
    John H. White vs. Augustus P. Crenshaw et al.
    Equity.
    No. 9521.
    Decided June 14, 1886.
    The Chief Justice and Justices Cox and James sitting.
    1. The ordinary rule is that a devise of land without any indication of the extent of the interest devised gives only a life estate. But if there can be gathered from expressions in other parts of the will evidence that, by the language of the devise, a fee simple was intended to pass, the court will give effect to that intention.
    2. The English courts do not follow the latter branch of the above rule. Because of their policy to keep the estate together, they decline to construe a will so as to take the inheritance from the heir, except upon plain ex-presions of intent in the particular instance ; but the policy of our laws of inheritance is subdivision among heirs, so that courts are not called upon to watch over the inheritance for the same reasons.
    3. A devise to one in express terms for life and then over, without words to indicate the extent of the interest last devised ; held, that, as testatrix, when she intended to devise a life estate, indicated it by saying so in express terms, the devise over without such terms must be taken as indicating an intention to give a fee simple.
    Bill to compel tbe performance of a contract for the purchase of real estate.
    statement oe the case.
    Elizabeth R. Lamed, being seised in .1856 of a certain piece of real property in the District of Columbia and the subject of this suit, died, leaving the following will:
    “In the name of God, amen! The last will and testament of Elizabeth R. Lamed, whose former name was Elizabeth R. Woodyear.
    “Being in sound health, memory and understanding, I now declare and publish this as my last will and testament, and hereby revoke all former wills and codicils thereto.
    “ Eirst, I give, devise and bequeath to my beloved mother, Mrs. Elizabeth H. Newman, the lot and house in which I now live in the city of Washington, together with my household and kitchen furniture therein at the time of my death, to hold the said lot and house and furniture during her natural life; and after her death, I give, devise and bequeath the -said house and lot to my beloved sister, Mrs. Emily Johnson. After the death of my mother, I direct and it is my wish, that the furniture I have bequeathed to her may be sold to pay or make up the legacies of money hereinafter stated.
    “Item. I give and bequeath and devise to my niece, Elizabeth E. Eiehardson, daughter of my sister Emily, all my property in the city of Baltimore on which there are payable ground rents.
    “Item. I give, devise and bequeath to McClintock Young, jr., and Alexander Young, jr., the children of my beloved sister, Susan Bird Young, my house and lot on St. Paul street, between Baltimore and Payette streets, in the city of Baltimore, to hold the same as tenants in common. If either of my said nephews, McClintock or Alexander, should die before arriving at the age of twenty-one years, this devise shall inure to the benefit of the survivor and his heirs.
    “Item. I give and bequeath the following legacies (then follow a number of legacies to various persons):
    “My residuary legatees I divide into four classes:
    “First. Mrs. Emily Johnson and her heirs.
    “Second. My brother, Francis Hollis Newman, and his heirs.
    “Third. The children of my brother, John F. Newman, and their heirs.
    “Fourth. My nephews, McClintock Young, jr., and Alexander-Young, jr., and their heirs.
    “All the rest, residue and remainder of my property, real, personal and mixed, after the devises, gifts and bequests stated in my will aforesaid, shall be divided amongst my residuary legatees, one fourth to each of the four classes as last recited for my residuary legatees.
    “In witness whereof I have hereto subscribed my name and affixed my seal this twenty-fifth day of July, in the year of our Lord eighteen hundred and fifty, after appointing Mrs. Elizabeth H. Newman, executrix, F. Hollis Newman, James J. Johnson and McClintock Young, executors, of this my last will and testament.
    (Attestation clause.)
    [seal.]
    E. E. Earned.”
    
      In 1855 a codicil to this will was made, in which further legacies were bequeathed by the first clause, and the second was as follows:
    “I revoke all that part of my will which relates to my executors; and I now appoint my beloved husband, B. F. Lamed, as my sole executor, and if my personal property is not sufficient after the payment of my debts to pay the legacies named in my will and codicils, I direct that they shall be paid out of my real estate, and I authorize and empower my executor, B. F. Lamed, to sell and dispose ot as much of my real estate as may be necessary to pay the legacies under my will and its codicil.”
    In 1885, the complainant White, as the executor of Emily Johnson, offered the fee simple of the property for sale, upon the assumption that Mrs. Johnson took such a title under the devise to her by Mrs. Lamed. The sale was at auction, a fee simple being guaranteed to the purchaser. The defendant Crenshaw was the highest bidder, and became the purchaser on these terms. On examining the title he became doubtful whether more than a life estate was taken by Mrs. Johnsen under the devise, and accordingly refused to complete the purchase; whereupon the bill in this cause was filed to compel a performance of the contract of sale.
    The only question before the court was whether a life estate or a fee simple was devised by the will to Mrs, Johnson.
    Worthin&ton & Heard for plaintiff.
    John B. Earner for defendants:
    A careful examination of the authorities on this subject, both English and American, shows that at one time the strict technical rule of law was applied to devises of this character, and unless the testator used, in connection with the devise, some technical expression, such as “heirs forever,” “assigns forever,” or “fee simple,” the estate which would pass under the will would only be an estate for life ; while in deeds the word “ heirs ” was absolutely essential. 3 Jarm., Wills, last ed., p. 20.
    
