
    [Present, Chancellors Rutikdge, James and Tnoirrsoir,]
    Nicholas Cruger, and Ann Sarah his Wife, vs. Thomas Heyward, and Eliza, Thomas and James Heyward, Minors, and Eliza M. Heyward, a Minor.
    A devise by II. of all his estate, and of all the rest, remainder and residue of his estate, disposes of the contingent interests and remainders which he had in an estate, that did not vest in him during his life. The court will not conjecture whether the testator had it in contemplation to dispose ofthis contingent estate; but will give eft feet to the words of the will, according to their plain import.
    THE bill set forth, that complainant Ann, before her intermarriage with complainant, Nicholas Cfuger, was the widow of Daniel Heyward, deceased.
    
      MAY, 1806.
    That Colonel Daniel Heyward, grandfather of the said Daniel, being possessed of a very considerable veal and personal estate, made his will on the 7th June, 1776,-whereby he devised his Island, called Callewashie, and the slaves, stock, &c. thereon to his son Thomas, in trust for his son Daniel, during his natural life, and at his death, to be divided by his executors among his heirs in the manner therein directed.
    That afterwards the said Col. Daniel Heyward made á codicil to his said will, dated 15th July,’ 1777, whereby he revoked the above devise, and disposed of the said Island Callewashie, precisely as follows :
    To his son Benjamin, but in case he die without lawful-issue, to his grandson, Daniel Heyward, and his heirs for ever.
    That the said Col. Daniel Heyward, shortly after died, leaving the said codicil of force. That the said D. Heyward, the grandson, being possessed of a considerable real and personal estate, made his will on the 20th February, 1796, wherein he devises and bequeaths as follows, to wit:
    “ Item. It is my will, that until my much loved daughter Elizabeth Mathews Heyward shall be married, or attain the age of 21 years, my dear wife shall have and enjoy the use and profits of all my estate, if she remain as long my widow; and when my said daughter shall be married or attain that age, then the use and profits of all my estate shall be equally divided between my said daughter and wife, as long as she shall continue my widow; and from and immediately after the second marriage or death of my wife, then I give, devise, and bequeath all the rest, remainder and residue of my estate to my said daughter, her heirs, executors, administrators and assigns.
    “ Item. If I should have no child who shall live to be married, or attain the age of 21 years, then it is my will that my much loved wife, shall have the use and profit of my estate as long as she shall continue my widow. Item. If I should leave no' child who shall live to be married of attain the age of 21 years, then upon the secoñd marriage ór death of my wife, 1 give unto Eliza Thomson the sum of 10001. to be paid by five equal annual instalments ; and ad die rest, residue, and remainder of my estate, I givej devise, and bequeath to be divided in the following manner, that is to say, one half thereof to my sister Eliza Heyward, and lier heirs, &c. and the other half to be equal*» ly divided between my brothers Thomas and James Hey-ward, and their heirs, See.”
    That the said Daniel Heyward, in a few days after making- his said will, and in the sanie month of February^ ÍP96, died, leaving it in full force.
    That his said daughter Elizabeth M. Heyward, is a minor under the care of her mother. That about seven months after the death of the said Daniel Heyward, the. grandson, viz. áboutthe day of September, in the Same year 1796, the said Benjamin Heyward died under 21, unmarried,- and without issue. That D. Heyward,, the grandson, having died before the said Benjamin, who was then a healthy young man, and the said Daniel having but a contingent interest or estate in the said island Callewashie, could not reasonably be presumed to have it in contemplation^ or to intend when he made his said will to comprehend the same therein, or to dev.ise it thereby | more especially as there are in the said will no words expressive of any contingent interest or estate in expectancy Or remainder 3 and although he may have made use of the words residue and remainder of my estate, they must be reasonably construed to apply to and be restricted to the estate which was then vested in him, or in his possession; and if the said island Callewashie be considered as unde-vised by tbe said will, then the complainant will be entitled to an undivided third part thereof, accoi-ding to the act for distributing the heal estates of intestates. And that complainants have applied to defendant Thomas Heyward for the title deeds and papers relating to the said island Callewashie, but he has refused to deliver the Same, although the complainant is entitled to the possession thereof, whether she is Considered as a coheiress of that island, or only as executrix of the will of her former husband. That defendant insists the complainants arc not entitled to any part of the said island, but that it will fall under the residuary clause of the will of the 'said Daniel Heyward the grandson, to defendants children the said Eliza Thomas and James Heyward, upon the said Elizabeth Nl. Heyward, the daughter of the said Daniel, dying unmarried, and under 21. But complainants state that the said island, upon the death of Benjamin, without issue, was Vested in the representatives of Daniel, the grandson, as a part of his estate undvvised by him, and that he must be considered as having died intestate as to that island.
    Bill prays that the court would decide whether complainants are not entitled to one undivided third part of the said island Callewashie, and that defendant may discover and deliver to complainants all deeds, titles and papers in his possession relative to said island. Bill prays for a subpoena and for a commission to appoint a guardian, for, and to take the answer of Elizabeth M. Heyward, the minor, and for relief.
    The answer of Thos. Heyward} admits that defendant’s ' father, Col. Daniel Heyward, being possessed of a considerable estate, real and personal, made his will and codicil as stated by complainants; and that the extracts therefrom, inserted in the bill, are correct, and that he died soon after making the said codicil, leaving his said will and codicil in force.
    Answer admits that Daniel Heyward the son of this defendant, and grandson of Col. D. Heyward, being also possessed of a considerable real and personal estate, made his will, of which the extracts in complainants bill are a true copy, and died soon after, leaving the same of force. That the said D. Heyward left alive at the time ofhis death, an only child named Elizabeth M. Heyward, a minor, now in New-York under her mother’s care.
    That after the death of the said Daniel Heyward, the grandson, Benjamin the youngest son of the said original testator D. Heyward, to-whom he had devised Callewashie,, (and upon his death, without lawful issue, he devised it to sa^ grandson Daniel Heyward, and his heirs forever,) departed this life in the month of Sept, f 796, under 21, unmarrje¿ an(J w}thout issue.
    The answer states that defendant cannot admit complainants reasoning, adduced to shew that the said Daniel Heyward "having but a contingent interest in the said island Callewashie, dependant on the life of Benjamin Heyward, then a young man, “ could not reasonably be presumed to have it in contemplation when he made his- said will, or intended to comprehend the same therein, and to devise it thereby ; more especially as there are in the said will, no words expressive of any contingent interest or estate in expectancy or remainder.” On the contrary, defendant contends that without pretending to conjecture what part of his estate vested or contingent, passed in review of the mind of said D. Heyward, or what rights and interest he had in his contemplation at the time of making said will", (which conjecture would be extremely dubious in any case of a will made in the distress of a last sickness,) the plain and comprehensive words of the will, from which the intent is to be gathered, do pass whatever contingent interest the testator had in the island Callewashie to his daughter' E. M. Heyward, and in the event of her decease, unmarried or under 21, to the brothers and sister of the said testator, being the children of defendant; who became thereby entitled (in the order he has prescribed) to all the estate, real and' personal, vested and contingent, which the testator himself was entitled to, or was interested in : and ,defendant is willing to submit to the construction which-the court may give to the said will. The answer admits that complainants have applied to defendant for the title deeds and papers relative to the said island Callewashie, and that defendant has delivered the same to his .counsel, who are instructed to deliver them up to such person as ' the court may think has the best right to the same.
    
