
    Michael A. French vs. William H. Campbell et al.
    Equity. No. 6,628.
    ( Decided March 26, 1883.
    
      i The Chief Justice and Justices Hagner and Cox sitting.
    A general devise over after the creation, of a life estate in the same property will pass the fee.
    STATEMENT OE THE'CASE.
    The bill'in this case was filed to remove a cloud upon the -complainant’s title and obtain a construction of the will of Mary French. At the hearing below a decree was passed . divesting the defendants of all claim or title to the property in question, and investing Michael A. French with the title in fee simple. The question before the court was whether the complainant took a life estate or a fee simple, under the following will:
    “ I, Mary French, of the city of Washington and District of Columbia, being of sound mind and disposing memory, calling to mind the uncertainty of life and the certainty of death, and wishing to make proper arrangements with reference to the property of which I am possessed, do make, •ordain and publish this as my last will and testament.
    “ I request that my executor, hereinafter named, shall have my body decently, though plainly, interred, and that a plain marble headstone be placed at the head of my grave, with a suitable inscription thereon, to mark the place where my mortal remains repose.
    “ I request that my funeral expenses and just debts be paid ■so soon after my decease as possible.
    “ 1 give and bequeath into Michael A. French, the house and lot on 8th street, being part of lot No. 4, in square No. 425, the same I purchased from Aza Gladman.
    “I give and bequeath unto my husband, Thomas French, during his natural life, the houses and lot numbered 7, in ■square 403, being the same that was conveyed by Clement Cox and wife to Lewis Edwards, as trustee for Mary French, by deed bearing date the 7th day of May, 1838, the said property aforesaid lying and being in the city of Washington.
    “This bequest to my husband, Thomas French, is.with this limitation and restriction ; that is, if the said Thomas French shall again intermarry, then his interest in said property is to cease, and the benefits and interest thereof are to-go to Michael A. French.
    “ Upon the decease of the said Thomas French, or if he shall marry again, I give and bequeath the said lot No. 7 in square 403 to the said Michael A. French.
    “I hereby appoint my friend, French S. Evans, executor of this, my last will and testament.”
    Bradley & Duvall for complainants :
    It is a fundamental maxim upon which the construction of every will must depend that the intention of the testator,, as disclosed by the will, shall be fully carried into effect if it be not in contradiction of some established rule of law. This intention must be drawn from the whole context of the will. And it is not necessary to look alone at the words of the gift itself to ascertain the intention as to the quantum of the estate devised, if it can be gathered from expressions used in any part of it, what he supposed or intended to be the nature and extent of it. That words of inheritance are necessary to convey a fee is certainly a good, general rule of the common law ; but, in the case of wills, it is entirely subordinate to expressions of the testator’s intention. The statute respecting wills allows men to dispose of their lands not by any technical terms, but at their will and pleasure. Abbot vs. Essex Co., 18 How., 202, 215; Smith vs. Bell, 6 Pet., 68, 75; Lambert’s Lessee vs. Paine, 3 Cr., 47.
    The intention is to be gathered.from the “whole context,” the “ four corners,” of the will. The introductory clause, or preamble, as it is sometimes called, has always been considered in manifesting the intention, it has been designated the key of that intention ; and from the earliest reported cases, where the introductory clause expresses an intention to dispose of the whole of testator’s estate, the courts have brought this clause down and coupled it with the devise, where the words of the devise admit of passing a greater estate than for life, to assist in ascertaining the intention. Kennon vs. McRoberts, 1 Wash., 96, 100; Wright vs. Dunn, 10 Wheat., 204; Burwell vs. Mandeville’s Execr., 2 How., 560, 577; Finley vs. King, 3 Pet., 346, 378; McConn vs. Lay, 5 Cr. C. C., 548; Schriver vs. Meyer, 19 Pa. St., 87; Fogg vs. Clark, 1 N. H., 163; Doe vs. Haiter, 7 Blackf’d, 488.
    The language used by the testatrix in the case at bar in the introductory clause of her will is : “ Wishing to make proper arrangements with reference to the property of which I am possessed ; ” and in the devise itself, after limiting a life estate to her husband, Thomas : “ If the said Thomas French shall again intermarry, then his interest in said property is to cease, and the benefits and interest thereof are to-go to Michael A. French. Upon the decease of said Thomas,, or if he shall marry again, I give and bequeath the said lot No. 7, in square 403, to the said Michael A. French.” It will be observed that the testatrix knew how to give a life-estate if she intended only that estate to pass to complainant.
    The words “pr-operty ” and “interest,” like the ‘-'estate,”' will pass a fee. 2 Jarman (4th edition), 133, note, 140-41; Pitman vs. Stevens, 15 East, 505; Pearson vs. Housel, 17 Johns., 281; Burwell vs. Mandeville’s Ex’r, 2 How., at 577, 578; Andrew vs. Southouse, 5 Term R., 292.
    Again, it is very common to construe what seems a life estate in terms, to create a fee in remainder, because of a prior life estate having been expressly created in another in regard to the same property. Chief Justice Shaw denominates this a rule of construction, and says the presumption'' is that such devise was, in the mind of the testator, a final-disposition of that part of his estate, and to effect that purpose it must be a fee. Plimpton vs. Plimpton, 12 Cush., 458, 463; Motzer vs. Cassin, 2310 Equity, S. C. D. C.; 1 Redf. Wills, 466; Butler vs. Little, 3 Greenlf., 239; Cook vs. Holmes, 11 Mass., 528; Butler vs. Butler, Wash. Law Reporter, Dec, 8, 1882, Vol. X, No. 49; 2 Jarman on Wills, (4th edition) 189; 2 Washburne Real Prop., 752.
    
