A devise of "all the estate called Marrowbone, in the County of
Henry, containing by estimation 2,585 acres of land," carries the
fee.
This was an ejectment brought in the Circuit Court of the United
States for the Middle Circuit in the Virginia District in which
John Doe, a subject of the King of Great Britain residing without
the State of Virginia, lessee of John Lambert, another subject of
the King of Great Britain, complains of Richard Roe, a citizen of
Virginia, residing within the said state, and claims possession of
a messuage and tenement containing 156 acres of land in the County
of Henry, being part of a tract of land called Marrowbone.
The jury found the following special verdict,
viz.,
"That George Harmer, being seized in fee of the lands in the
declaration mentioned, on 25 June, 1782, made a paper writing,
purporting to be his last will and testament, all written with his
proper hand and signed by him, which will we find in these
words"
" In the name of God, Amen. I, George Harmer, of the
Commonwealth of Virginia, being perfectly well and of sound mind
and memory, do make and ordain my last will and testament in manner
and form following, that is to say all the estate, both real and
personal, that I possess or am entitled to in the Commonwealth of
Virginia I hereby give and devise unto my friend Thomas Mann
Randolph of Tuckabo, and Henry Tazewell, of the City of
Williamsburgh, in trust, upon these conditions that when John
Harmer, my brother, now a subject of the King of Great Britain,
shall be capable of acquiring property in this country, that they
or the survivor of them do convey or cause to be conveyed to him in
fee simple a good and indefeasible title in the said estate, and in
case the said John Harmer should not be capable of acquiring such
right before his death, then that my said trustees or the survivor
of them do convey the said estate in manner aforesaid to John
Lambert, son of my sister, Hannah Lambert, when he shall be capable
of acquiring property in this country, and in case John Lambert
should not, before his death, be capable of acquiring a title to
the said estate, then I direct the same to be conveyed
Page 7 U. S. 98
to my sister, Hannah Lambert, if she, in her lifetime, can
acquire property in this country."
" But if the said John Harmer, John Lambert and Hannah Lambert
should all die before they can acquire property legally in this
country, then I desire that my trustees aforesaid may cause the
said estate of every kind to be sold, and the money arising from
each sale, together with intermediate profits of the said estate
shall be by them remitted to the mayor and corporation of the City
of Bristol in England, to be by them distributed according to the
laws of England to the right heirs of my said sister, Hannah
Lambert, to whom I hereby give all such money, excepting the sum of
�100 lawful money to each of the aforementioned trustees, which
shall be paid out of the first money arising from the sales
aforementioned, or from the profits arising to my heirs. In witness
whereof, I have hereunto set my hand and affixed my seal this 25th
of June, 1782."
"We find that on 12 September, 1786, the said George Harmer,
being seized as aforesaid, duly executed another writing
testamentary, which we find in these words:"
" In the name of God, Amen. I George Harmer, being sick and weak
in body, but in perfect mind and memory, do give and bequeath unto
Doctor George Gilmer, of Albemarle County, all the estate called
Marrowbone, in the County of Henry, containing by estimation 2,585
acres of land; likewise one other tract of land in said county,
called Horse Pasture, containing, by estimation, 2,500 acres; also
one other tract in the county aforesaid containing, by estimation,
667 1/2 acres of land, called the Poison Field. It is my desire
that all my negroes, horses, and other property be sold, and after
paying my debts, the balance, if any, be remitted to my nephew,
John Lambert, out of which he shall pay his mother five hundred
pounds. . . ."
"Afterwards, on 12 or 13 September, 1786, he departed this life
without revoking the will or writing testamentary last mentioned
and without any other revocation of the will first mentioned than
the said writing testamentary of 12 September, 1786. We find that
John Harmer, mentioned in the paper writing of June, 1782, departed
this life about the year 1793. We find, that John Lambert, named in
the paper writings
Page 7 U. S. 99
aforesaid, the lessor of the plaintiff, and, if capable of
inheriting lands in Virginia, heir at law to the said George
Harmer; that he was born in England on or before the year 1750;
that he has never resided in any of the United States of America,
and is and ever has been, from the time of his birth, a subject of
the King of Great Britain. We find that George Gilmer aforesaid,
under whose heir and devisees the defendant holds, died in the
month of November, 1793. We find that in the December session,
1798, the General Assembly of Virginia passed an act which we find
at large in these words:"
" An act vesting in the children of George Gilmer deceased,
certain lands therein mentioned (passed January 12, 1799)."
