
    GENERAL COURT,
    OCTOBER TERM, 1797.
    Belt’s Lessee vs. Belt.
    Ejectment brought to recover several tracts of-land lying in Prince-(jeorge’s county, viz. Addition to Good Luck, Recovery, The Jeremiah and Mary,- and Belt’s Pig Pen.
    
    The following case was stated for the court’s opinion, viz. It is admitted by the parties that Jeremiah Belt, the testator, was seised in fee of the tracts of land for which this suit is brought, at the time of making and executing his last will and testament, bearing date on the 15th of October 1750, and that he died seised and possessed thereof, as the law requires; which will is as follows, to wit: «In the name of God, amen. I, Jeremiah Belt, of Prince-George’s county, gentleman, being in perfect health, and of sound and perfect mind and memory, and being desirous to settle my -worldly affairs, do make this my last will and testament, in man" aer and form following, viz.
    «Imprimis. I recommend my soul to the Creator, hoping through the merits of my Redeemer that it will be found acceptable in his sight; my body I desire may be decently buried, and at the discretion of my loving wife, Mary Belt, and my kinsman Jere. Belt, and flat the charge and expense thereof be defrayed out of any whole personal estate, which after my debts paid, and the above charge be deducted, I dispose of as follows:
    
      «‘Item, I give and bequeath to Edward Talbot ah that tract of land lying on the draft of BennetPs creek, called Belt’s Tommohank, containing one hundred and fifty acres, and lying in Frederick county; but if the said Talbot should die before this will be in force, then to his eldest son then living.
    
      “Item. I give and bequeath all the rest of my estate, real and personal, to my loving wife Mary Belt, duadng her natural life, and then as follows:
    «Item. I give and bequeath to Jeremiah Belt, son of Col. Joseph Belt, all my lands, which are as followeth: addition to Good Back, 150 acres; Recovery, 400 acres; Jeremiah and Mary, 100; Belt’s Fig Fen, 200 acres; as also the right of mortgage on John Brashsar’s land, called Bresher’s Meek, as far as my right cloth reach; and also ail my right of mortgage to Francis Dorset’s land, being part of Orphan’s Gift, to quietly possess these lands after the death of my "Wife, and not before/ and if the said Jeremiah Belt should die before he comes to enjoy the lands before mentioned, then they shall be the right of Ms eldest son Bichard Bclt¡ and if he die before he comes to the age of 2 j years, then the lands before ¿mentioned to be the right of his second son. Edward Belt^ and if he should die before he comes to the age of 9A years, then all the right of all the lands before mentioned to be the eldest son of Joseph Belt, son of Col. Joseph Belt, to them and their heirs and assigns forever.
    
      “Item, I give and bequeath to Fielder Gantt one negro girl named Sarah, but not her increase that she may have before tice death of my wife, bufail after; an$ also one negro boy named Roger, but not to have either of them till after the death of my wife Mary Melt.
    
    
      
      “Item. I give and bequeath to Jeremiah Belt, before mentioned, and Tobias Belt and Joseph Sprigg Belt, after my debts are paid, all the remainder of my personal estate, to be equally divided between them; and if either die, then between the other two; and if two die, then to the other one; and if all three should die, then to Richard Belt, (eldest son of the aforesaid Jere. Belt) and Thomas Belt, brother of Joseph Sprigg Belt.
    
    “Lastly, I do appoint my loving wife Mary Belt, and the above named Jeremiah Belt, to administer, and be equally whole and sole executors of this my last will and testament; and I do hereby revoke, make void all other wills by me made. In witness whereof I have, to this instrument of writing contained in half a sheet of paper, set my hand and seal this 15th day of October, 1750,
    JERE. BEET.” (ii. S.)
    [The will was «signed, sealed, published and declared, by the said Jere. Belt, to be his last will and testa* merit, in presence of” three witnesses, two of whom proved the said will on the 23d of November, 1768. j
    