      The answer of Eliza, Thomas and James'Heyward, minors, by Thomas Heyward, their father and guardian, states, that defendants are strangers to all'the matter contained in the bill, otherwise than they have heard that Col, Daniel Heyward, their grandfather, being possessed considerable estate, made such will and codicil as complainants have set forth, and that Daniel Heyward, the grandson of the said Col. D. Heyward, being also possessed of a large estate, made such will as is set forth by complainants, and died at the time mentioned in bill. That defendants have heard that Benjamin Heyward, the youngest son of the said Col. D. Heyward, died under age, unmarried and without issue ; and that their brother, the said Daniel Heyward, the grandson, made some provision for defendants in his said will, in the event of Elizabeth M. Heyward, his daughter, dying under age, and unmarried.
    That defendants being infants, submitted themselves and all their rights and interests to the care and judgment of the court,
    The answer of Eliza , Heyward states, that she is a stranger to all and singular the matters contained in the bill, and admits that the circumstances stated in bill may be true. The death of the parties, and their {¡states may be correctly stated. That defendant being an infant, submits her rights to the protection of the court.
    The cause came to a hearing, and was argued by Mr, Parker and Mr. Pringle and Mr. Cross for the complainant.
    They contended that the contingent interest which Daniel the grandson had in the Callewashie estate, could not have been in his contemplation in devising his estate, and was not intended to be passed by the words used in his will, and did not pass thereby. That the testator cannot be supposed to have meant to dispose of any other estate than what he had in possession, 3 Term. Rep. 88.
    