" Section 1. Be it enacted by the general assembly that all the
right, title, and interest which the commonwealth hath or may have
in or to the following lands lying in the County of Henry, which
George Harmer, by his last will and testament, devised to a certain
George Gilmer, and which, since the death of the said George
Gilmer, it is supposed have become escheatable to the commonwealth,
to-wit, one tract called Marrowhone, containing, by estimation,
2,585 acres; one other tract called Horse Pasture, containing, by
estimation, 2,500 acres; and one other tract called the Poison
Field, containing, by estimation, 667 1/2 acres, shall be, and the
same are hereby released to, and vested in, the children, whether
heirs or devisees, of the said George Gilmer, deceased, to be by
them held and enjoyed according to their respective rights of
inheritance or devise under his will, as the case may be, in the
same manner as if the said George Gilmer had died seized of the
lands in fee simple, and an office had actually been found thereof,
saving, however, to a certain John Lambert, who, as heir at law to
the said George Harmer, claims the said lands, and to all and every
other person or persons, bodies politic and corporate (other than
the commonwealth) any right, title or interest, which he or they
might or would have had in or to the said lands, or any part
thereof, against the said children and devisees, if this act had
never been made."
" Section 2. This act shall commence in force from the passing
thereof."
"We find that George Harmer was at the time of his death seized
in fee of the lands in the
Page 7 U. S. 100
declaration mentioned, which are of the value of $3,000 dollars,
and that George Gilmer, at the time of his death, was seized of the
same under the devise to him from the said George Harmer. We find
the lease, entry, and ouster in the declaration mentioned. On the
whole matter, if the court should be of opinion that the law is for
the plaintiff, we find for the plaintiff the lands and tenements in
the declaration mentioned, and 20 cents damages, and if the court
shall be of opinion that the law is for the defendant, we find for
the defendant."
Upon this verdict, the judgment of the court below was for the
defendant.
The transcript of the record contains a bill of exceptions by
the defendant to the refusal of the court to the admission of
testimony to prove that George Harmer, at the time he made the will
in favor of Gilmer, declared to the person who wrote it that it was
his intention to give Gilmer the fee simple.
There was also an agreement of counsel that if the court should
be of opinion that the first will ought not to have been admitted
in evidence because not proved before a court of probate, then so
much of the verdict as relates to that will should not be
considered as forming any part of this case.
Page 7 U. S. 126
JOHNSON, J.
This is a writ of error from the Circuit Court of Virginia to
reverse a judgment in ejectment given for the defendant.
The circumstances of the case come out on a special verdict,
from which it appears that George Harmer, under whom both parties
claim, was a citizen of the State of Virginia. That on 25 June,
1782, he made a will by which he devised "all the estate both real
and personal which [he] possessed or was entitled to in the
Commonwealth of Virginia," to certain trustees,
Page 7 U. S. 127
"in trust and upon these conditions: that when John Harmer [his
brother, then] a subject of Great Britain, shall be capable of
acquiring property in this country, then they, or the survivor of
them, do convey or cause to be conveyed to him, in fee simple a
good and indefeasible title in the said estate,"
and in case John Harmer should not be capable of acquiring such
right before his death, he then directs the conveyance to be
executed to his nephew, the plaintiff, and in case of his not being
capable of acquiring lands before his death, he directs the estate
to be sold and the proceeds paid over to other relations.
In the year 1786, George Harmer executes another will which, as
every part of it is material to the case before us, I will peruse
at length. Here he read the will of 1786. The testator died soon
after executing the last mentioned will. His brother, John Harmer,
died in 1793, having never become a citizen.
The jury further find that John Lambert, the plaintiff, is a
British subject, was born before the revolution,
viz., in
the year 1752, and is heir at law to the testator. The treaties
with Great Britain, and an act of Virginia, vesting in George
Gilmer any interest that may have escheated, are also found in the
verdict. The land sued for is part of the Marrowbone tract. The
questions suggested are,
1. What estate is conveyed to George Gilmer by the will of
1786?
2. If but an estate for life, does the will of 1782 remain
unrevoked as to the remainder, so as to convey it to the
plaintiff?
