
    Shermer v. Shermer’s Executors.
    October Term, 1794.
    [1 Am. Dec. 460.]
    Wills — Devise to Wife for Life with Power of Appointment — Effect—Case at Bar, — The testator devises the whole of his estate to his wife during- her life, and after that is ended, then to be equally divided between whoever his wife should think proper to make her heir or heirs, and his brother R. S. The wife died without making any appointment. She took a fee simple in the moiety, which descended, after her death, to her heir at law.
    This was an appeal from a decree of the High Court of Chancery. The case was this; John Shermer, by his will, devised to his wife the use and profits of his whole estate, both real and personal, during her natural life, and after that was ended, then the whole of his estate, exclusive of that already given to his wife, to be equally divided between whoever his wife , should think proper to make her heir, or heirs, and his brother Richard Shermer. He further directed, that his executors, as soon as the crops were finished after his wife’s death, should sell and dispose of his whole estate, real and personal, as they might think most conducive to the receiver’s benefit.
    The wife died in 1775, a few days after the testator, without making any disposition, or appointment of her part of the estate. The executors sold the estate, agreeably to the will, and distributed one moiety thereof, amongst the relations of Mrs. Shermer; for the recovery of which, this suit was brought against the executors and distributees, by the present appellant, the son, heir and executor of Richard Shermer, the brother named in the will. It is proved that the testator frequently said, he would leave his wife one half of his estate, to dispose of as she should please, and that most of his estate was acquired by his intermarriage with her. Upon a hearing of the cause the bill was dismissed, from which this appeal was prayed.
    Ronold for the appellant.
    The principle upon which the appellant’s claim is founded, is so fully explained, and so conclusively «settled in the case of Tomlinson and Dyghton, 1 P. Wms. 149. that it is unnecessary to add any thing to it.
    Marshall for the appellee.
    The devise to Mrs. Shermer, was intended to pass to her, the whole interest and absolute ownership in the moiety, given to her appointed heir. In last wills, it is not necessary' that the testator should use technical words, in order to pass a fee; for however inartificially he may express-himself, yet ■ if his intention can be discovered to mean a disposition of his whole interest in the thing devised, the court will supply such words, as may be necessary to effectuate that intention. Thus, if the devise had been to the wife, to dispose of as she pleased, she would most unquestionably have been entitled to the fee simple, because such a power is the eminent quality of such an estate. But the case of Tomlinson and Dyghton is relied upon, to establish this principle, viz: that where an express estate for life is given, it cannot be enlarged by words of implication, tho’ if the estate had been given generally, it might be otherwise. I shall contend 1st, that the principle is not true, and 2dly, if it were, still the case itself is not like the present.
    1st, The principle is fully contradicted by the case of King and Melling, 1 Venir. 214, and the great variety of cases there cited. Langly and Baldwin 1 Eq. Cas. Ab. 185. —Blackbourn and Bdgley 1 P. Wms. 605. --The Attorney General v. Sutton, 1 P. Wms. 754. These cases clearly prove, that an express estate for life, may be enlarged by words of implication, if the testator’s intention require it. The case Tomlinson and Dyghton is consequently founded upon a mistaken principle, and ought not to be regarded.
    But 2dly, If that case be law, it is unlike the present. In that, the power of disposing is limited to particular children; in this, it is to the heirs general. The dis-, tinguishing feature of a fee simple estate, is consequently discernible in this case, and not in that. Again — in that case, as well as in that cited from 3 Leon. 71,- the wife having made an appointment, the intention of the testator could not be frustrated, and consequently, the question, turning merely upon the validity of the appointment, the nature, or extent of the wife’s estate, was a point only incidentally decided, and therefore, the opinion as to that point, ought not to be considered as a binding authority. Again; it will not be denied but that if an express estate for life had not been given to the wife, the latter words, would have enlarged the estate into a fee simple. In this case, the court, to effectuate *the intention of the testator, will consider the life estate given to the wife, as applying, not to her moiety, but to the moiety, which after her death is devised to the brother, and this will materially distinguish the present case, from that of Tomlinson and Dyghton, & will bring it precisely within that part of the rule laid down by the court, which makes the estate to the wife a fee simple.
    Washington in reply.
    The case of Tom-linson and Dyghton, and the cases there cited, from 3 Leon. 71 & 1 Mad. 189, are so conclusive upon the point now under consideration, that it can only be necessary lor me, to shew that the objections made to them are not well founded. Those cases are built upon this well established principle of the common law, viz: that an heir shall never be disinherited by implication, nor by words of uncertain and doubtful meaning. In last wills, an estate of inheritance is permitted to pass, by other words than those artificially appropriated to that purpose; but it is intention only, which governs in such a case; and where that intention can be clearly discovered, the court will give such a construction to the words, however inapt they may be, as will fulfill that intention. Thus in the case of Langly and Baldwin, the testator declared an intention, in one part of his will, to give an estate for life only; but it was equally clear, that he meant all the sons of the tenant for life to take estates tail in succession, before the limitations over were to take effect. But the 7th and other sons would not by the rules of law, come into the succession, if the ancestor took only an estate for Ufe; because, where the ancestor takes an estate for life, the heirs, or issue, by such names, cannot take as purchasers. So is Shelleys case — here then, are two contending intentions, both of them equally clear, tho’ depending upon different claims for fulfillment. A provision for all the children, was more likely to be the favorite intention of the testator, than the nature, or quantity oí the estate to be enjoyed by the ancestor. How then, ask the court, is this prevailing intention to be effectuated? The answer is, by uniting the estate for life with that arising by implication, and thus enlarging that estate into an inheritance; by which means only, the whole issue could be provided for. By such refinements, do the judges govern themselves in cases of that sort, and thus ingenious are they in inventing some subtle mode or other for carrying into effect the will of dead men. They metamorphose an estate for life, into an estate of inheritance, to promote this primary object, but not otherwise. It is necessity only, which could justify