
    COURT OF APPEALS, (E. S.) JUNE TERM, 1821,
    Gibson et ux. et al. Lessee, vs. Horton.
    A devise of land charged with the payment of a sum of money in gross, ”"n, “mófan
    confotvey SeTsT* huev^“Jso'gives mak¡ugSsu’i°nconjpasep ¿Teland
    There is no instance in which a devise, charged with the payment of a »um in cross* has been held to ¡¡{¡y0a« thanSan £j£te in fee sim"
    Appeal from Queen-Anne's county court. Ejectment J ' ° for á tract of land called Matthew's Enlargement The ° judgment of the court below was rendered oh the follow - ing casé stated, viz. That a grant regularly issued for the land mentioned in the declaration, and that the title.1 tó said land was regularly transmitted by descent or devise to John Élliott, who died, seized thereof in fee simple, ón the 20th of November 1784. That a grant also regu-* larly issued for the lands mentioned in his will, called Grubby Neck and Buck's Range, and that he died seized of the same in fee simple. He regularly executed his Will 1 ° , on the 23d of October 1784, and at the time ot his death had no other child, or children, than those mentioned m 1 his will, nor were there any other descendants of any child or children of the devisor, The parts of the will on which the question before the court depended, were as follow: “I give and bequeath to my son John Elliott, my dwelling plantation called Mathew's Enlargement, containing 155 acres, and 90 acres in Chester Forest, near the Red Lyon Branch, to him and his heirs for ever. I give and bequeath to my Son Henry Elliott, my plantation in Caroline county, known by the name of Grubby■ Neck Addition and Buck's Range, containing 225 acres, to him and his heirs for ever. In case my son John Elliott should die without lawful issue, my will is, that my dwelling plantation shall descend to my son Henry Elliott, provided he gives up his right to all my land in Caroline county, to be equally divided between my daughters Susanna, Racheí, Mary, Elizabeth, Ruth and Rebecca; and provided he does not give up said land, my will is, that my home plantation shall be equally divided betwixt my seven daughters aforesaid. In case my son Henry Elliott should die, failing of issue lawfully begotten of his body, my will is, that my daughters shall have my land in' Caroline county. ” To Ills daughters he bequeathed all his personal estate. , John 
      was his eldest, and Ilenry his youngest soil, and his children mentioned in his will survived him; John entered upon the lands devised to him, and was lawfully arid peaceably seized thereof, and died in 1795, intestate, and without issue, never having suffered any fine or common recovery, or executed any deed of bargain and sale, to bar any entail, or supposed entail, created by his father’s will. Henry, upon the death of his father, entered upon the lands devised to' him, and was lawfully and peaceably seized thereof. Upon the death of his brother John, he legally gave up all the lands, and all his right therein, pursuant to his father’s will; in Caroline county, to his sisters, and took possession of the lands which were devised to his brother John, called Matthew's Enlargement, ánd described in his father’s will as his dwelling and home plantation. Henry died in Í811, without issue; Seized and possessed of said lands, having devised them by his will, dated the 16th of July 1813, to his sister Ruths, in tail,which said Ruth is one of the sisters mentioned in his father’s will, and who has since intermarried with the defendant, anil who; in virtue of the marriage, entered arid is possessed of said lands. Henry never suffered any fine, or common recovery, or executed any deed of bargain and sale, to bar any entail, or supposed entail, created by his father’s will. The lands devised to John, called Matthew's Enlargement, containing 155 acres, were worth gig per acre, and those called Grubby Neck Addition and Buck's Range, containing 225 acres, §7 per acre; at the time of his death. Sarah, (one of the lessors of the plaintiff,) the wife of Gibson, (another of the lessors,) is a daughter of the testator. The other lessors are the softs and daughters of deceased daughters of the testator; and Ruth, the wife of the defendant, is also one of the testator’s daughters. Other daughters of the testator died intestate, and without issue, before the action was brought. The county court gave judgment for the defendant, and the plaintiffs appealed to this court.
    
      Harrison and Tilghman, for the appellant,
    cited Doe d. Ellis vs. Ellis, 9 East, 382. Tenny vs. Agar, 12 East, 253. If Henry did not take an estate in tail, he did not take a afee. Roe d. Peter vs. Daw, 3 Maulé fy Selw. 518.
    