3. And last. Is John Lambert disqualified to inherit as an
alien, or, if incapable generally as such, is he not protected by
the treaties existing between this government and Great Britain,
particularly the 4th article of the treaty of London?
To form a judgment on the first point, it is necessary to
consider
Page 7 U. S. 128
1. The general import and effect of the word "estate" as applied
to a devise of realty.
2. Whether its general import is controlled or altered by the
subsequent words used in a similar sense in the will of 1786.
I consider the doctrine as well established that the word
"estate," made use of in a devise of realty, will carry a fee or
whatever other interest the devisor possesses. And I feel no
disposition to vary the legal effect of the word, whether preceded
by "my" or "the" or followed by "at" or "in" or in the singular or
plural number. The intent with which it is used is the decisive
consideration, and I should not feel myself sanctioned in refining
away the operation of that intent by discriminations so minute as
those which have been attempted at different stages of English
jurisprudence.
The word "estate," in testamentary cases, is sufficiently
descriptive both of the subject and the interest existing in it. It
is unquestionably true that its meaning may be restricted by
circumstances or expressions indicative of its being used in a
limited or particular sense, so as to confine it to the subject
alone, but certainly in its general use it is understood to apply
more pertinently to the interest in the subject. To one not
accustomed to the discriminations of technical refinement, it would
seem that no doubt could be entertained as to the interest devised
to Gilmer. The plain ordinary import of the words would convey the
idea of an absolute disposition of every article of property
disposed of by the will. That words of inheritance are necessary to
convey a fee is certainly a good general rule of the common law,
but in the case of wills it is entirely subordinate to expressions
of the testator's intention.
In the case before us, there is no necessity for extending the
decision of the Court beyond the words made use of in disposing of
the Marrowbone tract. But it is contended that the words adopted by
the testator in devising the two other tracts are used in the same
sense as those in the first devising clause, and being of a
Page 7 U. S. 129
more restricted signification, ought to limit the word estate to
a description of the mere locality. I think otherwise. When a word
is made use of to which a clear legal signification has been
attached by successive adjudications, it ought rather, in my
estimation, to control the meaning of those of a more equivocal
purport. But the construction of a will ought to depend much more
upon the evident intent of the testator than upon the strict import
of any term that he may make use of. Too critical an examination of
the diction of a will is rather calculated to mislead the court
than to conduct it to a just conclusion.
I infer the intent of the testator, in the case before us, from
the following circumstances extracted from the special verdict.
1. In the first clause of the will of 1782, the testator makes
use of the expression "all the estate both real and personal which
I possess or am entitled to in the Commonwealth of Virginia,"
evidently under an impression that the word "estate" is sufficient
to convey a fee, because out of the estate thus devised to his
trustees he instructs them to convey to his brother, or nephew, in
the alternative stated, a good and indefeasible title in fee
simple.
2. There is no reason to infer from anything in this case that
the testator intended only to make a partial disposition of his
property; that he intended to die intestate as to any part of it.
The fair presumption generally is that he who enters upon making a
will intends to make a full distribution of everything that he
possesses. That such was the particular intention of this testator
I think fairly inferable from the general nature of the residuary
bequest. The word "other," in my opinion, is referable to the whole
preceding part of the will, and excludes as well the lands devised
to Gilmer as the negroes and horses which he directs to be sold. We
must give it this construction or else suppose either that the word
"property," here used, is confined to personalty, or that it
includes everything that he possessed, both real and personal, in
which latter case it would comprise even the lands previously
disposed
Page 7 U. S. 130
of. It follows, therefore, that in the clause in which he
proposes to dispose of the whole residue of his property, he omits
making any disposition of any interest in the lands in question;
evidently, as it impresses me, upon the supposition that he had
already disposed of his whole interest in them. What object could
the testator propose to himself by dying intestate as to the
remainder in fee in the lands in question? He knew that his heir at
law was an alien, and as such incapable of holding lands under a
government to which he did not owe allegiance. This circumstance is
evident from the will of 1782, and it is equally evident from the
same will that he felt that repugnance, which is common to all men,
at the idea of suffering his lands to escheat, and knew the means
of preventing it.
I am therefore of opinion upon the first point that George
Gilmer took a fee in the land which is the subject of this suit,
and this opinion disposes also of the second point and renders it
unnecessary for me to consider the third.
