Wright v. Denn
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23 U.S. 204 (1825)
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U.S. Supreme Court
Wright v. Denn, 23 U.S. 10 Wheat. 204 204 (1825)
Wright v. Denn
23 U.S. (10 Wheat.) 204
J.P., by his last will, after certain pecuniary legacies, devised as follows:
"Item. I give and bequeath unto my loving wife M. all the rest of my lands and tenements whatsoever whereof I shall die seized in possession, reversion, or remainder, provided she has no lawful issue."
"Item. I give and bequeath unto M., my beloved wife, whom I likewise constitute, make, and ordain my sole executrix of this my last will and testament, all and singular my lands, messuages, and tenements, by her freely to be possessed and enjoyed, . . . and I make my loving friend H.J. executor of this my will, to take care and see the same performed according to my true intent and meaning,"
&c. The testator died seized without issue, and after the death of the testator, his wife M. married one G.W., by whom she had lawful issue. Held that she took an estate for life only, under the will of her husband, J.P.
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 to give a larger estate.
To make a pecuniary legacy a charge upon lands devised, there must be express words or a plain implication from the words of the will.
General rule as to what words will carry a fee.
An introductory clause showing an intention to dispose of the whole of the testator's estate will not attach itself to a subsequent devising clause so as to enlarge the latter to a fee.
A charge upon lands cannot be created by implication unless the implication is plain.
Effect of the words, "in possession, reversion, or remainder," &c.
Where words are used by a testator which are insensible in the place where they occur or their ordinary meaning is deserted and no other is furnished by the will, they must be entirely disregarded.
The word "tenements" does not carry a fee independent of other circumstances.
This was an action of ejectment brought in the court below. The sole question arising upon the state of facts in the cause was upon the construction of the will of James Page, made on 15 February, 1774. By that will, after the usual introductory clause, the testator proceeds as follows:
"Item. I give and bequeath unto my beloved sister, Rebecca, 100 pounds, proclamation money, to be paid in four years after my decease."
"Item. I give and bequeath unto my beloved sister Hannah the sum of 50 pounds proclamation money, to be paid when she is of age."
"Item. I give and bequeath unto my sister Abigail the like sum of 50 pounds, proclamation money, to be paid when she arrives at age."
"Item. I give and bequeath unto my loving wife Mary all the rest of my lands and tenements whatsoever whereof I shall die seized in possession, reversion, or remainder, provided she has no lawful issue."
"Item. I give and bequeath unto Mary, my beloved wife, whom I likewise constitute, make, and ordain, my sole executrix of this my last will and testament, all and singular my lands, messuages, and tenements, by her freely to be possessed and enjoyed, and I do hereby utterly disallow, revoke, and disannul all and every other former testaments, wills, legacies, and bequests by me in any ways before named, willed, and bequeathed, ratifying and confirming this and no other to be my last will and testament. And I make
my loving friend, Henry Jeans, of the county and province aforesaid mentioned, executor of this my will, to take care and see the same performed according to my true intent and meaning, and for his pains, [leaving the sentence incomplete]. In witness whereof,"
&c., (in the common form of attestation). The testator was seized of the land in controversy at the time of the will, and died seized, without issue, on 10 October, 1774, leaving his wife Mary, the devisee, who afterwards married one George Williamson, by whom she had lawful issue still living, and died in the year 1811. The lessor of the plaintiff is the brother of the testator and his only heir at law. The defendant claims title to the premises as a purchaser under Mary, the wife of the testator.
The title of the testator to the premises was derived from a devise in the will of his father, John Page, dated 11 November, 1773. That will, among other things, contained the following clause:
"Item. I give and devise unto my son James one equal half part of my land, [comprising the land in controversy], with all my plantation, utensils, &c., to him, his heirs and assigns forever."
He then gives the other moiety of the land to his son John, to him, his heirs and assigns. He then bequeaths several legacies to his daughters, Sarah and Mary, and adds,
"Item. I give and bequeath to my three daughters, Rebecca, Hannah, and Abigail, Rebecca the sum of 50 pounds, Hannah and Abigail the sum of 50 pounds each of them. Likewise
it is my will that my son James to pay Hannah and Abigail the said sum of fifty pounds each when they come of age."
He then concludes his will by appointing an executor and revoking all former wills, &c., and died soon afterwards. James (the son) left no other real estate than that devised to him by this will. What personal estate he or his father left at the times of their decease was not found in the case, and therefore it did not appear whether or not it was sufficient to pay the legacies in their wills.
The court below gave judgment for the lessor of the plaintiff, who was the heir at law of the testator, and the cause was brought by writ of error to this Court.