      It is further admitted, that Jeremiah Belt, youngest son of Col, Joseph Belt, the devisee in the said will named, did survive Mary Belt, the wife of the testator; and that on her death he became possessed of the said lands according to the said devise, claiming to hold the same as in fee, and continued, and always remained in possession thereof as aforesaid, till the time of his death, which happened some time in the year 1787. That the defendants claim under Jeremiah Melt, the devisee; and that the said Jeremiah Belt, the devisee, and those claiming under him, have been in possession of the said lands as aforesaid froth the year 1770; and that during that period, there vas no legal disability arising from the exceptions contained in the act of limitations on the part of the lessor of the plaintiff, or those under whom he claims, from instituting suits for the recovery of the said lands, if they had been so inclined.
    It is also admitted, that fhe lessor of the plaintiff is heir at law to the testator Jeremiah Belt, being the son of John, who was the eldest son of Col. Joseph Belt.
    
    Th1' sole question submitted to the court on the whole Case stated is, whether on the points oflaw arising thereon judgment shall be entered for fhe plaintiff or defendants.
    
      Ridgehj, for plaintiff, (J. Belt’s Lessee.)
    
      Sprigg, for defendants, (F. 8f T. Belt.J
    
    The Generar Court, (Chase, J. alone) gave judgment on the case stated for the plaintiff for possession and costs.
    
      The defendants brought a writ of error, and the casé was removed to the court of appeals, and came on and was argued in that court at November term 1799.
    
      Key and Sprigg, for the plaintiffs in error, 
    
    
      Ridgely, for the defendant in error.
    The question now before the court for their decision, arises, on a writ of error, brought for the purpose of reversing a judgment rendered in the general court, on a case stated and agreed to by the parties. If therefore this court, which is the ultimate resort for the decision of all questions of law arising in our courts of justice, should, upon a full consideration of the case, be of opinion that the judgment of the general court given in the present case is erroneous and contrary to law, then the plaintiffs in error must succeed, and that judgment be reversed and set aside,* but if, on the contrary, your honours should accord with the general court in opinion, then the defondant in error will have that judgment aSirmed which, on a full and fair investigation of the subject, he obtained in the court below,
    The contending parties in this case are, on the one part, the heir at law, claiming the inheritance of his ancestor, ás his birth right, on the other part, á devisee, claiming imder the last will of that ancestor, in exclusion of the heir at law, and to his total disinheritance.
    The decision of this point will depend on the intention of the testator, manifested in his last will and testament, and that intention is to be collected from the words of the will itself.
    The facts, as stated upon the record and proceedings, are briefly as follow: Jeremiah Belt, the testator, made his will in the year 17SO, wherein lie made a disposition of the lands in dispute, of which he was seised in fee, to his nephew Jeremiah Belt, in the words of the will.
    The plaintiffs in error contend, that by the words of the will, Jeremiah Belt, the devisee, took an estate in fee„
    The defendant in error contends, that hetook only an estate for life under the will, and the reversion not being disposed of, on the contingency of his living quietly to possess these landswhich event took place, and not being disposed of by the will, the lands descended, after his death, to the heir at law of the testator.
    To determine correctly upon this case, we must advert to general maxims, which have been adopted by the unanimous consent of our courts respecting the construction of last wills and testaments,* for it is. by applying general rules to particular cases that we attain, with the greatest certainty, the truth, and escape those errors into which we might be otherwise led, either by the ingenuity of counsel, or by an indiscriminate application of cases not applicable to the one under deliberation. Some of these maxims I will recapitulate, and apply them, to the case now before the court.
    It is undeniably established by the decisions of our courts, as a rule, that an heir at law sh^ll not be disinherited but by the plain intention of the devisor. — 2 T. R. 225, Vessey vs. Wilkinson. Words tending to disinherit the heir at law will not prevent his taking unless the estate is given to some other person. — Bougl. 734. “It is a clear rule, that there must be express words, or a necessary implication, to disinherittheheirat law.” — Per Lord chief justice De Grey, in Frogmorton, on the demise of Wright vs. Wright & Kershaw. 3 Wils. 418. Vaugh. 262. In 3 Burr. 1634, per Lord Mansfield,, “A court of justice may construe a will; and, from what is expressed, necessarily imply an intent not particularly specified in words; but we cannot, from arbitrary conjecture, though founded upon the highest degree of probability, add to a will, or supply the omissions;” and he then cites the case of Bellasis vs. Urthwaite, and others, 11 Feb, 1737-8, in which Lord Hardwicke, though generally liberal in construing the intent of testators, would not supply a contingency omitted in the most favourable case that could exist.
    In this case then, if the court cannot find words in the will sufficient in law to give the devisee a fee in the lands in dispute, they must say he took an estate for life only, although they should themselves believe that the interntion of the devisor was otherwise.
    Our claiming as heir at law should not prejudice our case, for as rishnrst, justice, observes in his argument in the case in 2 T. R. 225, “This is a chance given to the heir at law. He has a right to take advantage of the slips and omissions in a will, and we cannot take it from him.”
    In animadverting upon the words of this will, I shall apply these maxims or rules to the present case, and in so doing I hope to remove all doubt as to the legality of the judgment rendered by the court below.
    It must be conceded, that if the testator had made no disposition of these lands in his will, the estate in them would have vested in the defendant in error, as his heir at law; and it is equally clear, that this Will can operate no further, to the exclusion of the heir at law, than the words in it import; the intention of the testator being, to be collected from them only, and not from suppositions and conjectures, however plausible they may be. It is only in the power of this court to expound the will of the testator; it cannot make one for him. On a fair exposiüon of the contents of the one now under considerate-on, it will be found that the testator devised a life estate only in the lands in dispute, to his nephew Jeremiah Self under whom the plaintiffs in error claim. The law, in a conveyance of real estates, requires words of limitation in the donation or grant, for the creation of a fee. At common law, no man can create a fee by conveyance without the word “ heirs”
    