WASHINGTON, J.
The only question in this cause which I mean to consider is
whether the will of George Harmer, made in 1786, passes to George
Gilmer an estate in fee, or for life in the Marrowbone land. The
words of the clause containing the bequest are
"I give to Doctor George Gilmer, of Albemarle County, all the
estate called Marrowbone, lying in Henry County, containing by
estimation 2,585 acres, and likewise one other tract called Horse
Pasture, containing by estimation 2,500 acres; also one other tract
containing by estimation 667 1/2 acres, called Poison Field."
The rule of law most certainly is that where, in a devise of
real estate, there are no words of limitation superadded to the
general words of bequest, nothing passes but an estate for life;
but since in most cases this rule goes to defeat the probable
intention of the testator, who in general is unacquainted with
technical phrases and is presumed to mean a disposition of his
whole interest unless he uses words of limitation, courts, to
effectuate this intention, will lay hold of general expressions in
the will which, from their legal import, comprehend the whole
interest
Page 7 U. S. 131
of the testator in the thing devised. But if other words be used
restraining the meaning of the general expressions so as to render
it doubtful whether the testator intended to pass his whole
interest or not, the rule of law which favors the right of the heir
must prevail. Thus, it has been determined, that the words "all my
estate at or in such a place," unless limited and restrained by
other words, may be resorted to as evidence of an intention to pass
not only the land itself, but also the interest which the testator
had in it. But words which import nothing more than a specification
of the thing devised, as "all my lands," "all my farms," and the
like, have never been construed to pass more than an estate for
life, even when aided by an introductory clause declaring an
intention to dispose of all his estate. Except for the
establishment of general principles, very little aid can be
procured from adjudged cases in the construction of wills. It
seldom happens that two cases can be found precisely alike, and in
the present instance I do not recollect that a single one was read
at the bar which bears an analogy to it. The case of
Wilson v.
Robinson, which comes the nearest to it, is of doubtful
authority. No reasons are given by the court for its opinion, and
consequently it is impossible to know whether it was or was not
influenced by other parts of the will.
Ibbetson v.
Beckwith was decided upon a manifest intent to pass the
inheritance arising out of the different parts of the will taken
together, amongst which is to be found an introductory clause
which, the chancellor says, affords evidence that the testator had
in view his whole estate. The cases of
Countess of Bridgewater
v. Duke of Bolton and
Bailis v. Gale only lay down
the general principle which is not denied, that the word "estate"
in a will, standing alone, and unqualified by other words, is
sufficient to pass the whole of the testator's interest. The words
"all my land and estate," in the case of
Barry v.
Edgeworth express so plainly an intention to give a fee that I
only wonder a question could have been made of it. They are quite
as strong as if the testator had given the land, and all his
interest in the land, where the word "estate" or "interest," unless
construed, as was done in that case, would have been perfectly
nugatory. In
Goodwin v. Goodwin, the chancellor doubted
whether the word "estate" was not so limited and restrained by
strong words of locality and description as to deprive it of the
interpretation generally given to it.
Page 7 U. S. 132
In the case now under consideration, there is no introductory
clause declaratory of an intention in the testator to dispose of
the whole of his estate; yet I admit that if he had devised all his
estate called Marrowbone, without using other words calculated to
limit the technical meaning of the word "estate," the cases cited
by the defendant's counsel would establish beyond a doubt that a
fee passed. But I cannot read this clause of the will without
feeling satisfied that the testator did not mean to use the word
"estate" in its technical sense. For he not only varies the
description of the tracts of land called Horse Pasture and Poison
Field, so as to show that, with respect to them, he only meant to
describe their situation and quantity; but, by using the word
"other" it is plain that with respect to the Marrowbone estate, his
design was the same. Unless in the disposition of this latter
estate he had described or intended to describe it as so much land,
he could not with any propriety speak of the Horse Pasture estate
as another tract of land. It will hardly be said that the devise of
the last tracts pass more than an estate for life, unless the word
"estate," before used, can be transferred to those tracts so as to
impart to the expressions there used the technical meaning given to
the word "estate" where it stands alone. But I cannot perceive how
this is to be done without supplying words not used by the
testator, and which there is no necessity for doing in order to
make sense of the clause as it stands. It would, I think, be going
too far to supply more than is necessary to make each devise a
complete sentence and then to introduce the preposition "in" for
the purpose of making sense of the whole. Yet, if this be not done,
the word estate cannot, in respect to the Horse Pasture and Poison
Field tracts, be pressed into the service and made in any manner to
fit the sentence.