it, since if this necessity did not require it, such ^refinements would amount to the making, not to the construing of wills. So too, in the case of the Attorney General v. Sutton, founded upon the same principle with that just spoken of; except that in this, if all the issue had been provided for, yet the court must have decided as they did; because, from two clauses in the will, (mentioned in a note in the last edition of P. Wms.) the testator expresses his intention to give an estate tail, in words too plain to be misunderstood. But the court never will convert an express estate for life, into an estate of inheritance, by words of implication, unless compelled to do so by absolute necessity ; that is, where the intention is in the first place clear, and not merely a doubtful, or possible intention ; and secondly where that intention cannot otherwise be effectuated. This is the principle, upon which I rely; it is laid down in all the cases, and controverted in none. Those cited upon the other side prove it, and it is the very principle, upon which they are decided. Tomlinson and Dyghton does not oppose, but on the contrary supports it, and yet it seems to have been supposed by Mr. Marshall, that the judge declared, “that an express estate for life could not be enlarged by implication.” Taking it as a thing granted, that this position was there asserted, he proceeds to prove its fallacy, by citing Langly and Baldwin, and the other cases relied upon for this purpose. But these cases, tho’ they contradict the supposed case of Tomlinson and Dyghton, are entirely consistent with that case, as it really is. The Chancellor there says, “that where an express estate for life is given, with a power to dispose, the latter words, shall not by implication enlarge the former, into an estate of inheritance, but they shall be considered as a distinct gift, and as coming in by way of addition.” Now the difference between that, which the judge is supposed to say, and that which he actually says, is obvious. An express estate for life may be enlarged by words of implication, if by no other means the testator’s intention can be complied with, and therefore, in I/angly and Baldwin, it was done, because there was no other way to effectuate the intention ; because, if the 7th and other sons could not take by descent, it was supposed they could not take át all: but they were clearly intended to take; therefore from necessity, the ancestor took an estate of inheritance. But in the case of Tomlin-son and Dyghton, the children of the testator might take by purchase, without doing this violence to the plain words of the will. Therefore no necessity existed, for enlarging the estate for life, by words of implication, for in that case, the wife *might, by exercising the power of appointment given to her, make the children take as purchasers. So upon this principle, the case before the court, and all others, where a power of appointment is annexed to the express estate for life, will be found to differ, from cases, where the issue are let in under words of implication, enlarging the estate for life into an estate of inheritance.
    The next question is, does the case of Tomlinson and Dyghton differ from the present? The restriction of the power to dispose in that case, is noticed in the argument, and differs from this thus far only, that if that passed a greater estate than for life, it was a conditional fee, this an absolute one: if that only gave a power to dispose, it was a limited one, this is unlimited. But as to intention, there is no difference. The testator might as well intend the one, as the other, and both are equally distinguished by the marks of ownership, if there exist any in either. But it is contended, that in that case, the wife had made an appointment, and therefore, as to the dther point, it was merely an obiter decision. But it is evident, that this was a material point in the cause, for if the wife took an estate in fee, it was unnecessary to decide the validity of the appointment, and therefore, this was a previous and important subject of consideration.
    The last argument relied upon is, that the court to effectuate the testator’s intention, Will construe the express estate for life in this case, as applying only to the moiety, which after the wife’s death, is given to the brother, and not to the other moiety devised to her appointed heir; and upon this difference, it is supposed, that the case of Tomlinson and Dyghton, does not apply. This argument tho’ specious, has no solidity when examined; for, I ask, where is that intention, which, without resorting to the construction contended for, will be defeated? What is the intention? To give an estate for life, for so are the express-words of the will; in the next place, to-limit the inheritance to the person, whom, the wife should appoint. No person can. doubt, but that this was the intention, because the words are too plain to be misunderstood. There is no room left for' construction, where there is no ambiguity in the expression. But, can'this intention,, so expressed, be no otherwise effectuated,, than by converting the life estate into a: fee? If it cannot, then I admit it must be' done, and greater concessions ought not to1 be required, since all the cases, cited against us, shew, that this bold attack upon the plain words of the testator, can only be warranted, where otherwise, the intention would be entirely ^defeated. To the question, I answer, let the wife take an estate for life; let her exercise the power of appointing her heir or heirs; let such heir cr heirs take the inheritance, and then the testator’s intention is fulfilled. Is not this what we contend for? and cannot all this be done, consistently with the rules of law? where then, is the necessity of giving the wife a fee? The heirs could have taken if she had chosen to name them, and if she' did not chuse, but preferred leaving the estate to descend, where the law would cast it, it cannot alter the case, or make the intention of the testator mean, what was not meant when that intention was expressed. That intention, was either to give a power,, or a beneficial interest to the wife in the-inheritance, and this court, will decide at this day, as they would have done, had the question come on the moment after the testator’s death. One would suppose, from the argument on the other side, that the heirs of the wife could not possibly take, unless the wife was construed to take a fee, and that the court were struggling to invent some mode, or other, to prevent this violence from being done to the testator’s intention. Whereas, there is nothing more in the case, than that the wife has either neglected, or not chosen to exercise the power she had, and therefore, this attempt is made, in order to repair the consequences of this omission, by sacrificing to that end, the established principles of law.
    There are some expressions in this will, not unworthy of notice, as tending to furnish additional proof of the intention. — He gives to the wife, the use and profits of his estate for life, and says, “and after this is ended” &c. Now these words strike me to be as strong as the words and no longer, in Target and Gant, 10 Mod. 402. Again, the devise, is not of the estate itself, but of the use and profits for life, which is another strong evidence of intention.
    
