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wills to ascertain the intention of the testator, and to give effect to that intention, without regard to technical phraseology. In the case before us, the words of the will gave the land unqualifiedly to Mr. Clement, and I have no doubt that the testator intended to give a fee simple. I have no doubt, because in all such cases the testator would limit the estate for life or years, if he so intended. He makes no further disposition of the property, as he would have done if he had not meant to give a fee. Believing then that he meant to give a fee, I feel bound to give effect to that intent, notwithstanding the absence of words of inheritance or perpetuity.”

The same was held in Connecticut, in 1795, in Holmes v. Williams, 1 Root (Conn.), 341, the Court observing: "In personal estate common sense prevails as to the construction of a bequest; in real estate it does not, and principally bceause it is the policy of Great Britain to keep estates in families, and not to suffer the heir to be disinherited, as is said by Lord MANSFIELD, but by express limitations or words tantamount; no such policy however obtains here; all the heirs are as much entitled to the real as the personal estate," &c.

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But a devise after a life estate, especially if made to one heir, with an evident intention of excluding the other heirs, has been construed to carry the fee. Plimpton v. Plimpton, 12 Cushing (Mass.), 458; Butler v. Little, 3 Greenleaf (Maine), 239; Hall v. Dickinson, 1 Grant (Pennsylvania), 240. In the Massachusetts case above, the Court by SHAW, C. J., said: Where land is devised to one for life, and over to another, especially to a son, without words of limitation, or any further words to express his intent, such a devise over is construed to be a fee. The presumption is that such devise for life to a wife, with a gift over to a son, and without further limitation, was, in the mind of the testator, a final disposition of that part of his estate; and to effect that purpose it must be a devise of the fee." This construction was aided, in the mind of the Court, by the fact that subsequently in the will the testator gave to the same son the improvement of two other parcels for life, thus making a distinction between land and the improvement of land, and placing the two last described lots in contrast to the house and lot first given. So in White v. Crenshaw, 5 Mackey (District of Columbia), 113; 60 Am. Rep. 370, the Court said: "She first gives the property in express terms to her mother for life, thereby indicating that when she intended to give it for life she said so. Does not this indicate that she understood herself to be doing something quite different when she proceeded next to give the same house to her sister?"

Directly in opposition to the principal case, it has even been held that a devise without words of limitation may be supported as a devise in fee by coupling it with another which contained suitable words of limitation. Cook v. Holmes, 11 Massachusetts, 532; Neide v. Neide, 4 Rawle (Pennsylvania), 82; Pattison v. Doe d. Thompson, 7 Indiana, 282; Charter v. Otis, 41 Barbour (New York Supr. Ct.), 525.

So of a bequest of personalty. Smith v. Bell, 6 Peters (U. S. Supr. Ct.), 68. In the Massachusetts case above the Court said: "The words of the particular devise to Gregory, considered by themselves, certainly give no inherit He devises to his grandson, Gregory, C., only child of his son, Daniel

ance.

No. 2. Mitchell v. Sidebotham. Notes.

C., a certain piece of land in Watertown, containing, &c., without any words indicating the duration of the estate he meant to bestow, according to the rules of the law, there can be no doubt 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." But resorting to other parts of the will, the Court discover that the testator omitted words of inheritance although he unmistakably intended to give a fee. As where he devised to his son Stephen a tract of land which he had previously deeded to him and on which he held a mortgage from Stephen, and where he devised other lands to his son, Israel, on condition of his paying one-half the legacies, without employing words of perpetuity in either instance. "Here are two estates in fee created by the will, clearly according to the intention of the testator; and yet he left that intention wholly unexpressed by any words made use of by him in the respective devises. It is hence probable that the testator did not know the use of technical language; and we cannot infer that he had an intention to give a life estate only to Gregory merely because we find no estate whatever expressed." This view was strengthened by the testator's evident desire to make an equal distribution among his children and grandchildren, as avowed in the last clause. "Should the devise to Gregory therefore be considered as only a life estate, the equality which the testator had in view would probably fail of being effected."

In Neide v. Neide, supra, the devise was, "my late purchase from E. C., also four acres of woodland, being in a corner," &c. The fee in the former was held to pass because it described the quantity of interest, and the fee in the latter was held to pass because coupled with it.

