1825. tion exists between the cases, than that here are no introductory words, (sometimes so important,) yet the Court held that the fee did not pass.

Wright

V.

Denn.

The only other ground on which it can be presumed that the testator intended a fee, is the circumstance that this devise is after certain legacies; and it is said, that "all the rest," &c. means, that the devisee was to take the real estate subject to the payment of these legacies. Admitting, that wherever the testator employs language of an indefinite kind, prescribing no limits to the estate devised, and burthens the devisee with a gross, but certain charge, that the fee will pass, that rule of construction is inapplicable here, because, (1.) There is no disposition of the personal estate, the appropriate fund for the payment of legacies. (2.) There is, at most, only an implied charge upon the real estate; and it seems unreasonable to require the Court to imply a charge, for no other purpose than to furnish a ground for raising another implication still more serious.

Admitting the verbal construction of the opposite counsel to be correct, the case of Jackson v. Harris is decisive against the conclusion they would infer from it. If a charge at all, it is a contingent charge. The personal property is applicable in the first instance, and there is only a possibility that it will prove insufficient. A contingent charge is not sufficient to carry a fee. Besides, supposing the whole of these legacies

a 8 Johns. Rep. 141.

v.

Denn

to be payable out of the real estate, the conclu- 1825. sion contended for would not result. The rule Wright of law is, that where the charge is upon the estate, and not upon the person of the devisee in respect of the estate, no fee passes by implication." So much of the estate as is sufficient to raise the sum required, is not given to the devisee at all. The residue is devised perfectly unfettered. Canning v. Canning, Den v. Moore, and Den v. Allen, were all cases in which the real estate was given after payment of debts, &c. and yet held not a fee.

Mr. Justice STORY delivered the opinion of the March 4thCourt, and, after stating the case, proceeded as follows:

The principal question arising in this case is, what estate Mary, the wife of James Page, took under his will; whether an estate for life, or in fee. If the former, then the judgment of the Circuit Court is to be affirmed; if the latter, then it is to be reversed.

John P., the

no aid in the

the will of

Some reliance has been placed upon the will, The will of of John Page, the father, to show the predica- father, affords ment of the land in the possession of his son construction of James, and thence to draw aid in the construc- James P. tion of the will of the latter. Without doubt, James took a fee in the moiety devised to him by his father, (which includes the land in controversy,) for it is given " to him, his heirs and as

a Jackson v. Ball, 10 Johns. Rep. 148. Den v. Allen, 8 Term Rep. 497. Merson v. Blackmore, 2 Atk. 341.

Wright

V.

Denn.

1825. signs." But, it is argued, that the land came into his hands charged with the legacies payable to his sisters Hannah and Abigail, and as these legacies were not payable until they came of age, they remained a charge upon the land in the hands of James at his death. Whether the sisters were of age at his death or not, or had received their legacies or not, does not appear from the statement of facts, and nothing can be presumed To make a either way. But what is there to show that legacy chargeable upon land these legacies were a charge on the land? The

devised, there

must be ex-direction in the will is, that "James do pay

press words,

he terms

the will.

or a fair in Hannah and Abigail the said sum of 50 pounds plication from each when they come of age;" but it is not said or implied any where in the will, that these legacies shall be a charge on the land. The direction is personal, and must be a charge on the person only, unless it can be shown, from other parts of the will, that the testator intended a charge on the land. A testator may devise lands with a view to legacies, and make them a charge on the land, or on the person of the devisee, or on both; and whether a particular legacy be in either predicament, must depend upon the language of the will. In the large class of cases which have been decided on this subject, and which has principally arisen from questions respecting the quantity of the estate taken by the devisee, the ground assumed has been, that the will must speak expressly, or by fair implication,

a See Roe, ex dem. Peter, v. Day, 3 M. & S. 518. 5 East's Rep. 87. 4 East's Rep. 495.

that the testator intends the legacies to be a charge on the land. When, therefore, the testator orders legacies to be paid out of his lands, or where, subject to legacies, or after payment of legacies, he devises his lands, Courts have held the land charged with the legacies upon the manifest intention of the testator. But here there is no such language. There is no direction that the devisee shall pay the legacies out of the land. The charge is personal; and the case falls directly within the authority of Reeves v. Gower, in 11 Mod. Rep. 208.

We may, then, proceed to the consideration of the will of James Page, inasmuch as that of his father affords no light to guide us in the construction. The grounds mainly relied on to establish that Mary, the wife of the testator, took a fee, are, that the legacies given to his sisters are a charge on his real estate in the hands of his widow; that all the rest of his "lands and tenements," in possession, reversion, or remainder, are given; that the devise is subject to the proviso," that she has no lawful issue," which is not a condition merely, but a substitution for an estate intended for his children; and, finally, that the lands, &c. are devised to her "freely to be possessed and enjoyed," which words are best satisfied upon the supposition of a fee.

1825.

Wright

V.

Denn.

as to what

ry a fee.

Before proceeding to the particular examina General rule tion of the legal effect of these different clauses words will carin the will, it is necessary to state that, where there are no words of limitation to a devise, the general rule of law is, that the devisee takes an

1825.

Wright

V.

Denn.

We

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. say a plain intention, because, if it be doubtful or conjectural upon the terms of the will, or if full legal effect can be given to the language without such an estate, the general rule prevails. It is not sufficient that the Court may entertain a private belief that the testator intended a fee; it must see that he has expressed that intention with reasonable certainty on the face of his will. For the law will not suffer the heir to be disinherited upon conjecture. He is favoured by its policy; and though the testator may disinherit him, yet the law will execute that intention only when it is put in a clear and unambiguous shape. In the present case, there is no introductory showing an in-clause in the will, expressing an intention to dispose of the pose of the whole of the testator's estate. Nor is it admitted, that such a clause, if it were initself serted, would so far attach itself to a subsequent a subse-devising clause, as per se to enlarge the latter to clause, so as a fee, where the words would not ordinarily latter to a fee. import it. Such a doctrine would be repugnant

An introductory clause,

tention to dis

whole of the

testator's estate, will not

attach

to

quent devising

to enlarge the

to the modern as well as ancient authorities. The cases of Frogmorton v. Wright, (2 W. Bl. 889.) Right v. Sidebottom, (Dougl. 759.) Child v. Wright, (8 D. & E. 64.) Denn v. Gaskin, (Cowper, 657) Doe . Allem, (8 . & E. 497) and Merson v. Blackmore, (2 Atk. 341.) are full to the point. The most that can be said is, that where the words of the devise admit of passing a greater interest than for life, Courts will lay