      'We submit, then, that the court below properly construed this devise to carry the fee to complainant ; that such was the intention of the testatrix, and that such intention can not only be extracted from her words with reasonable certainty in view of the whole will, and that no other reasonable intention can be imputed to her.
    Wm. F. Mattingly and J. J. Johnson for defendants:
    The introductory words of this will are relied upon to enlarge the estate of the devisee from a life estate to a fee.
    In the first place, it is to be noted that the introductory words in this will do not manifest any intention on the part of the testatrix to dispose of her entire estate ; and the language of the will itself shows that she did not dispose of her personal estate. It is to be presumed from the face of the will that she had personal estate, for she directs her executor to have her buried, and to place a marble headstone at the head of her grave, and directs that her funeral"expenses and just debts be paid as soon as possible.
    The introductory words are : “ And wishing to make proper arrangements with reference to the property of which I am possessed.”
    The devisee, Michael A. French, was her step-son, being the son of her husband by a previous wife.
    Is any one to say that testatrix did not consider it proper arrangement to give her husband an estate for life in this lot. or so long as he remained unmarried, and upon his death or marriage that his son should have it during his life ?
    The law favors the heir-at-law, and he is to be disinherited only by an express devise with words of limitation, or by necessary implication. The conceded rule of interpretation is that a general devise, without words of limitation, passes but a life estate, notwithstanding a previous devise of a life estate in the same property.
    The rule as to the office of introductory words in a will is as stated by Chancellor Kent, [4 Kent, 541, n. 1]. He says :
    
      “ Introductory words to a will cannot vary the construction so as to enlarge the estate to a fee, unless there be words in the devise itself sufficient to carry the interest; such introductory words are like a preamble to a statute, to be used only as a key to disclose the testator’s meaning.”
    See also Wright vs. Denn, 10 Wh., 204; Jackson vs. Wells, 9 John., 222; Jackson vs. Bull, 10 John., 148; Beall vs. Holmes, 6 H. & J., 205. [The court in this case refers to all preceding leading cases, and lays down the rule in Maryland. It.is cited and approved by Kent.] 2 Jarman on Wills, 125 [171], 138 [187-8].
   Mr. Chief Justice Cartter

delivered the opinion of the court.

In this case the court have come to the conclusion to affirm the decree below. The case involves the construction of a will, and the question is, whether the complainant takes a fee-simple or a life estate only. The question is not novel in this court. The issue has been once made and determined in an essentially parallel case, in which we came to the conclusion that the language used here conveyed an estate of inheritance. It is contended, however’, that our decision is in conflict with early and repeated decisions both in Great Britain and this country, which have always held that a general devise over, without words of inheritance, after the creation of a prior life estate in the property devised, will pass but a life estate. But, while this may be so, we are constrained to. believe that our judgment is in thorough consonance with good sense and with that principle which pronounces the intention of the testator the supreme and overruling consideration governing the construction of wills. The construction put upon this class of devises in the cases alluded to appears to be in contravention of the rule of construction adopted by the courts in ascertaining the will of the testator, and, marvellously enough, the courts confess it. We might just as well say, following that line of decisions, “although we believe the testatrix designed in this instance to devise an estate of inheritance, we nevertheless decide that the devisee shall not have it because the technical terms of the conveyance do not import it: and although a will, unlike all other conveyances, is not dependent upon technical terms, but such terms are overruled by the intention of the testator, nevertheless we determine that these technical terms shall rule to the suppression of the purpose of the testatrix.” That is what we would be saying if we followed these decisions. Of course it is important that established rules of construction should be preserved, even though it be at the cost of sometimes sacrificing the intention of a testator. But it has always been held that where a rule of judicial interpretation obviously fails to answer the purpose for which it was created and plainly operates in contravention of the intention of the testator, then the rule loses its application. What was the intention of testatrix here ? Did she intend to pass a life estate or an estate of inheritance ? Here is the language :

“ I give and bequeath unto my husband, Thomas French, dui’ing his natural life, the houses and lot numbered 7, in square 403, being the same that was conveyed by Clement Cox and wife to Lewis Edwards, as trustee for Mary French, by deed bearing date the 7th day of May, 1838, the said property aforesaid lying and being in the city of Washington.
“ This bequest to my husband is with this limitation and restriction; that is if the said Thomas French shall again intermarry, then his interest in said property is to cease and the benefits and interests thereof are to go to Michael A. French.”