      The general rule that a devise without words of inheritance carries only a life estate prevails in this country, in absence of statutes to the contrary. Wright vs. Denn, 10 Wheat., 204; Sheldon vs. Bose, 41 Conn., 311; Cordry vs. Adams, 1 Harr. (Del.), 439; Doe vs. Dill, 1 Houst., 398; Fearing vs. Swift, 91 Mass., 415 ; Farrar vs. Ayres, 5 Pick., 404; Ferris vs. Smith, 11 Johns., 221; Edwards vs. Bishop, 4 N. Y., 62; Jones vs. Bramblet, 1 Scam., 216 ; Goodrich vs. Harding, 3 Band. (Ya.), 280 ; Whaley vs. Jenkins, Desaus., 80, 84; Newton vs. Griffith, 1 Harr. & G., Ill; Lummus vs. Mitchell, 34 N. H., 39; Jackson vs. Emler, 14 Johns., 198; Christie vs. Gage, 5 Bans., 139; 20 Barb., 331.
    While the general rule, as stated above, is considered by many'courts as binding, yet the tendency of current decisions is to apply the cardinal rule for the interpretation of all wills to the case of a general devise over, after an estate for life. The intention of the testator must decide all doubts arising on the face of the will itself, without reference to any extrinsic circumstances; and this court in the case of French vs. Campbell, 2 Mackey, 321, has followed this rule.
    The mere fact that the testator devises lands after the termination of a life estate will not show an intent to give the remainder in fee. Olmstead vs. Harvey, 1 Barb., 102,
    There must be something more than the bare devise\ The use of the word “estate,” “remainder,” “reversion,” or “ lands and tenements,” would in some cases carry with it an absolute estate, because it would tend to show an intention to devise all the interest of the testator. 4 Kent Com., p. 535.
    The case of French vs. Campbell, supra, is relied upon by the complainant as conclusively settling the dispute in the case at bar. But it is submitted that that case only goes so far as to hold that the intention of the testator is supreme in the construction of wills, and by no means does the decision of the court justify the syllabus given by the reporter.
   Mr. Justice James

delivered the opinion of the court:

Whether Mrs, Emily Johnson took a fee simple or only a life estate, under the will of Mrs. Lamed, is thé only question in this case. That will contains the following devises :

First. I give, devise and bequeath to my beloved mother, 'Mrs. Elizabeth H. Newman, the lot and house in which I now live, in the city of Washington, together with my household and kitchen furniture therein at the time of my death, to hold the said house and lot and furniture during her natural life, and after her death I give, devise and bequeath the said house and lot to my beloved sister, Mrs. Emily Johnson. * * * ”
“ I give and bequeath and devise to my neice, Elizabeth B. Bichardson, daughter of my sister Emily, all my property in the city of Baltimore on which there are payable ground rents.
Item. I give, devise and bequeath to McClintock Young, junior, and Alexander Young, junior, the children of my beloved sister, Susan Bird Young, my house and lot on St. Paul street, between Baltimore and Fayette streets, in the city of Baltimore, to hold the same as tenants in common. If either of my said nephews, McClintock and Alexander, should die before arriving at the age of twenty-one years, this devise shall inure to the benefit of the survivor and his heirs.”

In two instances the devise contains no indications that an inheritable estate is given. But in the third instance, where just the same language is used in giving the house in Baltimore to the two Youngs, the testatrix assumed that her words had given such an estate, for she goes on to say that if either of my said nephews, McClintock or Alexander, should die before arriving at the age of twenty-one years, this devise shall inure to the benefit of the survivor and his heirs.”

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 founded upon reasons which do not exist with us. When the statute of wills 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 expressions of intent in the particular instance. But the policy of our laws 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 when 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. We infer, therefore, from this devise, that she supposed she had given a fee simple to Mrs. Emily Johnson by the same language.

Applying that to the language used in the first item, where she gave a life estate in express terms to her mother, and then, at her mother’s death, gave the same property to her sister, with no words indicating the estate to be taken, we think that the two illustrations of her meaning furnished by the other devises would alone be sufficient to show that when she gave property without any reservations, she understood herself to be giving the fee simple.

But in this very item which contains the devise to Mrs. Johnson there is still another indication of her intention to pass a fee simple. She first gives the property to her mother in express terms 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? On these two grounds we think it is clear that the testatrix intended to give a fee simple to Mrs. Johnson.

The decree will be for the specific performance of the contract.  