1. It is an established rule of the common law that a devise of
lands without words of limitation confers an estate for life
only.
2. But because this rule generally defeated the intention of the
testator, the Courts have been astute in finding exceptions to
it.
3. Where land is devised without legal words of limitation, and
a provision is added that the devisee may do therewith as he
pleases, a fee is presumed to have been intended.
4. It is also well settled that where a devisee whose estate is
not defined is directed to pay debts, legacies, or a sum in gross,
he takes a fee.
5. This last rule, though founded on inference, is as technical
and rigid in its application as that to which it is an exception,
for courts will not inquire into the relative value of the land and
the charge nor decide on the probability of the devisee being
called on to pay the charge.
6. Where a testator gives one piece of land to his son with the
privilege of doing therewith as he pleases, and makes another
devise to the same son, without using those or any similar words,
it does not follow that there was no actual intent to give a fee in
the last-mentioned land.
7. A court may look beyond the face of the will to explain an
ambiguity as to the person or property to which it applies, but
never for the purpose of enlarging or diminishing the estate
devised.
This case came up on a writ of error to the Circuit Court for
the Southern District of New York. It was an ejectment for certain
lots now within the limits of the city and formerly part of the
estate of Lawrence Benson, deceased.
Lawrence Benson, at the time of his death, had two tracts of
land, which he held in fee, one occupied by himself and one by
George Williams. He had one son and two grand-daughters, the
children of a deceased daughter. He died in 1822, having
Page 67 U. S. 409
made the will copied in the opinion of the Court, by which he
gave the Williams' place to his son Benjamin, "to do and dispose of
as he may think proper," and the homestead, without words of
limitation, charging the devisee with the payment of $1,500, to his
grand-children. The lots in controversy were part of the homestead.
The plaintiff, after the death of Benjamin Benson, claimed an
interest therein as one of the heirs-at-law of Lawrence Benson. The
defendant asserted his right under conveyances made by Benjamin
Benson in his lifetime. The question was whether the will gave
Benjamin a fee in the homestead or only a life estate.
On the trial before the circuit court, the plaintiff offered
evidence to show that the Williams' place, at the date of the will
and ever afterwards, was worth greatly more than the sum charged
upon the devisee in favor of the testator's grandchildren. This
evidence was rejected, and Mr. Justice Nelson held that, by the
legal and true construction of the will, Benjamin Benson took a fee
in both places. Whereupon the plaintiff sued out this writ of
error.
Page 67 U. S. 414
MR. JUSTICE GRIER.
It has been an established rule in the construction of wills
that a devise of lands, without words of limitation confers on the
devisee an estate for life only. This rule was founded rather on
policy than on reason, for while it favored the heir-at-law, it
generally defeated the intention of the testator. This is
acknowledged by Lord Mansfield in
Loveacre v. Blight,
Cowper, and the interference of modern legislation to abolish the
rule and establish a contrary one is evidence of the correctness of
his remark. This change has been effected by statute in England and
most if not all of the states of this Union.
The will now presented for our consideration was made before
this obnoxious rule was repealed in New York, and we are compelled
to examine its provisions fettered by this technical, artificial,
and now nearly obsolete rule of construction. Courts have always
been astute in searching for some equivalent
Page 67 U. S. 415
popular phrase or some provision of the will incompatible with
such imputed intention to rescue it from the effect of this rule.
Thus, when a testator devises land without legal words of
limitation, but adds that the devisee "may sell or do therewith as
he pleases," he is presumed to have intended to give a fee, because
such a power would be incompatible with a less estate. It is a long
settled rule also that where a devisee whose estate is undefined is
directed to pay the testator's debts or legacies or a specific sum
in gross, he takes an estate in fee. The reason on which this rule
is founded is that if the devisee took a less estate, he might be
damnified by the determination of his interest before reimbursement
of his expenditure. This rule, though founded on inference or
implication, is nevertheless as technical and rigid in its
application as that to which it is an exception, for the court will
not inquire into the relative value of the land and the charge, or,
if the charge be contingent, will not weigh probabilities as to
whether the devisee will ever be called on to pay it. The intention
of the testator as to the limitations of an estate devised can be
judged and decided only from his own language as contained within
the "four corners" of his will. Parol evidence cannot be received
to show that such inference was not founded on probability, or that
this rule of construction ought not to apply under certain
circumstances. This would in effect be delivering the power and
duty of construing the will to a jury.