      
      Wills — Devised to Wife for Life with Power of Appointment — Effect.—The principal case is reported in Wythe 159. In Goodwyn v. Taylor, 4 Call 308. the principal case is cited for the proposition that the power of unlimited disposition gives to the first taker an absolute fee. See also, Robinson v. Brock, 1 Hen. & M. 333; Cheshire v. Purcell, 11 Gratt. 773; foot-note to Missionary Society v. Calvert, 33 Gratt. 357; Cole v. Cole, 79 Va. 353; Miller v. Pot-terfield, 86 Va. 878,'ll S. E. Rep. 486; Parish v. Way-man, 91 Va. 435, 31 S. E. Rep. 810; Lee v. Law, 1 Va. Dec. 815; Milhollen v. Rice, 13 W. Va. 559, 531, 533, 533, 535, 543, 560; Wilmoth v. Wilmoth, 34 W. Va. 430, 13 S. E. Rep. 733; Bank v. Green, 45 W. Va. 176, 31 S. E. Rep. 363; 1 Va. Daw Reg. 220.
      Same — Construction—Intention.—On this . subject, tbe principal case is cited in Ambler v. Norton, 4 Hen. & M. 44; Minnis v. Aylett, 1 Wash. 302; Miars v. Bed-good, 9 Leigh 375: Robinsons v. Allen, 11 Gratt. 788; Williamson v. Coalter, 14 Gratt. 399; Randolph v. Wright, 81 Va. 615; Bartlett v. Patton, 33 W. Va. 77, 10 S. E. Rep. 23.
    