If only an estate for life in the Horse Pasture and Poison Field
tracts passed to George Gilmer, it will, I think, be very difficult
to maintain that the word "estate," in the same sentence, governed
by the same verb and coupled with the words which describe those
tracts of land, can be construed to pass a fee.
The testator certainly uses the words "estate" and "tract of
land" as synonymous expressions, and then the question will be
whether the generality of the first shall enlarge
Page 7 U. S. 133
the plain and usual import of the latter words, or the latter
restrain the technical meaning of the former. I know of no case
where the word "estate" is used at all in which its general import
is limited and restrained by so many and such strong expressions
descriptive of the land, and totally inapplicable to the interest
of the testator, as in the present. The words "the estate called
Marrowbone, lying in Henry County, containing, by estimation," so
many acres excite at first no other ideas than such as respect the
name and situation of the land, with the number of acres contained
in it. The description would be equally accurate whether the
interest of the testator were a fee or a term for years.
If, then, we are to search after and to effectuate the
intentions of men supposed to be unacquainted with legal phrases,
and are on that account to construe the words they use with
indulgence, I think we shall be more likely to fulfill this duty by
limiting the general import of a technical word which, in its
common use, is entirely equivocal and is rendered particularly
ambiguous in this case by the words which immediately attend it,
than by giving to the words "tract of land" a meaning which they do
not in themselves import and are seldom, if ever, used to express
more than a local description of the thing itself.
As the opinion of a majority of the Court is in favor of the
defendant upon the construction of the will, I do not think it
necessary to say anything upon the doctrine of alienage, as that
question may possibly come on in some other case in which it must
be decided.
PATERSON, J.
The devise in the will of George Harmer was intended to convey
some interest in the Marrowbone farm to George Gilmer, and the
quantity of interest, whether for life or in fee, is the question
now to be considered. It is a fundamental maxim upon which the
construction of every will must depend that the intention of the
testator as disclosed by the will shall be fully and punctually
carried into effect if it be not in contradiction to some
established rule of law. In such case the intention must yield to
the rule. This intention is to be collected from the instrument
itself, and not from extrinsic circumstances, and therefore the
Page 7 U. S. 134
will of A can afford little or no aid in discovering the
intention and expounding the will of B. Indeed, the number of cases
which are usually cited in arguments on devises tend to obscure
rather than to illuminate. When, however, a particular expression
in a will has received a definite meaning by express adjudications,
such definite meaning must be adhered to for the sake of uniformity
of decision and of security in the disposal of landed property. It
cannot be questioned that the word "estate" will carry everything,
both the land and the interest in it, unless it be restrained by
particular expressions, for "estate" is
genus
generalissimum, and comprehends both the land and the
inheritance. 1 Salk. 236; 6 Mod. 106; Pr.Ch. 264; 2 P.W. 524;
Ca.Tem.Talbot 157; 1 Vez. 226; 2 Vez. 179; 3 Atk. 486; 5 Bur. 2638;
1 Term 411. The word "estate" is the most general, significant, and
operative that can be used in a will, and according to all the
cases may embrace every degree and species of interest. If the word
"estate" stand by itself, as if a man devise "all his estate to A,"
it carries a fee from its established and legal import and
operation. Standing thus
per se, it marks the intention of
the testator, passes the inheritance to the devisee, and controls
the rule in favor of the heir at law. It is true that this word,
when coupled with things that are personal only, shall be
restrained to the personalty.
Noscitur a sociis. The word
"estate" may also, from the particular phraseology, connected with
the apparent intent of the testator, assume a local form and
habitation, so as to limit its sense to the land itself. Here
uncommon particularity of description is requisite, so as to leave
the mind perfectly satisfied that the thing only was in
contemplation, and nothing more.
