
    *William Fairclaim, Lessee of James Guthrie, v. Richard Guthrie and Elizabeth Guthrie.
    [Thursday, April 20th, 1797.]
    Will — Devise—Power of Alienation — Fee Simple — Case at Bar. — [G. devised, that J. G. should have his land, and if ever J. G. should sell the land he left him, R. G. should have half the purchase, or if any land should descend to J. G. then R. G. should have it, or else the land devised to J. G.: Held, that J. G. took a fee in the devised lands — and on other lands descending to him, and his entering thereon, E. G. became entitled to the devised lands in fee, by way of executory devise. A power to sell gives a fee.]
    This was an action of ejectment in the District Court of King and Queen for one messuage and sixty acres of land ; and upon a special verdict found, the case appeared to be as follows: John Guthrie, the elder, being seised in fee of the messuage and sixty acres of land in the declaration mentioned, and having three sons, to wit: James, Richard and John, (of whom James ( was the eldest and heir at law of his! father) died in the latter end of the j’ear 1761, having first made and duly published his last will and testament in writing, bearing date the 17th day of October, 1761, whereby he devised as follows:
    “My will and desire is that finneral charge and all my lawful debts be fully paid, — Item, I give and bequeath to my son John or his ears one shilling sterling, my will is that my son Richard should have his choyes of my 2 whences Geany or Dice and if he chuses upon Jeany and she should bring ever so many children she shall nurce them till they are fourteen months old an then shall return them to James Guthrie or his ears, but if he chuses upon Dice he shall leave her and her ears and one feather bed and furniture, and my houshold goods to be equally divided between James Guthrie and Richard Guthrie and to divid it themselves. My will is that James Guthrie should have my land house and orchard and importances belonging thereto and if ever James Guthrie should sell the land I leave him Richard Guthrie shall have half the purchase, My will is if any land should fall to James Guthrie by earship that Richard Guthrie shall have it or else have this that I now live un my will is that Richard Guthrie shall have tenn 8 head of cattle *and tenn head of hogs and half my sheap and the remainder of my stock my will is that James Guthrie shall have them, my will is that all Jeaneys children that is now living (viz.) I give unto James Guthrie and his' ears forever, Harry, Daffenny, Frank and Samson, my will is if Richard Guthrie makes choyes of Jeany he shall have no other part of estate, my will is that Richard Guthrie should have Dice and Eondon and her increase and to his ears forever, my will is that Jeany and all her increase shall be James Guthries and his ears forever moreover my will is that if Jeany brings ten live children that she shall be at her one liberty from him or his eares only living with James Guthrie or his ears her lifetime:”
    The lands described in the above will, by the words ‘This that I now live un,’ are the same messuage and sixty acres of land for which the suit is brought; and at the time of making the said will, the testator had a brother named William, to whom the said testator was heir apparent. After the death of the said John Guthrie, the testator, James his eldest son and heir at law as above mentioned, entered upon the said lands and messuage described by the said words ‘This that I now live un;’ and died seised thereof in the month of January, 1776, without having made a will; and leaving the lessor of the plaintiff his eldest son and heir at law. The testator’s said brother William died in the life-time of the testator’s said son James, and from him the said James as his nephew and heir at law took certain lands and tenements by descent; which he likewise entered into and died seised thereof. After the death of the said James, the lessor of the plaintiff, as eldest son and heir at law to his father, entered into the said first mentioned messuage and sixty acres of land for which the present suit is brought, as well as into those which descended from William, and was thereof seised until the said Richard Guthrie, the son of the testator John Guthrie, evicted him of the said messuage and sixty 9 *acres of land, by virtue of a judgment of the General Court in an action of ejectment grounded on the said will of John Guthrie. In consequence of which said judgment the said Richard entered into the said messuage and sixty acres of land and died seised thereof, having first made his last will in writing whereby he devised the said messuage and sixty acres of land to the defendant Elizabeth for life, remainder to the other defendant in fee. After the death of the said Richard the testator, the defendant Elizabeth entered into the said sixty acres of land and messuage by virtue of the devise to her as aforesaid, and continued possessed thereof at the time of finding the special verdict in this action. The District Court gave judgment for the plaintiff; from which judgment the defendants appealed to this Court.
    Marshall, for the appellant.
    The first question is, what estate James took under the will of John Guthrie? I contend he took a fee.
    Warden, for the appellees.
    I shall insist also that he took a fee.
    Marshall. Is it not necessary then to proceed to prove the point. Supposing therefore that James took a fee, the case is no more than this, the lands in question are devised over to Richard if James takes other lands by descent; and it is found by the verdict that he did take other lands. Richard recovered, and the defendants claim under the devise over to him, insisting that the contingency on which it was to take effect has happened. It will be said that James had his election, for it cannot be contended that he is entitled to both tracts. Now, by the law of elections he who is to perform the first act, must make election; but if the time is suffered to pass away, the election is gone. Co. Litt. 145, (a) in notes. As soon, therefore, as the other lands descended on James, he had his election; and although he has not made it in express words, yet his having entered on the descended lands either amounts to an election to take them, or else he has past the time and Richard may now elect. 10 *But this is in nature of a limitation over to Richard. The reason of the difference between a limitation and a condition proves, that this was a limitation to Richard unless defeated by the election
    