   The PRESIDENT

delivered the opinion of the court.

It is contended by the appellant’s counsel, that Mrs. Shermer was by the will, only tenant for life of a moiety, with a power to-dispose of the fee; and that not having- executed that power, the estate descends to the heir of the testator.

In support of this position, several cases have been cited; but they seem to verify the saying of a judge, “that in disputes upon wills, cases seldom illucidate the subject, which depending on the intention of the testator, to be collected from the will, and from the relative situation of the parties, ought to be decided upon the state and circumstances of each case.’’--To which '::'I will add, that I have generally observed, that adjudged cases have more frequently been produced to disappoint, than to illustrate the intention; and I am free to own, that where a testator’s intention is apparent to me, cases must be strong, uniform, and apply pointedly, before they will prevail to frustrate that intention.

The cases produced tend to prove, that an express estate for life to the wife, with a power to dispose of the fee, shall not turn her estate for life into a fee.

In the case of Target and Gant, the subject in dispute was a chattel, and the objection to the remainder was, that it was void, being limited on too remote a contingency, being after an estate tail, which, it was said, the wife took, tho’ devised to her for life, being limited over on her dj'ing without issue. The lord Chancellor said, that the estate tail in such a case, as to lands, was raised by implication, to favor the testator’s intention, and he would not make the implication, in the case of chattels, destroy that intention. So that if this case apply at all, it proves, that the testator’s intention shall make such words either an estate for life, or an inheritance, as shall best promote that intention.

In both the cases from 1 P. Wms. and 3 Eeon. where it was adjudged the wife took an estate for life, with power to dispose of the fee, the decision of the point was unimportant, since in both, the wife had executed her power, properly and effectually.

In those and all the cases, the question turns upon a fee estate in lands, here there is no doubt about the fee. It is in the purchaser from the executor, and the only question is how the money shall go according to the will? whether this will make a difference, need not be decided, since upon a view of the will, the intention is apparent, that the wife should have the whole estate for life, and that at her death, one half (except his specific bounty to her) should go to her family, and the other to his own. Their relative situation, and his prior declarations, only shew such intention to be liberal and just.

His words have been critically scanned ; he does not give her a power to dispose, but to name the person or persons she might chnse to succeed to her part, to whom the testator gives the money; and it is doing small violence to the words, even in their critical meaning, to say that by suffering her legal representatives to succeed her, she has actually made them her heir or heirs, as much so as if she had pointed them out by' an express devise.

The decree affirmed.  