The policy of the law in favor of the heir yields to the
intention of the testator if clearly expressed or manifested. The
rule of law that a devise of lands without words of limitation or
description gives a life estate only does not apply, and devises
will be held to be of the fee where it is plain that the testator's
intention was to dispose of his whole estate equally between his
heirs, and there is no residuary clause indicating that he intended
passing less than all of his estate, and all of his heirs at law
are devisees under the will.
Page 196 U. S. 564
The question involved in this case is the construction of the
will of Hugh McCaffrey, deceased. It was duly admitted to probate,
and recorded in the Supreme Court of the District. It is as
follows:
"Washington, District of Columbia"
"
April Thirtieth, 1896"
"In the name of God, being now in good health and sound in mind
and body, I hereby certify and declare this to be my last will and
testament, hereby annulling and revoking any and all wills
previously made."
"I give and bequeath to my daughter Mary A. Quigley house number
301 at southwest corner of 11th and C Streets Southeast, being in
lot number 5 in square 970, with the store and dwelling, stock and
fixtures, and lot on which it stands, also houses numbers 13 and 15
6th Street Southeast with lots on which they stand, being parts of
lots 19 and 20 in square 841, also any money in bank to my account
at the time of my death, also any money due to me, also any
building association stock. She is to pay funeral expenses and any
other legal debts I may own, also to care for my lot in Mount
Olivet Cemetery."
"I give and bequeath to my son, James B. McCaffrey, house number
six hundred and two (602) East Capitol Street and lot on which it
stands, being in lot number ten (10) in square number eight hundred
and sixty-eight (868)."
"To my son, William H. McCaffrey, I give and bequeath house 604
East Capitol Street, being in lot number ten (10), in square number
eight hundred and sixty-eight (868) and lot on which it
stands."
"To my daughter, Lizzie Manogue, I give and bequeath house
number fourteen hundred and twenty-three (1423) Corcoran Street,
N.W., and lot on which it stands, being lot number fifty-four (54)
in square number two hundred and eight (208)."
"2. To my son, Francis T. McCaffrey, I give and bequeath house
five hundred and nineteen (519) East Capitol Street, and
Page 196 U. S. 565
lot on which it stands, being part of lot number(20) in square
eight hundred and forty-one (841), also my horse and buggy."
"And to my grandson, Frank Foley, I give and bequeath house
number one hundred and twenty-one (121) Eleventh Street, S.E.,
being in lot number fourteen(14), square number nine hundred and
sixty-eight (968), and lot on which it stands."
"To my grandson Joseph Quigley, I give and bequeath my watch and
chain."
"I hereby name and appoint as executors of this my last will and
testament, John E. Herrell and Patrick Maloney."
"All the real estate herein described is located in the City of
Washington, District of Columbia."
"Hugh McCaffrey. [Seal.]"
The devisees in the will were the only heirs of the
testator.
On the tenth of July, 1897, Mary A. Quigley died, leaving
surviving four children, the appellants Catherine L., Margaret,
Mary, and Joseph Quigley. Edward Quigley, her husband, also an
appellant, survived her. She left a will, which was duly admitted
to record, by which she devised all her estate to Catherine L. and
Edward Quigley, in trust for her children. Francis T. McCaffrey,
son of Hugh, and one of the devisees in the latter's will, died
October 20, 1898, leaving as heirs at law his brothers and sisters,
the children of his deceased sister, Mary A. Quigley, and his
nephew, Frank Foley. He left a will, by which he devised and
bequeathed all of the property to his sister, Lizzie C. Manogue,
and his brothers William A. and James B. McCaffrey, "absolutely and
in fee simple, according to the nature of the property, as tenants
in common, but not as joint tenants." At the time of his death, he
was seized and possessed of the real estate devised to him by his
father.
James B. McCaffrey has sold and conveyed the lot devised to him
to the respondent George W. Manogue. Upon an attempt to sell the
property devised by Francis T. McCaffrey, a doubt was raised as to
the extent of the interest devised to him
Page 196 U. S. 566
and the other devisees by the will of H. McCaffrey -- whether an
estate for life or in fee simple. This suit was brought
"to have it determined what estate each of the said devisees
took thereby, and to have their title quieted as against any person
or persons who may claim adversely to the same as heirs of said
Hugh McCaffrey, or under such heirs."
