ERROR to the Circuit Court of New-Jersey. 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 the 15th of 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 seised, 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 seised of the land in controversy at the time of the will, and died seised, without issue, on the 10th day of 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 the 11th of 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. &c. to him, his heirs and assigns, for ever.' 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.
Mr. Webster and Mr. Cox, contra, contended, that under the will of James P., nothing more passed to the devisee than an estate for life. The plaintiff below claimed as heir at law. The title was, prima facie, in him. It was admitted on all hands, that the devise contains no wards of limitation sufficient to pass the inheritance. It is a general rule, that in order to create an estate in fee, words of inheritance, as 'heirs,' must be employed. Wherever an estate is granted, either specifically for the life of the grantee, or without any limitation, the legal presumption is, that the design was to create an estate for life only. In wills a greater latitude has been allowed. The intention of the testator, expressed in clear, unambiguous terms, will carry the fee. But the rules of conveyance at common law still operate, although not so rigorously, even in regard to wills; and, before the heir can be disinherited, there must be, not merely an intention, but an intention legally perceptible, in an instrument legally executed. The only difference between wills and deeds is, that in the latter, certain specific technical terms are essential; in the other, any words legally indicating the clear intention of the testator, are sufficient.