A description merely local cannot be extended beyond locality
without departing from the obvious import of the words, and thus
making, instead of construing, the will of the testator. But when
no words are made use of to manifest the intention of the testator
that the term "estate" should be taken not in a general but in a
limited signification, then it will pass a fee, because the law
declares that it designates and comprehends both the subject and
the interest. Nay, such is the legal import and operation of the
word "estate" that it carries a fee even when expressions of
locality are annexed. To illustrate this position by apposite and
adjudged
Page 7 U. S. 135
cases, if a man in his will says, "I give all my estate in A,"
it has been held that the whole of the testator's interest in such
particular lands passed to the devisee though no words of
limitation are added. 2 P. Will. 524. So the word "estate" was held
to carry a fee though it denoted locality, "as my estate at Kirby
Hall." 2 Atk. 37;
Tuffnel v. Page; S.C. Barn. Cha.R. 9. On
which Lord Hardwicke observed that though this is a locality, yet
the question is whether it is such a locality as is sufficient to
show the testator's intention merely to be to convey the lands
themselves, and not the interest in them. He was of opinion that
the words were descriptive both of the local situation and the
quantity of interest. And in
Ibbetson v. Beckwith, Lord
Talbot observed that the word "estate," in its proper legal sense,
means the inheritance, and carries a fee. Why, indeed, may not
locality and interest be connected, and the same words express and
convey both? To exclude interest in the subject, the expressions
coupled with the word "estate" must be so restrictive and local in
their nature as to convey solely the idea of locality, and not to
comprehend the quantum of interest, without doing violence to the
words and intention of the testator. Besides, it is a just remark
repeatedly made by Lord Hardwicke and Lord Mansfield that where a
general devise of land is narrowed down to an estate for life, the
intention of the testator is commonly defeated because people do
not distinguish between real and personal property, and indeed
"common sense would never teach a man the difference," and
therefore judges have endeavored to make the word "estate" in a
will amount to a devise of the whole interest unless unequivocal
and strong expressions are added to restrict its general
signification. It would be a laborious and useless task to enter
into a minute and critical investigation of the great variety of
cases which bear on this subject. They are collected in a note by
the editor of Willes' Reports 296.
From the whole scope and complexion of the will of George Harmer
it is evident to my mind that the testator intended to dispose of
all his property, both with regard to the quantity and quality
thereof. He did not mean to die intestate as to any part of his
estate, but on the contrary it was his manifest intention to leave
nothing undisposed of by his will. He directs that all his
negroes,
Page 7 U. S. 136
horses, and other property sold, &c., which plainly
indicates what his intention was in regard to the lands which he
had previously devised. This last clause evinces and illustrates
the meaning of the testator, and removes every particle of doubt
from my mind as to the true construction which ought to be put on
the word "estate." To effectuate this intention, the term "estate"
is to be taken in its largest signification as comprehending both
the subject and the interest, the land and the inheritance.
Amidst the great mass of cases arising on wills, it is
impossible to select any two that are exactly similar. The variety
of expressions is infinite, and it is from the language that we are
to discover the intent. The same word, indeed, may be taken in a
different sense in different wills and even in different parts of
the same will owing to its juxtaposition, its associations, and the
manner in which it is placed and used. The case of
Bailis v.
Gale, 2 Vez. 48, may serve to elucidate the devise under
review in more points than one. "I give to my son, Charles Gale,
all that estate I bought of Mead after the death of my wife." These
expressions seem strongly to mark locality, in contradistinction to
interest. But what says my Lord Hardwicke?
"I am of opinion that both the thing itself and the estate,
property, and interest the testator had pass by the devise. Several
questions have arisen in courts of law and equity on devises of
this kind, but all the latter determinations have extended and
leaned as much as possible to make words of this kind comprehend
not only the thing given, but the estate and interest the testator
had therein. But it is objected the pronoun 'my' is not added;
there was no occasion for it. It was necessary he should use such
words as point out the whole interest in the land, which is
sufficiently done by the other words, for he bought of Mead the
land and the fee simple in the land, which is agreeable to the
construction of the word 'estate,' being sufficient to describe the
thing and the interest, as it is in the case of 'all my
estate.'"
