
    Samuel F. Dunlap v. John Crawford, Thomas Williams and Wife, and J. H. Witherspoon and Others.
    Words of perpetuity in a devise of lands not necessary to convey a fee. “ I will and bequeath to my son H. one half of my plantation whereon I now live,” held to convey a fee. A charge on lands devised, without words of perpetuity, will give a fee. The legislature having declared by an act, what the law in future should be on a point much controverted in the courts, the court adopted the rule laid down in the act, and decided the cause pending in the court by that rule. A declaratory act is an act to remove some doubt which previously existed with regard to the law.
    There were several questions of some interest made in this case, but most of them were so involved with the peculiar circumstances of it that the Reporter has been induced to omit them. The main question was upon certain clauses in the will of Robert Crawford, deceased. “I will to my wife her maintenance on the plantation during her life or widowhood. I likewise will my wife the use of the house and furniture.” “I allow my son William a decent support in money and clothing for the sum of three years, to be raised off the plantation.” “ I will to my son Iloberi one-half the plantation I noiv live on, adjoining Wren and Roper“I will to my son John one-half of the plantation I now live on, including the improvements.” “ I will to my daughters Martha and Elizabeth two hundred acres of land adjoining Hood.” The question was, what estate Robert, the son, took under the will: for life only, or in fee? The charge on the plantation for the maintenance of the wife was upon the plantation in question, devised as above to Robert the son.
    *DeSaussure, Chancellor. It is objected that the devise is ■without words of inheritance, and that Robert Crawford took only a life estate, which terminated at his death in 1819, after which the lands descended to the heirs of the devisor. Two answers were given to this objection by the complainants’ counsel: first, that admitting for a moment the force of this objection, it is obviated by the application of another principle, that wherever a devise is made to any person subject to a charge, that of itself gives a fee, though there be no words of inheritance; and that the will of Mr. Crawford did subject the devisees of 1ns lands to a charge for the support of the widow, and, therefore, the devisees took in fee.
    The other answer which the complainants’ counsel gave was, that in a devise of real estate, words of inheritance are not necessary to give a fee. This has been questio vexata before the late statute enacted or declared that words of inheritance should not be deemed necessary in a will to create a fee. Heretofore, for many years, the court of equity has decided that words of inheritance were not necessary in a will to create a fee, more especially whenever the slightest circumstance or appearance of intent could be discovered; and this was in conformity to the common sense and experience of mankind, that where a man devises land generally, and without restriction, he means to give a fee-simple, and where he means to limit the estate, he does so by express words. By supporting the contrary, as the rule to guide in the construction of wills, the intention of the testator is defeated in a great number of cases. The cases decided are reported in 3 Desaus. Rep. 80, 168, and 249, and in subsequent cases which have followed those. In the law court the judges, with a divided bench, were of a different opinion, as appears by the cases reported in 2 Nott & M’Cord’s Rep. 383, and *593; and 1 M’Cord’s Rep. 546. In the case of Hall et al v. Goodwyn et al, 2 Nott & M’Cord’s Rep. 383, there were six judges present, three of whom dissented from their brethren, notwithstanding the very able opinion delivered by Judge Nott. In this state of things, I remain of the opinion 1 have always been. But the question ought to be submitted to the court of appeals, for though the statute of December, 1824, has enacted that hereafter no words of inheritance shall be necessary in wills to give a fee-simple in real estate, there must be many cases existing in which the courts may and will be called upon to decide what the law was prior to the statute.
    It is unnecessary to say, that whatever may be the rule laid down by the court of appeals, as to cases before the statute, it will >be the guide of my conduct.
    February 14, 1827. The question came up again on appeal from the chancellor’s decree.
    Miller, for the appellant.
    It is true, the clause devising the land to Robert contains no words of inheritance. But if the whole will be looked into, it makes a stronger case than that of Hall v. Goodivyn. The charges in the will on the plantation for the support of the wife during her life, and for the maintenance of William for three years, will give a fee. Hall v. Goodwyn recognized the rule. The cases are therefore not inconsistent. The two late appellate courts of law and equity were divided on this question. A new court is established, and the legislature have contemporaneously adopted the rule of the court of equity in their act of 1824, declaring words of inheritance thereafter to be unnecessary to give a fee. The case therefore in this court, notwithstanding Hall v. Goodwyn, is open for consideration. For the purpose of preserving uniformity the *court should adopt the rule prescribed by the act. The same thing was done in Gibson v. Taylor, 3 M’Cord’s Rep. 451. There the court had long been divided as to the question, whether the statute of limitations have once commenced running, any intervening disability could arrest its course. The legislature passed an act, that thereafter, intervening disability, such as infancy, &c., should stop the statute. The court in Gibson v. Taylor adopted the rule, and decided that case by the rule, although it was pending in the* court before the act was passed. It was great good sense in the court to prevent such chequered features in the laws, which could only disgust the citizens of the country with a species of legal absurdity which they never could comprehend. Unless this rule was adopted, it would be thirty or forty years before bills under the new act would come before the courts, and in the meantime a different rule will be in force. The legislature have the right to pass declaratory laws. In Calder v. Bull, 3 Dali 386, it is said there is no inhibition in the constitution which prohibits the legislature from declaring a rule of law by act of assembly. It was not an ex post facto law — for criminal cases only are within that principle. It is not asked that the court should go quite as far as the Connecticut court went in the case last cited, nor is it necessary for our purpose that they should. The case of Mr. Fox’s libel bill is in point. It is the supreme power of the legislature to declare the law in great and litigated cases. But even this view is unnecessary, if the court should think that the charge on the land gave a fee.
    Clarke, contra.
    The rights in this case were vested before the act of 1824, and the case must be considered as if that act had never passed. It is not a declaratory act. It enacted a rule of law to be of force thereafter. *It is not true that there exists any charge in the will on the estate devised to Robert. John is expressly charged with the subsistence of his mother, and William’s support is a charge on that part of the plantation devised to John. It is so considered by the parties. Hall v. Goodwyn is conclusive of this case, and that words of inheritance are necessary to convey a fee. Several cases have been decided on its authority and the court will not change the rule.
    Miller, in reply.
    The testator’s widow is to live on and be supported off the plantation. William’s charge is equally on the whole plantation. The devise to Robert is one-half, and the other half to John, and how can it be said that the charge on the plantation is only a charge on one-lialf of the plantation. A charge of twenty shillings in Collin’s case (Coke’s Rep. part 6, page 16) gave a fee.
   Curia, per

