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WRIGHT, Plaintiff in Error, v. DENN

March 4, 1825


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.

The opinion of the court was delivered by: Mr. Justice Story delivered the opinion of the Court, and, after stating the case, proceeded as follows:

Feb. 21st.

Mr. Wood, for the plaintiff in error, contended, that Mary, the wife of the testator, took a fee simple under the devise.

It was admitted, that a devise of land, without any technical words of limitation, or explanatory words, gives only an estate for life. But the intention of the testator will supersede this rule, and is the polar star to guide in the construction of wills. The local legislature were so impressed with the good sense of this principle, that, in 1783, a few years after the making this will, they passed a statute, declaring that a devise of lands should pass a fee, unless it was expressed to be for life only. Courts ought, therefore, to be liberal, in considering the explanatory words and circumstances relied on, to show an intention to devise the fee; by so doing, they further the intention of the testator.*fn1 a Greater certainty is not attained by a rigid than by a liberal construction of devises. The only mode of arriving at certainty is, by admitting a general devise to pass a fee, or by requiring strict technical words of limitation. The notion that descent is the general rule, and devise the exception, is more specious than solid. They are both distinct, co-ordinate rules.

He would first examine the clauses of the devise in question separately, and then consider their combined operation.

The words, 'all the rest of my lands and tenements, whatsoever, whereof I shall die seised, in possession, reversion, or remainder,' &c. are sufficient to pass a fee. The words rest, and in reversion or remainder, ought not to be rejected, if a meaning can be discovered for them. The devise of all the rest of his lands to his wife, clearly imports, that the previous pecuniary legacies shall be a charge on the lands, and that his wife shall be entitled to whatever interest remains after the legacies are paid. A charge on lands may be implied in a will.*fn2 b An estate tail in lands may be created by implication from a proviso;*fn3 c a fortiori, a charge may be implied. These lands were already charged in the hands of the testator with the payment of other legacies, by the will of his father, John P., and which were not then due. The clause in question then is, as it purports to be, a general residuary clause, in which the testator means to devise all his remaining interest in his real property. He could not have meant the rest of his lands by way of local description, for he had devised none before; but he meant all the remaining interest in the lands after the legacies were deducted. Wherever it appears that the testator intended to devise all his interest in land, a fee simple passes.*fn4 d This rule applies with increased force to residuary clauses, in which a greater latitude of construction is allowed.*fn5 e Though the words lands and tenements are strictly descriptive of locality, yet, in connexion with other expressions, especially in a residuary clause, they may refer to the quantity of interest or estate.*fn6 f The words, in remainder or reversion, aid the construction. Though the testator might not have been acquainted with the precise technical distinction between them, yet he must have known they meant an estate in expectancy. The case of Norton v. Ladd*fn7 g is very analogous to the present, and shows that a fee was intended.

If it be established, that the testator referred to his interest or estate in the farm in question in this clause, it carries all his interest, i. e. a fee simple, because it is residuary, and the language is broad and comprehensive enough for the purpose.

Again; the proviso, 'provided she has no lawful issue,' shows an intention in the testator to give a fee to his wife. This is a condition precedent to take effect at the time of his death; (1.) Because the terms used ordinarily import a condition precedent. Where there is nothing in the nature of the proviso, or in respect to the time of its performance, to show that a condition subsequent was intended, it is always construed a condition precedent. (2.) All the circumstances of the case show, that the testator intended the condition to take effect at his death, and to be precedent; for then the issue the devisee might have, would be his own child and heir. If it be contended, that this proviso refers to children the devisee might have by a future husband, the testator is made guilty of the absurdity of intending, that if his wife should marry again, she might retain the land, but if she should have issue by such marriage, she should forfeit it. The devise to the wife in this case, was intended to be a substitute for the descent to the heir. Whenever a devise of land is intended as a substitute for a fee, the substituted devise is a fee.*fn8 h A Court may discover, in a condition, the effect of which is, in a certain event, to defeat the estate, an intent, when the estate actually vests, to enlarge the disposition to a fee. Thus, as before shown, a devise may be enlarged to an estate tail by the terms of a condition.*fn9 i
But, to leave no doubt of his intention, the testator, in the next sentence, gives the devisee his land, 'to be by her freely possessed and enjoyed.' He drops the peculiar phraseology of the former clause, and takes up new language, manifestly for the purpose of enlarging the subject of his bounty. A life estate is susceptible only of a partial and limited enjoyment. The words 'freely to be enjoyed,' have been held sufficient to carry a fee.*fn10 j The idea, that these words, as used in the present case, give a life estate dispunishable for waste, is wholly inadmissible. It would be creating a state of things which would make the interest of the tenant at variance with the permanent improvement of the soil, and, consequently, of the best interests of the country. It would be his interest to commit waste, and to destroy the property. The testator could not have meant that the devisee should hold the lands as tenant for life, dispunishable for waste merely; for that would only exempt the property devised from one kind of restriction, when he manifestly contemplates a free enjoyment generally, without any restriction whatever. The free enjoyment is not annexed to the estate devised, but to the land. It is the land which is to be freely enjoyed. The estate is only the technical medium through which that free enjoyment is secured, and the Court will see that the devisee takes such an estate as is compatible with a free enjoyment.

But, even supposing these different clauses, taken separately, should be deemed inadequate to pass a fee, yet, taken conjointly, they form a body of evidence, strong and conclusive, to show that the testator intended to devise his entire interest in the lands. It is impossible to suppose that a plain man would have used such phraseology merely to give his farm to his wife for her life. All the clauses may be taken together, and receive their full, combined effect. Juncta valent.*fn11 k

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.

The intent must be clearly expressed, for it is a fundamental rule in the construction of wills, that the heir cannot be disinherited without express words, or necessary implication.*fn12 l This intention must also be expressed in language at least quasi technical; for it is perfectly immaterial how plain it may be, that the design of the testator was to pass a larger estate, unless that intention be manifest to the legal eye.*fn13 m

As the construction now contended for by the plaintiff in error would disinherit the heir at law, and vest the inheritance in a stranger, it is incumbent upon him to establish one or the other of these two propositions:

1. That there are express words creating an estate in fee in the devisee, (which is not pretended, and which, if actually ...

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