Many States have held that whenever an intention to devise the fee can be drawn from the whole will by any inference, it will be supported to the exclusion of the technical rule, and very slight circumstances will suffice. Lummus v. Mitchell, supra: Cleveland v. Spilman, 25 Indiana, 99; Packard v. Packard, 16 Pickering (Mass.), 193; Leland v. Adams, 9 Gray (Mass.), 171, containing a careful review of the English cases. The avowal of the intention to devise all his estate, the creation of a pecuniary or personal charge on the person of the devisee in respect to the land devised, a devise for a public object, like a school, or a devise of "all the residue," &c., or of a remainder to "children," the use of sweeping words and expressions, have been held sufficient to carry the fee. Lindsay v. McCormack, 2 A. K. Marshall (Kentucky), 229; 12 Am. Dec. 387; Fox v. Phelps, 20 Wendell, 437; Barheydt v. Barheydt, 20 Wendell, 576; Bell County v. Alexander, 22 Texas, 350; Rathbone v. Dyckman, 3 Paige (New York Chancery), 9; Johnson v. Johnson's Widow, 1 Munford (Virginia), 549; Parker v. Parker, 5 Metcalf (Mass.), 134; Gernet v. Lynn, 31 Pennsylvania State, 94; Lambert's Lessee v. Paine, 3 Cranch (U. S. Sup. Ct.), 97; Beall's Lessee v. Holmes, 6 Harris & Johnson (Maryland), 205; Tolar v. Tolar, 3 Hawks (North Carolina), 74; Executors of Decker v. Executors of Decker, 3 Hammond (Ohio), 157 ; Bradford v. Bradford, 6 Wharton (Penn.), 236; Thompson's Lessee v. Hoop, 6 Ohio State, 480. In these cases, expressions as "my estate," "my plantation on which I live,” "my worldly goods," "all the residue and remainder," "my property,” "all I possess indoors and outdoors," have been deemed sufficient to carry a

No. 2. - Mitchell v. Sidebotham. - Notes.

fee. The most instructive of this line of cases is Neide v. Neide, 4 Rawle (Penn.), 82, where the devise was of "my late purchase from E. C., as also four acres of woodland, being in a corner," &c., and the fee was adjudged to pass although no words of inheritance were used. The Court observed: "I shall notice only a few of the many cases on this subject, observing that many judges have said that when an unlearned man gives a horse, and in the same sentence or a different one gives a house, and the Courts decide that each shall not hold absolutely and forever, they always disappoint the intention of the testator. I admit however that we are not at liberty to decide that a simple devise of lands to a man, unconnected with anything else, passes a fee, for we would by so doing unsettle estates for some years back. The legislature alone can do it prospectively. Where the words used not only apply to land, but to the quantity of interest which the testator has in it, or which he disposes of, that interest passes. There are many contradictory cases, as between 'I give my estate,' or 'I give my estate in A.,' or 'My estate at A.,' but the law seems to have settled down in this, that each of these expressions passes a fee unless restrained by other parts of the will. All my effects,' 'whatever else I have in the world' (Talbot's Cases, 286), all I am worth,' 'what I die possessed of,' 'what is left after my debts are paid;' the words property, substance, and many others have been held to pass a fee. In short, there has been an astuteness to find a meaning which can justify or excuse the Courts in giving a fee where it is plain that the testator intended it; and though some Judges have held in some cases that their predecessors had gone too far, and have doubted some of the decisions, yet the current has still set in the same direction, and cases doubted by one Judge have been considered clear of doubt by his successors." "It is apparent however that it is not so much the particular word or phrase used, as the context, or the scope of the whole will, which passes the fee; every word and expression in the English language has different meanings in connection with different words or applied to different subjects. The express devise to a man and his heirs and assigns is often cut down by other expressions, or by being applied to a long lease, to estate tail or to an estate for years; and so a devise without words of addition may carry a fee if the expression used shows that the testator had in view the quantity of interest as well as the description of the property given. The rule once was that the heir-at-law cannot be disinherited by any other than express words or necessary implication. In Fagge v. Heaseman, Willes, 141, Chief Justice WILLES shows that this rule though often repeated has not been acted on, and is inconsistent with many decisions of Judges who have used it, and he says the true rule is that it ought plainly to be the intent of the testator, or the heir will not be disinherited. In our own Courts the same principles have been laid down in nearly the same words." "The words 'my late purchase' as used, may and naturally do, as well as a description of the property, include a description of the estate or interest in the property. The case in 2 Vesey, 48, has nearly the same phrase, and was held to pass a fee." Citing also Hobart, 32. In Harper v. Blean, 3 Watts (Penn.), 471; 27 Am. Dec. 367, the words, "with whatsoever is not named that I have any right or claim to, either in law or equity," were held to vest a fee, citing several English cases, including Ridout v. Pain, 3 Atk. 488.

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The doctrine that a personal charge on the devisee excuses the absence of words of inheritance is also found in Jackson v. Bull, 10 Johnson (New York), 148; 6 Am. Dec. 321; Heard v. Horton, 1 Denio, 165; 43 Am. Dec. 659; Bell v. Scammon, 15 New Hampshire, 381; 41 Am. Dec. 706, and notes, 714; Canedy v. Jones, 19 South Carolina, 297; 45 Am. Rep. 777.

The doctrine of aider by introductory words is found in McIntyre v. McIntyre, 123 Pennsylvania State, 329; 10 Am. St. Rep. 529.