Colcock, J.

Did Robert Crawford, the grantor, take a fee in the lands devised to him by his father’s will ?

The question has very properly been called questio vexata. It may be said, that a majority of the court also concur; for although the chancellor has described that Robert took only a life estate in the land devised to him by his father, is obviously against his own opinion, and the repeated decisions of that court, of which he has been so long and so distinguished a member, and only in conformity with what he has supposed to be the decision of the late court of appeals at law, but which decision is not considered as affecting the rights of the complainant, as I shall hereafter show.

This is a question on which I venture to say that there is a greater diversity of opinion among those who have gone most fully into it than can be found in any other. I *take it that upon the first introduction of wills there was not any rule of law which required the use of technical words in a will; and this is supported by the authority of 3 Comyn, p. 358, and the statute of wills. Nay, it is the language of all who write on this subject. Judge Blackstone, in speaking of the difference between wills and deeds, in relation to executory devises, says, “The reason of the difference is that the testator is not expected to be acquainted with technical language, and is very often without the aid of those learned in the law,” and l will add, is more often unable to pay them. Whence then originated what is now called the true rule, that there must be words of inheritance, or those which are tantamount, to pass a fee ? On the first introduction of wills, it was obvious, from a reference to the state of things which then existed, and the struggles which have been made to introduce the power to alienate estates, that the first rule in relation to them must be, that the intention of the testator must prevail. But the judges of that day, leaning to the aristocracy of the country and against the alienation of estates, thought proper to introduce the feudal rule which applied to feoffments and grants, the only conveyances then in use in relation to wills, “that where an estate was conveyed without limitation, no more than an estate for life passed, and the reversion descended to the heirs/’ In a short time, however, they were driven from this position, and they were obliged, where the intention had been manifestly and obviously expressed, to depart from the rule which required the use of technical language, and in this march there has been from time to time a gradual departure from the rule which was adopted by the authority alone of the judges of England. But it is said, you have gone far enough, and must stop at the last decisions which have been made in England on this subject; and let me ask ? Is it simply because they *have laid down the rule so far? I am no advocate for innovation upon the well established doctrines of the law; nor am I blindly disposed to follow the decisions of English judges. Indeed there is not much encouragement to follow them on this subject, when we find some of them regretting that there ever was any departure from the rigid common law rule in relation to grants, and others, that they are shackled by any rule on the subject.