      The estate in the son Benjamin, under his father’s will, was a fee simple conditional. 2 Atk. 170. The interest of Daniel, the grandson, was a mere possibility, a contingency, which could not pass under the words, “ all my estate.” 6 Vesey, 577, 8.
    A contingent interest never has been allowed to pass under a will, but by express words. See Merchant and Twisden, Gilb. Rep. 30. Strong vs. Treat. 2 Burr. 8 Term. Rep. H8. 3 P. Wms. 55. 3 Ves. 225. 2 Ve-sey, 48.
    Mr. Ford and Mr. Desaussure, for the defendants Thomas Heyward and his children, by the second marriage,
    contended, that there was a plain arid distinct estate in remainder in the Callcwashie property, in Daniel the grandson, to take effect on the death of Benjamin Heyward without lawful issue. That this was such an interest as was devisable by Daniel the grandson ; and that the devise of “ all his estate,” and of the “ rest, remainder and residue of his estate,” by the grandson Daniel, did carry every estate which he possessed, real and personal, in possession or remainder. And that to go into conjectures whether the testator had in his contemplation this or any particular estate, and not other estates, would introduce extreme uncertainty and endless litigation. That there was but one sound rule of construction in seeking the intent of the testator, which was to examine carefully the words actually used in the will, and to give them their natural and full effect. In this way, the court would proceed on sure grounds, and not upon conjecture. The counsel cited 1 Fonbl. 201, SP.Wrns. 524. 1 Term. P.ep. 411. 1 Burr. 417. Cowp. 363, 808. 4 Term. Rep. 605. 1 Atk. 411.
    Mr. Gaillard for the defendant Eliza M. Heyward,
    argued that it was the intention of the testator that if his wife married again, she should have no part of his estate. She has married again, and cannot support any claim to any part of the estate.
    He cited 1 Fonbl. 207, 209. 1 Vesey, 438,494¡.
   Chancellor

James afterwards dcliyered the de< ree ofthe court:

The question to be decided by the court in this case, arises under a clause in the codicil to the will of Colonel Daniel Heyward, and a clause in the will of his grandson,T Daniel Heyward, These clauses are in substance as follows:

Col. Daniel Heyward devised his Island, called Cal-lewashie, “ to his son Benjamin, but in case he die without lawful issue, to his (the testator’s) grandson Daniel Heyward, and his heirs forever.” The grandson, Daniel Heyward, afterwards made his will as follows :

“ It is my will, that until my much loved daughter .Elizabeth Mathews Heyward shall be married or attain the age of twenty-one years, my ever dear wife shall have and enjoy the use and profits of all my estate, if she remain as long my widow; and when my said daughter shall be married, or attain that age, then the use and profits of all my estate shall be equally divided between my said daughter and wife as long as she shall continue my widow and from and immediately after the second, marriage, Qr death of my wife, then I give, devise and bequeath all the rest, remainder and residue of my estate to my said daughter and her heirs, executors and administrators and assigns.”

By the above codicil, Col. Daniel Heyward devised a fee conditional at common law to his son Benjamin, with remainder in fee to his grandson, Daniel Heyward, to vest in possession upon the death of his son Benjamin without lawful issue. The grandfather Daniel, died; next the grandson Daniel died, (leaving alive his wife and one child Elizabeth;) and lastly the son Benjamin also died, unmarried and without leaving lawful issue. The question is therefore whether this remainder (in the Cal-lewashie estate) will pass by the devise, to Elizabeth Ma~ thews Heyward, the daughter of the grandson Daniel Heyward, the mother being married ? Or whether Daniel ileyward the grandson shall be decreed to have died in^ testate as to that part óf his estate ? The complainants counsel contend that this remainder was so remote that jle coupj not have had it in contemplation at the time of making his will; that it was a mere possibility, and that t|lere s{10ui¿ have been express words to pass it. Defendants counsel rely upon the very general words in the will, “ all my estate,” and “ all the rest, remainder and residue of my estate,” and contend that they are sufficient' to carry the remainder in fee. It is admitted on all hands, that a possibility may be devised, and the cases are clear as to that point. The question therefore is narrowed down to the single point, whether the possibility in this case passed under this will ? Now it plainly appears that the testator has used in this devise the most general and comprehensive words that he could possibly have used. Had he descendedlo particulars and omitted this contingency, then there would have been a doubt; and the maxim of law, “ expressio unkis est exclusio alterius,” might have applied; but he has pursued the most safe way, and made use of the most general expressions, “ all my estate,” and “ all the rest, remainder and residue of my estate.” Now that learned lawyer, judge Euller, has said that the word “ estate” is the most general word that can be used; for it is genus generalissimum; and Lord Holt has also laid it down in the case of the Countess of Bridgewater, against the Duke of Bolton,- “ That the devise of all one’s real estate comprehends not only the thing but also the interest in it.’3 And again it is laid down by judge Blackstone in his commentaries, 2d. vol. page 103, “ If a man grants all his estate in Dale, to A. and his heirs, every thing that he possibly can grant shall pass thereby.” The words “ all my estate,” being so general and comprehensive, the next words to be considered are, “ all the, rest, residue and remainder;” and these being joined in the same sentence with the words M all my estate,” must refer to them'as their antecedent; and the rule of construction ex aniccedentibus et conseqv.entibits fit optima interpretation musí govern s consequently all the estate of the devisor, after the falling in of the provision made for the wife, while she continued his widow, must pass by the will.

Therefore upon the authority of the cases cited, upon the very comprehensive words used in the will, and the construction of law arising upon the same, the court are opinion that the remainder in fee did pass thereby.

Wherefore it is decreed that the bill of complainants be dismissed, and that they do pay the costs of this suit.  