In White v. Crenshaw, 5 Mackey (District of Columbia), 113; 60 Am. Rep. 370, the Court said: "The ordinary rule is that a devise of land without any indication of the extent of the interest devised, gives only a life estate. The question however is, whether there may be gathered, from expressions in other parts of the will, evidence that in using this language the testator intended to give a fee-simple. Undoubtedly the English rule is that such indications in other parts of the will affect only the provision to which they directly apply. They are not accepted as going to explain the testator's meaning in the use of phraseology elsewhere. But the English rule is When the statute of wills

founded upon reasons which do not exist with us. was passed there already existed a policy to keep the estate together and in one hand. Therefore the Courts very properly declined to construe wills as taking the inheritance from the heir except upon plain expression of intent in the particular instance. But the policy of our law of inheritance is subdivision among heirs, so that our Courts are not called upon to watch over the inheritance for the same reasons. We are not at liberty, in construing a will, to ignore anything that suggests the testator's intention to take the inheritance from the heir; on the contrary, we are charged with a duty to observe these indications and to follow them in ascertaining the intention of the testator. In this case we find that where the testatrix gave a piece of land to two nephews in Baltimore, by just the same language, and without the use of the word 'heirs,' or any equivalent, she assumed that she had given them a fee-simple, and therefore went on to state what should be done in case of the death of either of them before they became twenty-one years of age. We learn in this way what the testatrix supposed and intended to be the effect of a devise of a described piece of property, without using words of inheritance or any particular equivalent for them, and we must be guided by her lexicon, and understand her language as she defines it."

In a Virginia case, in 1810, before the statute (Johnson v. Johnson's widow, 1 Munford, 549), a fee was held to pass because an illiterate testator used the same words in disposing of his real as of his personal property, and disposed of both in the same sentence, "one hundred and twenty acres of land I bought of James Kitchen, and one cow," &c. (Citing Rose v. Hill, 5 Burr. 1884.) In addition the Court laid stress upon his giving the residue of all his estate to his wife for life or widowhood, and afterward to his son, and asks, "Why then did he not express himself in like manner as to this land, if indeed he intended to give only a life estate in it?" Still further, he gave his heir at law five shillings, which "creates a very strong presumption he had no intention he should ever inherit this one hundred and twenty acres." No remark is made on the phrase, "land I bought of James Kitchen," which in Pennsylvania would have been potent.

No. 2.- Mitchell v. Sidebotham. —Notes.

The rule in Shelley's case was early recognized in some of the United States, as New York and Connecticut, but is now almost uniformly rejected by statute. It is said still to exist in Delaware, Griffith v. Derringer, 5 Harrington, 284; and in Indiana, Allen v. Craft, 109 Indiana, 476; 58 Am. Rep. 425; and is the law of Pennsylvania, Guthrie's Appeal, 37 Pennsylvania State, 9; but so modified "as to deprive it of all fatal virus." 2 Redfield on Wills, p. 226.

Judge Redfield, who stands at the head of American writers on Wills, speaking of the rule in Shelley's case, says (2 Wills, p. 722): "But in all the American States, or nearly all, there has been considerable hesitation in regard to accepting and applying this rule to the fullest extent. It was always regarded as an artificial rule of construction in England, and one which tended to defeat the intent of the testator. And it has not received the unqualified indorsement of the English Courts in regard to devises. We should regret to find the American courts going further in the rigid application of such an unnatural rule of construction to devises than such English Judges as MANSFIELD and WILMOT were willing to go:" in Doe v. Lansing, 2 Burr. 1100. He then points out what he deems to be the reasonable limits of the rule, and adds: "But beyond this it seems to us the rule has no just application to deeds even, and surely not to devises. And the fact that in all the American States where the rule has been carried beyond this reasonable limit, the legislatures have interfered and repealed it, goes to show very satisfactorily that it has no just foundation, either in principle or in the instinctive percep tions of the people."

Mr. Schouler, another approved American writer on Wills, says (Wills, sect. 485): "This refined construction in favor of the heir, together with the refinements of exception built upon it, now gives way to the modern rule of interpretation as defined in the English Act of Victoria (1837), and corresponding enactments throughout the United States, many of them dating much earlier." As in New Jersey, Virginia, North Carolina, before the Union, and in New York in 1830. "This modern rule treats a devise of lands, though without words of limitation, as passing the fee simple to the devisee, unless an intention appear to the contrary. The natural scope of the will, as gathered from all its parts, thus settles in fine the question whether or not (sic) a devise in fee or such other complete interest as the testator had power to dispose of shall pass, or instead a mere usufruct and temporary enjoyment, leaving to the heir the ultimate benefits."

Mr. Bigelow in note (2 Jarman on Wills, p. 280), says: "That words of inheritance are unnecessary to carry a fee by will is everywhere held." Citing among other cases, Whorton v. Moragne, 62 Alabama, 201; White v. White, 52 Connecticut, 518; Wetter v. Walker, 62 Georgia, 142; Siddons v. Cockrell, 131 Illinois, 653; Morgan v. McNeeley, 126 Indiana, 537; Bulfer v. Willigrod, 71 Iowa, 620; Pratt v. Leadbetter, 38 Maine, 9; Goodwin v. McDonald, 153 Massachusetts, 481; Tatum v. McLellan, 50 Mississippi, 1; Small v. Field, 102 Missouri, 104; Hance v. West, 32 New Jersey Law, 233; Crain v. Wright, 114 New York, 307; Flickinger v. Saum, 40 Ohio State, 591; Morris v. Potter, 10 Rhode Island, 58; Bell County v. Alexander, 22 Texas, 350.

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