon which the remis sion was founded. ERROR to the Circuit Court for the Southern District of New-York. This was an action brought against the defendant, in the Court below, as Marshal of the Southern District of New-York, for a misfeasance in neglecting to proceed on a venditioni exponas issued out of the District Court of the United States for the District of Maine, requiring him to sell the goods and chattels of Andrew Ogden, Abraham K. Smedes, and Thomas C. Butler, which he had levied upon by virtue of certain executions issued against them, in favour of the United States, on a judgment recovered in the said District Court of Maine, and which goods and chattels remained in his hands for want of buyers, according to his return on said executions. The misconduct, or neglect of duty, alleged against the Marshal, was, that he did not sell the property so levied upon, according to the command of the writ, but delivered the same up to the defendants, discharged from the execution. The declaration stated the judgment to have been recovered in the September term of the Court, in the year 1817, for 22,361 dollars 75 cents, damages, and which, in part, to wit, in the sum of 11,180 dollars 87 cents, remained in full force, not reversed, paid off, or satisfied, to the plaintiffs, and that execution to that amount remains to be done. The venditioni exponas, as was alleged, was put into the hands of the Marshal on the 13th day of August, 1819. The pleadings in the cause show, that Andrew Ogden, of the city of New-York, in or about the month of June, in the year 1813, imported into Portland, in the District of Maine, certain goods and merchandise in the brig Hollen, which vessel, as well as the goods, belonged to him. These goods, together with the brig, were thereupon seized as forfeited to the United States, on the ground that the goods had been imported in that vessel, in violation of the non-intercourse acts, then in existence. The goods and vessel were libelled in the District Court of Maine, on the 6th of July, 1813, and on the 19th of the same month were delivered up to Andrew Ogden, after having been regularly appraised, upon his having executed, together with Abraham K. Smedes, and Thomas C. Butler, a bond for their appraised 1825. United States V. Morris. United States V. Morris. 1825. value. The vessel and goods were, afterwards, on the 27th of May, 1817, condemned as forfeited to the use of the United States. And such proceedings were thereupon had, that, in the following September term of the Court, a judgment was entered upon the bond of appraisement for 22,361 dollars 75 cents, with costs. The defendant, Morris, pleaded the general issue, and a special plea in justification, that the forfeitures had been remitted by the Secretary of the Treasury, setting out in hæc verba, two warrants of remission, which were duly served upon him before the return day of the venditioni exponas, and averring a compliance on the part of the defendants, with all the terms and conditions required by the warrants of remission. All which were duly set forth in the return on the venditioni exponas, before the commencement of the present suit. To this special plea, a replication was filed, stating, in substance, that at the time of the forfeiture, seizure, and condemnation, of the brig Hollen, and the goods imported in her; and, also, at the time of their condemnation, and the entering up of the judgment on the bond for their appraised value, and of the issuing of the several writs of execution, and at the time of the making and issuing the said warrants of remission, and of the service thereof on the defendant, &c. Isaac Ilsley, and James C. Jewett, were the collector and surveyor of the port of Portland, and, as such, entitled to one half of the said forfeiture; and that the said several executions |