
    Giles B. Kellogg vs. Edwin Blair.
    A devise of all one's “estate,” after payment of debts and legacies, passes a fee, a.though the devisee is appointed executor, and the debts and legacies are not charged on him personally.
    Writ of entry, to recover a fractional part of a parcel of land in Williamstown. The tenant claimed title as heir of bis father, William Blair, to whom the demanded premises were devised by said William’s father, Absalom Blair. The demand-ant claimed as heir of his mother, who was one of seven daughters of said Absalom.
    The case was submitted to the court on the following agreed statement: Absalom Blair executed his last will on the 6th of January 1806, and the same was duly proved and allowed soon after his death. The first clause in the will was thus : “ As to my worldly estate, I give, devise and dispose of the same in the following manner and form ; viz. First, that my just debts and funeral charges be paid by my executor hereinafter to be named.” The testator then gave to his two sons, Young and Abel, and to his seven daughters, (including the demandant’s mother,) $40 each, and added this direction: “ All the above sums, given as aforesaid to my abovenamed children, are to be paid out of my estate, by my executor in the following manner ; viz. one third part to each of them in one year from my decease; the other two thirds in equal parts annually from said first payment, with interest on the two last parts of payments after the time of the first payment.” The testator next gave to his wife the use and improvement of one third part of all his real estate, the use of all his household furniture, and one third of all his personal es tate, during her life. The next and last devising clause of the will was in these words : “ Also I give to my son William Blair, whom I likewise constitute, make and ordain the sole executor of this my last will and testament, all my estate, both real and personal, not disposed of as above mentioned, by him freely to be possessed and enjoyed.” The land demanded in this suit is the real estate above devised.
    If, in the opinion of the court, William Blair, the father of the tenant, took an estate in fee, under the aforesaid devise to him of real estate, the demandant is to- become nonsuit; but if he took a life estate therein, then judgment is to be rendered for the demandant for the undivided part which he has demanded in his writ.
    D. N. Dewey, for the demandant.
    As this will was made long before the enactment of the provision in Rev. Sts. c. 62, § 4, that a will shall be construed to convey all the devisor’s estate in land, unless it clearly appears by the will that he intended to convey a less estate; it is to be construed by the principles of law previously settled.
    It is true that the word “ estate,” in a connection very sim« lar to that in which it is found in this will, has been held to pass the fee. But, by another class of cases, certain intentions of the testator, clearly expressed, and certain other terms which are used in this will, have been decided to pass only an estate for life ; viz. cases in which it is settled, that where the testator has charged upon the person of the devisee the payment of debts and legacies, the devise is in fee; but where the charge is upon the land, or the estate generally, the devise is for life only, if no words of perpetuity are added. In 4 Kent Com. (4th ed.) 540, it is said the “ general rule is, that if the testator creates a charge upon the devisee personally, in respect of the estate devised, as if he devises lands to B., on condition of his paying such a legacy, the devisee takes the estate on that condition, and he will take a fee, by implication, though there be no words of limitation; on the principle that he might otherwise be a loser But when the charge is upon the estate, and there are no words of limitation, as a devise to A. of his lands, after the debts and legacies are paid, the devisee takes only an estate for life.” S. P. Lithgow v. Kavenagh, 9 Mass. 165. Stevens v. Winship, 1 Pick. 326. JacTcson v. Bull, 10 Johns. 148. Van Alstyne v. SpraJcer, 13 Wend. 578. In Wright v. Denn, 10 Wheat. 204, the words of the testator were, “ I give and-bequeath to my wife, whom I likewise constitute my sole executrix, all and singular my lands, messuages and tenements, by her fully to be possessed and enjoyed.” Story, J. says, in that case, “ the clearly established doctrine is, that if the charge be merely on the land, and not on the person of the devisee, then the devisee, upon a general devise, takes an estate for life only.”
    It will not be contended by the tenant’s counsel, that the will in question charged the person of the devisee. The legacies were to be paid out of the estate. 10 Johns, and 13 Wend. ubi sup. And the words “freely to be possessed and enjoyed,” (as said by Story, J. 10 Wheat. 242,) “ admit of quite as natural an interpretation, as being construed to mean free of incum-brances ; and in this view are just as applicable to a life estate as a fee.” See also Goodright v. Barron, 11 East, 220.
    
      Briggs 8f Bishop, for the tenant.
    The introductory clause of the will, touching the testator’s worldly estate, shows that he meant to dispose of the whole of it. 4 Dane Ab. 608, 609. Jackson v. Merrill, 6 Johns. 191. The words “freely to be possessed and enjoyed ” by William, mean “ free from all limitations ; that is, the absolute property of the estate.” Lc vea-cres v. Blight, Cowp. 357. But the tenant relies principally on the words “ all my estate not disposed of as above mentioned.” This was a residuary devise, and the word “ estate ” carried a fee. 1 Rol. Ab. 834. Lambert v. Paine, 3 Cranch, 97. Butler v. Little, 3 Greenl. 239. Brown v. Wood, 17 Mass. 68. Jackson v. De Lancy, 13 Johns. 537. Godfrey v. Humphrey, 18 Pick. 537. In Wright v. Denn, 10 Wheat. 204, the devise was not of the testator’s “ estate,” but of his “ lands,” &c.
   Shaw, C. J.

It seems now too late to raise a serious doubt upon the point, that the devise of all one’s “ estate,” without words of limitation to heirs and assigns, carries a fee. A recent case in this court, well sustained by authorities, is' directly in point. Godfrey v. Humphrey, 18 Pick. 537. In the present case, it is a residuary clause of all the testator’s estate; for, although the words “ rest and residue ” are not used, words of the same precise legal import are used, to wit, “ all my estate, real and personal, not disposed of, as above mentioned.” The leading authorities, in support of the proposition, that the words “ all my estate,” in a will, carry a fee, are cited in 4 Kent Com. (4th ed.) 535, referring to the elaborate treatises of Pres ton on Estates, and Judge Williams’s edition of Hobart’s Rep. pp. 3 — 7, to the same point.

The counsel for the demandant relies on another class of cases, in which it is held that words in a devise, which would otherwise create an estate for life only, will be enlarged so as to give a fee, if the devisee is charged with the payment of money; and then contends very successfully, that this will does not. charge the devisee personally with the payment of money, or other duty. But these cases have no bearing upon a devise, by the word “ estate,” which carries a fee, whether the devisee be charged with the payment of money or other onerous duty, or not. All the cases cited, it is believed, are those where the devise is not of estate, but of lands, tenements, messuages, or by other terms descriptive of real property, and not of the devisee's estate or interest in it. In the case of Wright v. Denn, 10 Wheat. 204, mainly relied on in the argument, the will contained a devise to the wife “ of all my lands, messuages and tenements, by her freely to be possessed and enjoyed.” No one of the cases cited is a devise by the word “ estate.” This class of cases establish another and distinct ground, upon which words in a devise, without words of inheritance, will carry a fee, where such was the intent of the testator; and such will be construed to have been his intent, if he charge the devisee with a payment of money, which, if he had a life estate only, might render the gift a burden rather than a benefit. Baker v. Bridge, 12 Pick. 31. Jackson v. Merrill, 6 Johns. 192.

Demandant nonsuit.  