It was decreed by the trial court that only life estates were
devised by the will, and the decree was affirmed by the Court of
Appeals. 22 App.D.C. 385.
Page 196 U. S. 568
MR. JUSTICE McKENNA, after stating the case, delivered the
opinion of the Court.
It will be observed that the devises are expressed in exactly
the same way. To Mary A. Quigley, however, there are given several
pieces of real estate, the money of the testator in bank, and his
building association stock. She is charged with the payment of the
testator's funeral expenses and debts; also with the care of his
cemetery lot. Nevertheless, neither of the lower courts
distinguished between the devisees -- to all was applied the rule
of law that a devise of land, without words of limitation or
description, gives a life estate only. The Court of Appeals held
that the charge or burden upon Mary A. Quigley to pay the funeral
expenses and debts of the testator was offset by the gift to her of
personal property. It is insisted that the ruling is contrary to
the decision in
King v.
Ackerman, 2 Black 408. It is there said: "The rule
of law which gives a fee where the devisee is charged with a sum of
money is a technical dominant rule, and intended to defeat the
effect" of the artificial rule established in favor of the heir at
law, that an indefinite devise of land passes nothing but a life
estate. It was, however, apparent to the Court of Appeals that to
follow
King v. Ackerman would not execute the intention of
the testator by opposing one technical rule by another, but would
discriminate between his heirs, and destroy the equality between
them which it was the purpose of the will to create. To effect this
equality the court selected not the "dominant rule," whose virtue
this Court pointed out, but the other, regarding it the most
commanding. It is altogether a strange tangle of technicalities.
Apply either of them or both
Page 196 U. S. 569
of them, and we defeat the intention of the testator. Are we
reduced to this dilemma? We think not; nor need we dispute the full
strength of the rule in favor of the heir at law. It is not an
unyielding declaration of law. It cannot be applied when the
intention of the testator is made plain. It cannot be applied when
the purpose of the testator, as seen in the will, cannot be carried
out by a devise of a less estate than the fee.
Bell County v.
Alexander, 22 Tex. 350. The policy of the law in favor of the
heir yields, we repeat, to the intention of a testator if clearly
expressed or manifested. That policy, the reason for it and the
elements of it, is expressed strongly by Mr. Justice Story in
Wright v.
Denn, 10 Wheat. 204,
23 U. S.
227-228:
"Where there are no words of limitation to a devise, the general
rule of law is that the devisee takes an estate for life only,
unless, from the language there used or from other parts of the
will, there is 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 favored 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."
(Italics ours.)
We think the intention of McCaffrey is "put in a clear and
unambiguous shape." He intended to dispose of his whole estate. It
is true there is no introductory clause expressing such intention,
but there is no residuary clause indicating that he intended to
pass less than all of his estate. And all of his heirs at law were
his devisees. In other words, the very heirs for whom the rule is
invoked are those among whom he distributed his property, and
surely he intended a
Page 196 U. S. 570
complete distribution -- to vest in each the largest interest he
could give, not assigning life estates with residuary fees to the
very persons to whom such life estates were devised. In other
words, making each heir the successor of the other and of himself.
It was evident to the Court of Appeals -- it is evident to us --
that he intended to make his heirs equal. Of this purpose the
charge upon his daughter, Mary A. Quigley, is dominantly
significant, not only in effect, but in its expression. She is
given a greater quantity of real estate than the other devisees.
She is given personal property besides; "but," declared the
testator, "she is to pay funeral expenses and other legal debts I
may owe, also to care for my lot in Mount Olivet Cemetery." That
charge was not intended to enlarge the quantity of interest in the
real estate devised in the sense contended for, but to make an
equality between her and the other heirs and devisees, and, we
repeat, that was his especial purpose. In other words, he gave her
more property, not a larger interest in it. The devise to his
grandson, Frank Foley, shows how carefully the testator regarded
his heirs. Surely, as he regarded that grandchild as inheriting the
rights which his mother might have inherited, he did not intend a
disposition of his property which precluded his other grandchildren
of inheriting through their parents. And this will be the result if
the appellees are right. No devisee possesses an estate which can
be devised to or inherited by his or her children.
Against the effect of the heirs at law of the testator being
also his devisees, it may be said that it has been held that,
though a testator has given a nominal legacy to his heir, or
declared an intention to wholly disinherit him, the inflexibility
of the rule in favor of the heir has been enforced.