      of James. Por otherwise, what remedy could Richard have? He could never force an election any way but by bringing an ejectment. Richard could not claim the lands which came by descent, he could only claim those under the limitation over. The principle of the rule that words of condition shall be construed into words of limitation, when the devise is to the heir at law, applies here.
    Warden. An illiterate man like the testator cannot be supposed to have understood the abstruse doctrine of elections. The question is not, whether Richard had a right to take, but how long he was entitled to hold. He took only an estate for life. The testator having died before his brother, had no right to dispose of what his son would take as heir to his brother. John Guthrie the testator never was heir to his brother, but James was and took as heir.
    There are no words of inheritance in the devise to Richard; and the heir shall not be disinherited without express words. Cro. Car. 447, 449. He also cited [Roe v. Holms,] 2 Wils. 80.
    In this case there are no words nor any apparent intent to disinherit the heir. In several instances the testator uses words of inheritance when he devises slaves and other things; which shews he knew how to limit an inheritance when he was minded to do so. [Frogmorton v. Wright,] 3 Wils. 414; [Bowes v. Blackett,] Cowp. 235, 657; [Right v. Sidebotham,] Dougl. 759.
    There are not only no words of inheritance in the devise to Richard; but the will further says in another part, that if Richard should make choice of the slave Jeaney, he should have no other part of the testator’s estate. Now, as he was to take, upon his not making choice of Jeaney, the verdict should have found in so many words, that he did not make choice of her.
    ^Marshall. It is agreed that James took a fee; and if so, I contend that the devise over passes the same estate to Richard.
    Warden. I did not mean to admit that James took a fee under the will, but that as heir at law he had a fee by his better title.
    Marshall. As this point is now receded from, I must proceed to prove that James took a fee. The cases cited on the other side merely prove that where there are not words of limitation nor any manifest intent to give a fee, only an estate for life passes. The question then is, if there be such an intent in the present case? The whole complexion of the will proves it. The testator was evidently very ignorant and illiterate and wholly unacquainted with technical terms. When this appears upon the face of the will as in the present case, the Court will strive to favor the intent. The devise to James was unnecessary according to Mr. Warden’s construction, because he was heir at law and would have taken as such; it could, therefore, only have been introduced for the purpose of providing for Richard. He also contemplated a power in James to sell, and although James would have had such power without, yet the testator certainly thought it necessary to give it. All which proves his extreme ignorance of technical language and legal doctrines. The testator meant to provide only for two sons (as he gives but a shilling to John,) and contemplating the inheritance of James from his uncle, he .made such a deposition of the small tract in his own possession as might provide for both of those two sons in case the contingency happened. That is to say, if one fee simple estate descended upon one son, the other should go to the other son. If any land descended to James by heirship, that Richard should have an equivalent estate in the other. As therefore the descended estate was a fee, so also is that devised to Richard. When he speaks of the descended estate which was clearly a fee, he used no words of inheritance to describe it. The testator certainly 12 contemplated the right of election *in James, and yet there could be no doubt which he would take if one was in fee and the other for life only. Almost all cases of wills stand upon their own bottom. They all depend upon the testator’s intent; and therefore differ; because there are different evidences of intent.
    A man cannot hold under a will and in. contradiction to it too. A devise of Black-acre to A. and of Whiteacre (which is entailed on A.) to B. A cannot hold both; but if he takes possession of Blackacre, B shall have Whiteacre. Which is exactly our case. Prom this I draw an argument as to the amount of the estate given. If James had given up the descended estate, he would have given up a fee. But as he retained it, he must give up his whole estate in the other.
    As to the objection concerning the election with regard to the slave Jeaney, it is only necessary to remark that we are in possession, and if that choice was to defeat our right, the plaintiff should have had it found; because he should prove a title to recover.
    If James had sold the land after Richard’s death, the family of Richard would have been entitled to half the money, which is an additional argument to prove a fee was intended.
    