She put two unmistakable qualifications to the title of Thomas French, one was marriage, and the other death. There can be no mistake about the estate created in his case. It was less than an estate of inheritance, and it left the remainder of the property to pass on to somebody and in some way. Then she proceeds to say that upon the decease of the said Thomas French, or if he shall marry again, she gives and bequeaths the said lot No. 7, in square 403, to Michael A. French.

Now, in an ordinary reading of the English language as estimated by those who speak and write it, the conclusion would be spontaneous that this testatrix intended to give alife estate to Thomas French and an estate of inheritance to Michael A. French. That is the way it would be understood by all laymen. Nobody would hesitate about it a single moment. And still it is claimed that, read in the light of the law, this language means another life estate. Where was it to go then when that had expired ? She had no children. In the ascending line it was to go to collaterals, or their descendants. Now, did she contemplate such a disposition of her property as that ? In our opinion she never intended any such thing. 'That would be simply leaving the disposition of her estate to accident, and would be a mark of want of intention. Whereas the very making of a last will and testament is an ■evidence, of the testator having an intention. We think that this language means that, after.the determination of Thomas French’s life estate in this property, Michael French is to take whatever remains of the estate the testatrix possessed. That is what this court held in a case similar to this, and it has been so held in a like case in Massachusetts, in a very learned and able decision, reported in 12 Cushing. Plimpton vs. Plimpton, 458. That decision alone, if there were no others, ought in my opinion to consecrate so self-evident a rule of reason, especially as against a line of authorities which do not profess that they are following reason but simply precedent.

Mr. Justice Cox,

while concurring in the conclusion of the court, said :

I concur in the conclusion announced by the Chief-Justice* with some hesitation, and on somewhat different grounds from those that have been expressed. A very interesting question in the case was, whether a previous gift of a life estate in a will would justify or require the court to interpret a subsequent devise over of the same estate, expressed in general terms, and without words of limitation, to mean .a fee simple. Now it seems to me that that would be a most reasonable rule of interpretation. I can hardly conceive that a man or a woman would devise a life estate, and then give-the property over generally, intending to give only a subsequent life estate ; and yet I must confess the weight of authority is in favor of the defendant upon this point. In fact there is only one decision, excepting that of this eourt^. on the other side, viz., the decision of Judge Shaw, reported in Cushing. That is a decision of very high authority. It was made a long time ago, and Judge Shaw states it there as if it were a settled rule of interpretation. He says that when there is a previous life estate and then a general devise.afterwards, the latter is to be interpreted as a devise of the-fee simple, and I was prepared to find that rule established by an abundance of authority ; but I should say that the weight of authority is the other way, because there are numerous cases cited both from the English and the American reports strongly in point upon that question, and holding-the opposite of Judge Shaw’s rule. But I believe that in almost every instance, and probably in this case, a general devise by a testator, especially by an illiterate or unlearned, testator, is intended to pass the fee simple ; and I fall in with the inclination of the courts to lay stress upon any other feature in the will which assists in interpreting the general devise in that direction. In this way I think there is language in this will which materially aids the court in coming to the conclusion which has been announced. After-giving the life estate to her husband, the testatrix says that the bequest is with the limitation and restriction that if he shall marry again then his interest in said property is to cease, and the beuefits and interests thereof are to go to Michael A. French. Now, on the part of the defense, it has been contended that this language merely contemplated the continuance of Thomas French’s life estate in Michael A. French; that the terms “benefits and interest thereof,’>■ referred to the life estate of Thomas French, and that that was what she intended to give to Michael A. French in the contingency contemplated. But that cannot be, for this reason : the clause expressly provides that upon the marriage-of Thomas French his interest in the property is to cease* and, therefore, that estate cannot be intended to go over to Michael French. And even an illiterate testator would hardly be guilty of the philological enormity of saying that the interest of Thomas is to cease, and yet that the’“ benefits and interests, thereof” are to go over to Michael. It seems very clear that the terms' “ benefits and interests ”’ apply to the property; that the interest of Thomas in the property is to cease, and then the “ benefits and interests of the property are to go to Michael A. French. What is the meaning of this word “ interest ? ” It has received interpretation over and over again. It means the title ; and if' the testator had said, “I devise my interest in the title of' said property, after the death of Thomas French, to Michael A. French,” it would hardly be stronger than it is here, as-the expression of a wish that the whole title of this property should in a certain contingency go to Michael A. French. I think, therefore, that the provision in this clause is, that, upon the marriage of Thomas French the whole fee simple-interest and title in this property shall go over to Michael. This provision in the will contemplates not merely the contingency of marriage, but also that of death, and it can hardly be contended that the testatrix meant to give a less estate in the case of marriage than in the case of death; The provision is only intended to emphasize and repeat the previous clause, and to extend it to the contingency of death equally with that of marriage. Having already provided for the case of marriage, she then goes on and says that whether he marries again or dies, it is her desire that the property shall go over to Michael A. French on the same terms and in the same state, in case of death, as previously provided for-in case of marriage. Clearly it was not intended to give a less estate in this last case, but the intention was that the property should pass over in the same state exactly as in the-case of marriage, and there is no distinction made between those two contingencies. I look upon the last clause as. obviously a mere repetition of the previous one, and the extension of its provision to the other contingency. So the-fair interpretation of this paper is, that either in the case of the marriage, or of the death of Thomas French, the whole estate shall go over to Michael A. French. It is principally upon this ground that I concur in the conclusion that the intention was to give Michael a fee simple in case .of the 'death or marriage of Thomas French.