The will of Lawrence Benson is very brief and is as follows:
"
In the first place, I give and bequeath unto my son,
Benjamin L. Benson, all that estate now occupied by George
Williams, to do and dispose of as he may think proper."
"I also give and bequeath unto my son, Benjamin L. Benson, the
homestead where I now live, situated on Harlem River."
"
Secondly. My will and intention is that my son,
Benjamin L. Benson, do give unto my grandchildren, after the
decease of my wife, the sum of $1,500."
"
Thirdly. The income of these legacies, and also of my
estate, real and personal, I give unto my loving wife, Maria
Benson,
Page 67 U. S. 416
during her widowhood, to do and dispose of as she may think
proper."
It is plain that this instrument has been written by a person
"inops concilii" and wholly ignorant of proper legal
phraseology.
He uses the term "bequeath" instead of
"devise" in the
gift of his real estate.
By the first clause, he gives his two pieces of real estate to
his son Benjamin, who appears to be the chief object of his
bounty.
By the second, he charges the sum of $1,500 on Benjamin to be
paid to the grandchildren of testator.
By the third, he gives to his wife a life estate on all of his
estate, real and personal, to be forfeited if she marry again.
Now we must observe
1st. That the son has clearly but an estate in remainder in the
lands devised to him.
2d. That it is a vested remainder.
3d. That this testator not only postpones the possession and
enjoyment of the land devised to his son for an indefinite time,
but charges him with the payment of a gross sum of money, which he
will be personally liable to pay, for land which he may never
personally possess or enjoy.
If the charge is sufficient in law to give the devisee an estate
in fee by implication or presumption, how much stronger is this
presumption when his enjoyment of it is indefinitely postponed.
But it is contended that because the testator has used the
phrase
"to do and dispose of as he may think proper" as
regards the Williams' farm, and in the devise of the homestead has
omitted it, such omission as to the latter is equivalent to an
express limitation of it to the life of the devisee, and that the
court ought to presume that the sum to be paid was intended as a
consideration for the first only, and if they will not presume it
for want of evidence of its sufficiency, that parol evidence ought
to be admitted to show the value of the Williams' property to have
been more than sufficient to pay the sum plainly charged on
both.
Now there is no established rule of construction that if a
Page 67 U. S. 417
testator, having devised two messuages to his son and charged
the devisee with the payment of legacies, that if he add this
informal power as to one, it is equivalent to an expressed
limitation as to the other. Nor is it a necessary inference or
logical conclusion arising from the omission to use certain
informal words, which have been construed to show an intention to
give a fee as to one, that the testator did not intend to give a
fee in the other of the messuages charged. Besides, it is clear
that Benjamin could not repudiate his obligation to pay the
legacies by refusing to accept the gift of the Williams' farm,
while he retained that of the homestead. To conclude, therefore,
from this fact that the testator did not intend to give a fee in
both would be mere conjecture, and that with no sufficient reason
to support it.
The face of this will shows that the testator did not suppose
these informal words, giving a power to sell as to one, were
necessary to enlarge the estate to a fee, much less that their
omission would limit the devise of the other to a life estate, for
he adds the same power to the life estate given to his wife.
If we were to indulge in conjecture why this phrase was coupled
with one of the estates devised and not with the other, it would be
that the testator intended to confine the charge of the legacies to
the "homestead," and not the Williams' farm, or that he wished the
one to remain in the family and name, while the son should be at
full liberty to dispose of the other as he might think proper.
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 former rule, which itself so often
defeated the intention of the testator.
Courts have always been astute, as we have said, to find reasons
for rescuing a will from the artificial rule established in favor
of the heir-at-law, and will not even be acute in searching for
reasons to restore its force, where the statute has not abolished
it. We are not compelled to make this inference or implication
through submission to any established rule of construction; on the
contrary, we are required to make an exception to one on
Page 67 U. S. 418
mere conjecture, and to introduce parol testimony as to value to
justify a departure from it. A court may look beyond the face of
the will where there is an ambiguity as to the person or property
to which it is applicable, but no case can be found where such
testimony has been introduced to enlarge or diminish the estate
devised.
We are of opinion, therefore, that Benjamin L. Benson took an
estate in fee in both the messuages described in the will.
The judgment of the circuit court is therefore affirmed with
costs.