      
      Principal Case Approved. — In Milhollen v. Rice, 13 W. Va. 561, it is said; “In the case of Guthrie v. Guthrie, 1 Gall 7, the will was made prior to the act of 1778, which provided a fee should pass by an indefinite devise, without the addition of words of inheritance. The will gave lands indefinitely, with a power to dispose of them; and it was held, this passed a fee simple; this case is therefore in accord with the numerous English and American cases, we have heretofore cited.”
      Construction of Wiils — Rule.—The principal c'ase is cited in Miars v. Bedgood, 9 Leigh 377, for the proposition that in the construction of wills, the court must look to the circumstances of the testator, of his estate, and of his connections. See cases cited in foot-note on page 14 of the principal case.
    
    
      
      A Power to Sell Gives a Fee. — The principal case is cited in Mooberry v. Marye, 2 Munf. 464. See foot-note on page 13 of the principal case.
    
   ROANE, Judge.

The first question important to be considered is what estate James the heir at law took under the will? This will was made antecedent to the act of Assembly, [1785, C. 62, 12 Stat. Larg. 157,] which considers a fee as passing unless restrained by words of limitation; and must therefore stand upon the acknowledged rules of law which then prevailed. At that time the rule was, that even in last wills, if words of inheritance were wanting, an estate for life only would pass, unless from a view of the whole will the intention of the testator obviously appeared to be that a greater interest should pass. I shall then examine this will at large without confining myself to the particular clause under consideration, for by this means only can we come at an intention which the 13 ^testator knew so little how to express. But let me premise in the first place that no inference is to be drawn from the want of technical words, unfavorable to an enlarged construction of the devise now under consideration ; for it is apparent from the face of the will that the testator was wholly illiterate and incapable of expressing himself properly. Whenever he uses a technical word, he uses it improperly and unnecessarily. On some of the bequests of the personal estate, he uses the word heirs; the meaning or legal import of which he certainly knew not; for he uses the same word as synonymous with children in the clause where he gives a negro woman named Dice and her heirs to Richard.

Neither can any inference against an enlarged construction be drawn from a tenderness for the rights of the heir at law, who it was said is not to be disinherited without express words; because the devisee in this case was the heir at law of the testator. The word have* in the deyise to James is the same as that used in the clause which disposed of the cattle. In the latter it not only passed the absolute interest according to the principles of law, but the testator certainly intended that it should have this operation, when applied to personal property; which from its nature was every day undergoing some change, and the value of which depended on the unlimited use in it. It is fair then tó give to the same expression in the devise of the land the same meaning. It is the appropriate meaning of the testator who certainly did not know that a difference of expression was necessary when applied to real and personal estate. The provision for Richard in case James should sell, does not directly give a power to sell (for if it did, no doubt could exist that a fee passed), but it explains still further the meaning which the testator affixed to the term have, by shewing that he contemplated an existing right in James to sell, in consequence of the interest which the will gave him. For he certainly supposed that all the interest which James could claim was under the will or else he would not have made 14 the *devise; and as he would not sell unless he had a fee, it is clear that the intention was to give a fee.

If then James took a fee, the next question is if the limitation over to Richard is good? It certainly is so by way of ex-ecutory devise, as the contingency on which it is to depend must happen within the time prescribed by the rules of law respecting limitations of this kind.

The only remaining question then is, what estate Richard took in the lands limited to him upon the event which has happened of other lands coming to James by descent? I think he also takes a fee. The same terms are used: He is to have the land; and according to the rule which I have before mentioned, that the same word used in different parts of the will shall have the same meaning, unless there be circumstances shewing an intention to vary it, Richard will take a fee if by force of the same expression a fee passed to James. If the tract was too small to divide between two sons, he could never have intended a division as to the interest in it. I am therefore for reversing the judgment.