Note. — The case referred to in the opinion as having been decided in this court is that of Motzer vs. Cassin, 2310 Equity. It was decided November 2, 1871, but no report of the case has ever been published, nor does it appear that any written opinion was ever hied.- An examination of the record and papers, however, shows the following

The plaintiff', Fanny L. Motzer, hied her bill against William I). Cassin, March 13, 1871, praying a partition of a house and lot in Georgetown, jD. C. She claimed an interest in fee under the will of Ann T. Washington, and the only question before the court was whether a life estate or a fee passed by the will, the material parts of which were as follows:

“ I, Ann T. Washington, of Montgomery County, in the State of Maryland, being of sound and disposing mind, memory and understanding, considering the certainty of death and the uncertainty of the time thereof, and being desirous to settle my world (sic) affairs, and thereby be the better prepared to leave this world, &c., * * * devise and bequeath as follows :

“I give and bequeath unto my son, Lewis W. Washington, of Jefferson County, Virginia, during the minority of his children, James, Mary Ann, and Eliza B. B. Washington, the farm whereon I now reside, called * Green hill,» together with furniture in the house and kitchen, stock farming implements, and all other personal effects being thereon, and after the said children have attained, the said James to the age of twenty-one, and the said Mary Ann and Eliza B. B. to the age of eighteen years, I give and bequeath unto them, share and share alike, the farm, household furniture, stock and other personal effects hereinbefore named^ their heirs and assigns forever. * * * *

“I give and bequeath to my neice, Fannie Moutzer, wife ■of the Rev. Danl. Moutzer, her heirs and assigns forever, a •certain lot or portion of ground lying in the city of Washington, and on the street leading from the avenue to National Observatory.

[The following is the clause under which plaintiff claimed:]

“ I give and bequeath unto my sister, Mary Petei’, during her lifetime, my house and lot, and the furniture in said house lying and being on the corner of Dunbarton and Congress streets, in Georgetown, and after the death of my said sister, I bequeath the furniture in the said house to my said neice, Fannie Moutzer, aud the house and lot before named, share and share alike, to my said son, Lewis W. Washington, Fannie Moutzer, James, John and William Cassin.

“ I further devise and bequeath to my said sister, Mary Peter, during her life, my negro woman, Christine, and after her death, I will and desire the said Christine to be free from all manner of seíwice or servitude to me, my heirs and assigns forever.

“ I also give and bequeath unto the hereinbefore named James Washington, Christine’s youngest child, aged two years, to him, his heirs and assigns forever.”

The court in special term passed a decree dismissing the bill, on the ground that the plaintiff was entitled only to a life estate in the property. From this decree an appeal was taken to the General Term, where the following decree was passed :

“This cause came on to be heard on appeal from the Equity Court upon the bill, answer and exhibits, and was argued by counsel; on consideration whereof, the court is of opinion that Fanny L. Motzer, Lewis W. Washington, James, John and William' D. Cassin take a fee simple under the will of Mrs. Ann T. Washington, deceased, in the property mentioned in the devise. It is thereupon ordered, adjudged and decreed, that the decree of the Equity Court dismissing the complainant’s bill upon the ground that she was entitled to only a life interest in the said property be, and the same is hereby reversed and set aside.”  