So in the present will the words, "I give all the estate called
Marrowbone" contain a description of the land and the interest in
it. The case in Vez. is particularly
Page 7 U. S. 137
applicable and worthy of attention in another respect, as it
affords a complete answer to the distinction, which was ingeniously
raised and attempted to be sustained between the import of the word
"my" and "the," in devises like the present. The counsel for
Lambert contended that the word "the," "all the estate," was
descriptive of the thing, whereas, the word "my," "all my estate,"
was descriptive of the interest as well as of the thing. But in the
case of
Bailis v. Gale, Lord Hardwicke held with great
clearness that there was no difference between a devise of all my
estate at N and a devise of all the estate at N, and that a fee
passed in either case. Nor ought this opinion to be considered as
extrajudicial, for the counsel in
Bailis v. Gale insisted
that the pronoun "my" was necessary to make the devise carry a fee,
and therefore it claimed very properly the notice and decision of
the court. According to this opinion, a devise of the estate called
Marrowbone, in the County of Henry, must have precisely the same
construction and effect, as a devise of all my estate called
Marrowbone, in the County of Henry, which, it appears to me, would
unquestionably give a fee.
Some expressions in a will as "I give my farm, my plantation, my
house, my land," do, of themselves, contain no more than a
description of the thing, and carry only a estate for life, because
unconnected with words of inheritance or other words of a similar
import. For we are not permitted to enlarge the estate of a devise
unless the words of the devise itself be sufficient for that
purpose. In the present devise, the words, "all the estate called
Marrowbone" are competent to carry the degree of interest contended
for on the part of the defendant, and this construction accords
with the intention of the testator as disclosed by his will.
Whether it would not have been more beneficial to society to have
observed from the first the same technical phraseology and
strictness of legal terms in devises as in conveyances of landed
property is a question which may amuse the theoretical jurist, but
which as judges we cannot seriously discuss, for it is a leading
axiom in our system of jurisprudence, not to be shaken by judicial
authority,
Page 7 U. S. 138
that the intent of the testator, so far as it is consistent with
the principles of law, must be attended to and control the
decision. I am therefore of opinion that the words "I give to
George Gilmer all the estate called Marrowbone, in the County of
Henry" give a fee, being descriptive equally of the quantity of
interest and locality of the thing devised.
CUSHING, J.
The first question in this case is whether the devise to George
Gilmer, in the will of George Harmer, made in 1786, carries a fee
by the words "all the estate called Marrowbone, in the County of
Henry, containing, by estimation, 2,585 acres of land," &c.
Wills are expounded more favorably, to carry the intent of the
testator into effect, than conveyances at common law, which take
effect in the lifetime of the parties, wills being frequently made
by people enfeebled by age or indisposition and without the aid of
counsel learned in the law. Therefore words not so technical for
the purpose have in a great variety of cases, for above a hundred
years, been construed by the judges to carry a fee which would not
do so in a deed.
In a number of cases, the word "estate" has been determined to
comprehend the whole interest in the land. Among those adduced,
there are several which appear to me essentially in point to the
present case.
In the case 2 Lev. 91 (a case which has since been held, by good
judges, to be good law), a devise of "all my tenant right estate,
at B. in Underbarrow," was determined to import a fee.
I see no essential difference between that case and this except
the particle "the" instead of the pronoun "my," which, in common
sense and in the opinion of Lord Hardwicke, makes no difference.
"All the estate" is at least as extensive and comprehensive as "all
my estate."
In 2 P. Will. 523, the words "all my lands and estate in Upper
Catesby, in Northamptonshire," were adjudged
Page 7 U. S. 139
to carry a fee. That agrees with the case at bar except that the
word "lands" precedes "estate," which I think immaterial. "Estate"
is the most operative word.
In the case of
Bailis v. Gale, 2 Vez. 48, a devise of
"all that estate that I bought of Mead" was determined by Lord
Hardwicke to be of a fee. This, I think, is substantially like the
case at bar, and by him, "that, the," or "my" makes no material
difference. Add to this, what seems to make the point conclusive,
the testator appears to have a design to dispose of his whole
estate.
The other cases cited do not appear to contradict these, but,
varying in some circumstances, seem not so directly applicable; yet
by the spirit and reasonings attending them they tend to confirm
the rectitude of the other decisions which are more directly in
point.
The latter part of the devise in question, of several tracts of
land immediately succeeding the devise of "all the estate called
Marrowbone, in the County of Henry,", &c., if considered as not
carrying a fee, I conceive, would not, however, control or restrict
the prior part of the devise of "all the estate called Marrowbone,"
&c. Rather than that, I should suppose the former part would
carry spirit and meaning to the latter. But that is not necessary
now to be determined.
The first point being determined in favor of the defendant, the
former judgment must be affirmed.