FDFMING, Judge. The principal question is, whether Richard took an estate in fee or for life in the lands for which the present suit is brought? To decide this we must search for the intention of the testator, that we may see whether it be strong enough to over-rule the principle of common law, which requires words of inheritance to pass a fee. To discover this intention it may not be amiss to consider the situation and the circumstances of the testator. He had two sons, for whom he wished to provide, and a third for whom he intended nothing. His whole estate consisted of about sixty acres of land, a few slaves, some stock and a tract of land in expectancy. To divide the sixty acres of land would afford but little benefit to either son; he therefore prefers the eldest, but was determined to provide for his second son also, so soon as the estate, which he expected, should come to his family. These intentions were to be expressed by a 15 *very illiterate man, who from the face of the will it is evident knew not the necessity of using technical terms, or in what manner to apply them. But in most cases of this sort unless contradictory expressions are used, there will be some circumstance which will lead to the mind of the testator. Such is the present case.

The testator does not give a power to sell in express terms; but he says that James shall have his lands, and immediately declares in substance that he supposed he had given him such an estate as he might sell. The effect of this clause is equally powerful to my mind, in demonstrating the intention of the testator, as if he had given a power to sell. For, whether in the act of giving he annexed a power which could only appertain to a fee, or first gives the land and then declares that such a power is acknowledged to exist, the intention is the same. If then James took a fee, which I am clear he did, the same estate passed over to Richard. For, it was obviously the intention of the testator that James should have one estate and Richard the other, with this difference only that James should have an election.

The objection to the limitation over as being too remote is unfounded. For, as Richard was in esse at the time the will was made, a perpetuity could not take place. Upon the whole, I have no doubt about the intention of the testator, and that a fee passed in the land in question to Richard. Of course I think the judgment ought to be reversed.

LYONS, Judge. If we consult common sense and the reason of mankind, we shall be satisfied that where a man gives an estate in lands, without limitation or restraint, he means to give his whole interest in the same manner as if it had been a devise of money and personalties. But the principle having been once admitted, that words of limitation were necessary in order to carry a fee, there was, for a long time, no Judge found bold enough to emancipate himself from the influence of the 16 ^principle, though all of them have endeavored to undermine it. They have therefore laid hold on any words to avoid the rule of law, and effectuate the intention of the testator. Thus the word estate, charging the lands with a sum in gross, or giving a power to sell, have all been held to give a fee; and it has finally been established by a long course of decisions that the manifest general intent of the testator shall prevail, if by any possibility it can be carried into effect without violating the rules of law.

To apply these principles to the case under consideration.

What did the testator mean when he said that James should have the land? It will be said perhaps that this expression taken by itself is too doubtful to pass a fee; but then the testator has explained what he meant by it. For he considers that his son James might possibly sell the estate; but, if he had such a power, the testator must necessarily have supposed that he derived it under the will; and of course conceived that he had before given such an interest as would authorise the sale. When therefore he says that James shall have his land, his meaning was that James should have the whole interest.

Having fixed an appropriate meaning therefore to the word have, it is fair to give it the same interpretation in the limitation over to Richard. Because, it is manifest that his intention was, that whatever estate James took, should go over to Richard in the event of a descent to James. Besides, if James sold the land, Richard was to have half the purchase money, not for life, but absolutely; for there is no restriction, he is to have half the -purchase, which is a plain disposition of the whole intérest. So that in that event the testator clearly meant the whole interest; and therefore the fair inference is, that he intended the same thing in case no sale took place. If there be a devise to A. unless his father purchase other lands of the same value for him, and then to another; here A. has 17 a "fee, because purchase imports an absolute purchase, [Green v. Armstead,] Hob. 65. So if there be a devise to A. for life, and then to a son, except A. purchase land of the same value for the son, and then that A. shall sell; here, if A. does not purchase, the son takes a fee for the reason just mentioned. 2 Cro. Jac. 599, Hob. 65. These two cases are in principle the same with that at bar, and appear to me to decide the cause. For the first expressly proves a fee in James and the latter a like estate in Richard.

An objection was made to the remoteness of the limitation to Richard; but as the estate was to descend to James himself, that is, in his life-time, it was to take place within a life in being, and consequently is within the allowed limits for the vesting of executory devises.

I concur with the rest of the Judges, therefore, that the judgment of the District Court should be reversed.  