    When wills were introduced, they were considered as a species of conveyance to be governed by the same E*ules; and if there be no words of limitation added, nor words of perpetuity annexed, a devisee can only take an estate for life — -Cowp. 306. In deeds, words of limitation are indispensably necessary to pass an estate of inheritance; and no circumlocution is admissible, or sufficient in them, to transfer an estate in fee, without the word « heirs.” In wills' the rule is not so rigid, and a greater latitude is allowed, because the party is supposed to be inops conciliv, as for example, the words “ I give Biackacre to Á. forever,” will pass afee, the word “forever” being a word of perpetuity} but still there is no case to be found where the words of a devise, importing an estate for life, have been construed to give a fee.
    
    This will, even, in its preamble, does not indicate an intention in the testator to dispose of all Ms worldly estofe, which is usually premised when that is the case. From the expressions he S¡as used. It is to be inferred that lie meant, at all events, to dispose of the whole of his personal estate; an intention carried into effect ia the latter clauses of Ins will. But there is no intention declared or evinced by him to dispose of Ms whole real estate at all events''whatever. And this court will not presume that which does not appear, for the purpose of ex-' chiding the heir at law, In v»rhose favour, on the contrary, every presumption ought and is to be made. In the second clause in this will the testator gives to Edward Talbot a tract of land called Belt’s Tomohawlq but if he should die before him, then he gives to Talbot’s eldest son, living at the time of his (the testator’s) death. The counsel for the plaintiffs in error must admit that this is lint a devise for life. That clause, and the one in favour 'of Jeremiah Belt, are not couched in the same terms, verbatim et literatim; but, upon fair construction, they contain only the same extent of donation, and the same meaning, viz. that Jeremiah Belt should enjoy the lands devised to him for life, in the same manner as Talbot should; for there is no condition or limitation coupled with the event of Ms living to enjoy them.
    