Frogmorton
v. Wright, 2 W.Bl. 889;
Roe ex dem. Callow v. Bolton,
2 W.Bl. 1045;
Right v. Sidebotham, 2 Douglas 59; Roe ex
dem. Peter v. Daw, 3 M. & Sel. 518.
In
Right v. Sidebotham, Lord Mansfield felt himself
constrained to enforce the rule, but he observed in protest:
"I
Page 196 U. S. 571
verily believe that, in almost every case where by law a general
devise of lands is reduced to an estate for life, the intent of the
testator is thwarted, for ordinary people do not distinguish
between real and personal property. The rule of law, however, is
established and certain, that express words of limitation or words
tantamount are necessary to pass an estate of inheritance."
And he hence concluded that words tending to disinherit the heir
at law, unless the estate is given to some one else were not
sufficient to prevent the heir from taking.
Lord Ellenborough, in
Roe v. Daw, followed the rule,
and declared also that he thereby probably defeated the intention
of the testator. It is a strange conclusion from the facts, and
needs the sanction of those great names to rescue it from even
stronger characterization. Lord Mansfield spoke in 1781, Lord
Ellenborough in 1815. We cannot believe, if called upon to
interpret a will made in 1896, when the rights of heirs are not so
insistent, and the rule in their favor lingers, where it lingers at
all, almost an anachronism -- when ownership of real property is
usually in fee, and when men's thoughts and speech and dealings are
with the fee -- they would hold that the purpose of a testator to
disinherit his heirs could be translated into a remainder in fee
after a devise of a life estate to another.
But, perhaps, even the severe technicality of those cases need
not be questioned. In the construction of wills we are not required
to adhere rigidly to precedents. We said in
Abbott v.
Essex Co., 18 How. 202,
59 U. S.
213:
"If wills were always drawn by counsel learned in the law, it
would be highly proper that courts should rigidly adhere to
precedents, because every such instrument might justly be presumed
to have been drawn with reference to them. But in a country where,
from necessity or choice, every man acts as his own scrivener, his
will is subject to be perverted by the application of rules of
construction of which he was wholly ignorant."
To like effect is
Cook v. Holmes, 11 Mass. 528, where
the will passed on contained the following devise:
Page 196 U. S. 572
"
Item. To his grandson Gregory C., only child of his
son Daniel C., deceased, a certain piece of land in Watertown,
containing about 6 acres."
The will contained devises to other sons of pieces of real
estate, charging them with payment of certain legacies. The will
concluded as follows:
"The above-described legacies, together with what I have
heretofore done for my children and grandchildren, make them nearly
equal, and are their full portions of my estate."
The will therefore is similar to the will in the case at bar.
Equality between the devisees is as much the purpose of one as the
other, though it is expressed in one and deduced as an implication
in the other. Chief Justice Parker, in delivering the opinion of
the court said:
"The quality of the estate which Gregory C. took by the devise
must be determined by the words of the will, taken together, and
receiving a liberal construction, to effectuate the intention of
the testator as manifested in the will."
Further: "The words of the particular devise to Gregory,
considered by themselves, certainly give no inheritance." And
stating the rule of law to be, as contrasted with the popular
understanding,
"that such a devise, standing alone, without any aid in the
construction from other parts of the will, would amount only to an
estate for life in the devisee,"
added:
"But it is too well established and known to require argument or
authorities now to support the position that devises and legacies
in a will may receive a character, by construction and comparison
with other legacies and devises in the same will, different from
the literal and direct effect of the words made use of in such
devise [cases were cited in note], and this because the sole duty
of the court in giving a construction is to ascertain the real
intent and meaning of the testator, which can better be gathered by
adverting to the whole scope of the provisions made by him for the
objects of his bounty than by confining their attention to one
isolated paragraph, probably drawn up without a knowledge of
technical words, or without recollecting the advantage of using
them. "
Page 196 U. S. 573
The devise to Gregory C. was held to be of the fee.
From these views it follows that the decree of the Court of
Appeals must be, and it is, reversed, and the case is remanded to
that court with directions to reverse to decree of the Supreme
Court, and remand the case to that court, with directions to enter
a decree in accordance with this opinion.
MR. JUSTICE PECKHAM dissents.