      
      Carmichael and Chambers, for the appellee,
    relied on jPow. on Dev. 250, 251, 252, Doe vs. Jeffery¿7 T. D. 589-A devise is to be beneficial to the devisee. Shep. Touch. £596. Hay vs. The Earl of Coventry, 8 T. R. 83. Roe vs. Daw, 3 Maulé $• Selw. 518.
   The opinion of the court was delivered by

Johhsok, J.

After stating the case, he proceeded as follows: The lessors of the plaintiff’ are a daughter and th^ representatives of other daughters of John Elliott, the first testator, who on the death of Henry Elliott without issue, claim an interest in the home plantation, or Matthew’s Enlargement, on the ground that Henry Elliott had not such an interest therein as enabled him to devise it to his sister, the wife of the defendant. To-support the pretensions of the lessors of the plaintiff^ it is contended, tha.t Henry Elliott, under his father’s will, took only a life-estate in Matthew’s Enlargement, or an estate in fee tail. On the part of the appellee it is contended, that he had an estate in fee, and that it passed by his will to the wife of the defendant. By the language of the will of the father, and according to the legal import given to the expressions used, both John and Henry, under the clauses by which the land is given to them, took estates in fee simple, clearly and technically expressed; and it seems equally clear by the limitations over., the estates given to each of them are reduced to estates tail—If '■'■John Elliott should die without lawful issue, my. will is that my dwelling plantation shall descend to my son Henry Elliott”—In case “my son Henry Elliott should die, failing of issue lawfully begotten, my will is that the land given to him shall be equally divided betwixt my seven daughters, ’’ are expressions too clear to admit of the least doubt, but that eacli of the sons took only estates fail in the land, iu the first instance, devised to them. But the question, on which this clause depends, is, what estate had Henry in the land devised to John, on the (acts as stated,at the.time Henry’s will was executed? In general, where land is given without mentioning what interest is to pass, the fee simple is designed; but according to the well established rules of law, when nothing is mentioned as to the extent of the interest, and there is nothing more in the will than the devise of the land, a life estate only will pass, the reversion in fee devolving on the heirs at law. In the will in question, on the death of John, without issue, Henry is to have the land; on the death of Henry, his sisters are to have that before given to him. The extent of the interest given to either not being specified, Henry would only take a life estate in the home plantation, and they (the sisters,) only estates for lives, as tenants in common, in the land devised to him. But the devise over to Henry depends on his giving up the land, before given to him, in value nearly equal to that of John’s, supposing Henry to take an estate in fee therein. He did give up the one, and took possession of the other. Where land is given by will, without specifying the interest, charged with the payment of a sum of money in gross, no matter how small, the devisee, if he takes the land, must pay the sum; but his interest is by the charge enlarged to an estate in fee, which without such charge would have been but a life estate. If being charged with the payment of a sum of money in gross, will convert a life estate to an estate in fee, surely charging the devisee, or making the devise to him depend on his conveying land belonging to himself to other persons, must have the same effect. It was contended, that as John took but an estate tail, on his death Henry had no greater interest, There is nothing in the will by which an estate tail can possibly be established in Henry to the land before given to his brother. There are no words in the will, in the slightest degree, calcula! ed to create such an estate. If the clause making it necessary for him to convey his land to his sisters, can have any effect, it must enlarge the estate to a fee simple. No instance, it is believed, exists, where an interest enlarged by a charge on land devised, has been restricted to an estate tail. It has been urged that the conveyance of the lands by Henry, is not a charge on, but collateral to the devise. The same might be said of the payment of a gross sum of money charged on the land; if the devisee refused to take the lands devised to him, he is not answerable for the money. But Henry elected to take the land with the terms imposed-^he has complied with those terms—his sisters obtained the full benefit of them; it would be great injustice to confine or limit his interest to a life estate in the land received in lieu of that conveyed; nor, according to the rules of law, can his interest be so restricted. The judgment given by the couqty court is therefore affirmed.

JUDGMENT AFFIRMED»  