    In the next clause he gives to his wife all the rest of his estate, real and personal, during her natural life; and then he uses these words: «I give and bequeath to Jere» “ miah Belt, &c. &c. to quietly possess these lands after « the death of my wife, and not before; and if the said “ Jeremiah Belt should die before he comes to enjoy the “ lands before mentioned, then they shall be the right of “ his eldest son,” &c.
    What is the meaning of this clause? It is that Jeremiah should enjoy these lands after the death of the testator’s widow. Suppose the clause had stopped at the end of these words, surely there was but an estate for life devised to him, there being no words implying an intention in the testator to give him a greater estate.
    All that it is incumbent on us now to shew, in support of our case is, that the contingency on whichthe lands were limited over, and the heir at law to he disinherited, never did happen„ Jeremiah Belt, the deviqee, did not die before the widow, but according to the words of the will, be lived and quietly possessed these lands after her death, as is admitted in the case stated; then the contingency did not happen, and the limitations over fail. That our construction is correct, is apparent from the will itself. The testator does not, after the devise to Jeremiah, proceed on and say, that from and after his death the lands shall go to his hpirs, neither does his will contain any words which express, or from which can be implied, that such was his intention. It contains no disposition of this estate after the death of Jeremiah, provided he lived to enjoy it. If if had been the testator’s intention that the heirs of Jeremiah should inherit, after his living to possess the lands according to the tenor of the will, he would surely have expressed himself so as to have given effect to his intention. He lias at all events omitted to do so; mi omission which this court cannot supply, even were the supposition founded on the highest degree of probability; for if it should undertake to do so, it would add a clause to the will which at present it does not contain.
    But it has been contended that the words “to them and their heirs and assigns for ever,” at the conclusion of this clause in the will, relate to Jeremiah Belt, as well as to the other persons who were to take, upon the event of his. dying before he came to possess the estate.
    It is a general rule and maxim, which has been laid down by courts of justice, as well in the case of wills as of all other common assurances, by which title to lands and tenements may be transferred and conveyed from one man to another, “that the construction be ‘•'made upon the entire deed, and not merely upon disjointed parts of it; and therefore, that every par* of it “be (if possible) made to take effect; and no v hut ««what may operate in some shape or other. 2 Bl. Com. 380. 1 Bl. Rep. 377, 1 P. Wms. 457, Butler vs. Duncomb.
    
    Let ns see if these words cannot be properly gratified without applying them to Jeremiah Belt the devisee. They certainly can; and it may be farther asserted, that In applying them to him, a strained construction is giv<» en to them which violates every rale of grammar.
    For argument sake we will make them apply to that ¡part of this clause in the will which give Jeremiah Belt the lands, and admit, that by force of those words he acquired a fee after the death of the testator9.? widow» Then this absurd consequence follows; that the following» or subsequent parts of the. ciarse, devising to his eldest sou Bichará, to his second, &c. &c. are nugatory and atinewees ary» For if Jeremiah had the fee, there was no necessity of devising to his eldest son an estate which he would have inherited as heir to his fatlie*’. Suppose that Jeremiah had died intestate after the devise in his favour took effect, and that his eldest son Michard, also had died before he was twenty-one year.? of age, leaving issue; who would have taken this estate if the consireqfcion contended for is adjudged to be legal and correef? Not the second son of Jeremiah, but the Issue of Michard, his eldest son. The counsel for the plaintiffs in error must admit that this would be the inevitable consequence of the doctrine they contend for. Give Jcre= miah a fee, on the event of his living to possess the lands after the widow’s death, and all the subsequent limitations in the will, upon Ms surviving her, are at an end. Then the issue of his eldest son would, in the case 1 have put, be preferred, upon the same principle we now urge in favour of the heir at law of the testator. Let us now advert to the. will and ask, was this the intention of the testator, that these lands, upon the death of Michard, before he was twenty-one years of age» should not go over to his brother? Docs he not expressly direct that they should? How is this to be reconciled with the doctrine contended for on the other side, that Jeremiah Belt, and his heirs, had an unlimited fee after the widow’s death, and might dispose of it as be pleased. But when we look at this will, we find a very material difference in the language used by the devisor, •when giving to Jeremiah, and when to the others:— ««I give and bequeath to Jeremiah, &c. to quietly possess, &c„ But if lie die before, &c. then they shall he eeths right of hio first son, &c. Jhul if he die before be ««comes to the age of twenty-one years, then the lands ««before mentioned, to be the riglst of the second sen, «*&■(!» énd if he should die Mbs-® be comes to the ag* of “twenty-one years, then all the right, of all the lands be“fore mentioned, to be the eldest son of Col. Joseph Bell, ({*L° and their heirs and assigns, forever.”
    “all the right,” would convey a fee, as well as «all my estate.” When limiting to his last devisee, he uses the expression, “all the right of all the lands before mentioned to be the eldest son of Col. Joseph Belt, to them, and “their heirs and assigns, forever.” I contend that, as it is evident it was the testator’s intention to give a fee to the eldest son of Col. Joseph Belt, the words “to them, and their heirs and assigns, forever,” can only with propriety be applied to his issue, and their heirs. The legal, as well as the common grammatical rule of construction is this — “ad proximnm antecedens fiat relatio>•” in construction, “words shall relate to the first antecedent.” Yet admit for a moment that these words are not to be confined to the last part of this clause in the will, how far back shall they relate? Only this far back, giving them their greatest latitude of “intendment.” viz. If Richard Belt lived to arrive at the age of twenty-one years, lie should then have a fee. Then in no possible case and by no rule, can they be made to apply to Jeremiah Belt, for whether be lived to be twenty-one or not, it made no difference. Again, if they are applicable to Jeremiah why not extend them to Edward Talbot?
    
    The following authority is a case in point, and the court I hope will be of the same opinion with judge Wilmot, who in 2 Wits. 324, Dodson vs. Green an others, justly observes — “cases in the books, upon wills, “have no great weight with me unless they are exactly “in the very point.” The book I allude to, is Com. Rep. 353. “I give to my wife Jane, all my freehold lands in “A. and I give to my son George, my freehold lands in “B. after my wife's decease; and if it shall happen that “my son George should die before he attains twenty-one “years of age, then the lands shall go over.” The court said — “here is no devise to the heir of George, and “no one shall take without an express devise to him.”
    
    This case is similar to my client’s. It is, as lord chief justice Wilmot says, “exactly ir the very point.” In the first part of my argument É laid down soma general rules, as I promised I would- — these, when applied to the case before the court, shew the correctness and legality of the judgment below, In such strong colours, that they remove all difficulty as to the confirmation of it. The case cited from 2 T. B. 225. Vssssy vs. Wilkinson and others, is shortly this — -Whether, by tbe event of John Wall's surviving the testatrix, tbe whole subsequent part of the will, as to the remainder in fee, Ik came void? The court were of opinion that it dido So In this, our case, the true question is, whether, by the event of Jeremiah Belt’s surviving the wife of the testator, the remaining parts of this clause in the will, as to the remainders in fee, have not become void?
    The argument of Mr. Justice ,Rshhurst, In this case, in which he and Mr. Justice Grose, differed in opinion with Mr. Justice Buller, is at once elaborate and convincing! and I will call the attention of the court particularly to it. ■ I will now only refer to some-other authorities, and. conclude my argument. In 12 Mod. 597, this is the doctrine recognized by the court. Where words in a will may be satisfied without carrying an estate from the heir at law, they shall never be construed to disinherit him at all, by any implications, but such as are necessary, and without which the words would be rejected as void, and of no signification or sense.
    
    Surely in this case the will of the testator can be gratified without applying the words «‘to them, and their heirs and assigns forever,” to Jeremiah Belt.
    
    Again, in the case cited fey Lord Mansfield, in his argument in the case of Chapman vs. Brown et al. and decided by Lord Chancellor Hardwicke, where “a mother “devised her real and personal estate to her daughter, ««(an only child) and if she died before she was of age to ««dispose thereof, then devised it over. The daughter ««lived to be married, and died leaving a daughter, between 20 and 21. Lord Hardwicke decreed for the devisee over, as to the real estate.” 3 Burr. 1634.
    
      
      
         Their arguments have not been procured.
    
   The Court oe Appears at Nov. term, 1799, affirmed the judgment of-the general court. Mdckall, J. dissentiente0  