What is the reiterated language on the subject of the construction of wills? That the intention shall govern : that is, when it does not violate the established doctrines of law; as that a man shall not be permitted to create a perpetuity. Now is it not a mockery to say to a man, “you may make such a disposition of your estate as you think fit,” and then to destroy his will because it does not contain expressions which the testator never heard of? In order to arrive at the intention of a testator, the whole will is to be taken together when the intention is not clearly expressed in any particular clause.

The question here is. what did he intend when he said, “ I will and bequeath to my> son, Robert one half of my plantation whereon I now live, joining Wren and Roper?”

There are no words of inheritance or limitation : therefore it is said, he only intended to give a life estate. But on reading the whole will, it is impossible not to conclude that the testator sat down to dispose of his whole estate, and rose up with the firm conviction that he had done so. In the case of Hall v. Goodwyn, the court were equally divided on this subject; but as the case was decided by myself on the circuit, the opinion of the other three judges prevailed by the provisions of the act, which declared that the opinion of the circuit judge who tried the cause should not be taken in the ultimate decision of the case. There the intention to *pass afee was considered as manifested by the use of the word “estate,” which it is said comprehends all a man has; and many authorities directly in point were referred to. Put that intention may be collected from the whole will taken together, as well as, if not better than, by the use of a single expression. In the case of Richardson and wife v. Noyes, 2 Mass. Rep. 59, Sedgwicke, Justice, says, “I do think that courts ought to make a liberal construction of wills, and not to restrain in the consideration of those circumstances which tend to enlarge from life estates to fees. For I am satisfied that the idea expressed by Lord Mansfield in Loveacres v. Blight, 1 Cowp. 355, is correct. ‘I really believe almost every case determined by this rule as applied to a devise of land in a will has defeated the real intention of the testator; for common people and even those who have some knowledge of the law, do not distinguish between a bequest of personalty and a devise of land or real estate. But as they know when they give a horse they give him forever, so they think when they give land it will continue to be the sole property of the person to whom they left it.”'

This language is peculiarly applicable to the case before us, for the testator has made that only distinction which occurs to ordinary men between giving and lending'. When he does not intend to give absolutely, he lends for a time. And it is further manifest that he intends to give absolutely when he does give : first from the circumstance of his making no provision for any remainder; and secondly from his charging the estate with the payment of money for the support of the mother. And this has been considered since the case of Collier, 37 Eliz. p. 16 in Coke’s Rep. part 6, as evidence of an intention to pass the fee; and I should conceive it a waste of tim'e to refer to authorities on that point, when *it has been so repeatedly decided in our own courts. See 3 Desaus. Rep. 249, and Hall v. Goodwyn.

I cannot conclude this part of the case without repeating what I have formerly so much relied on in support of my opinion on this controverted point. That distinction which once existed between real and personal property has been gradually lost sigh of, and it very often happens that a testator is more concerned about the disposition of his personal than of his real property. How then is it to be expected that ordinary men should suppose that more formality was required in disposing of an hundred acres of pine land, than indisposing of two or three prime negroes ?

The legislature however having interposed, and declared that no words of inheritance are now necessary to pass a fee, I should think that the case, ought to be decided as the case of Gibson v. Taylor was,— by giving up an opinion in a controverted point, which for the future is put at rest : and in this view of the case my brother Johnson concurs. The decree of the chancellor is therefore reversed.

Nott, J.

(dissenting). I have not been able to concur in opinion with my brethren in this case. But it is nevertheless one respecting which I should feel less indifferent if I did not think that it would be more extensive in its consequences than seems to be imagined, and will go to disturb titles which have been long settled, and quietly enjoyed. I have always supposed that there was no rule of law better settled in this State, than that a devise of land did not convey more than a life estate without some words of perpetuity, or some provision in the will authorizing the inference that a greater estate was intended to be conveyed. That question was well considered and explicitly decided after great consideration in the case of Hall v. Goodwyn, 2 Nott & M’Cord’s Rep. *383. And although there was adifference of opinion in the court on another point of the case, there was none on that.

In the case of Jenkins v. Clement & Deas, Harp. Eq. Rep. 72, the court of equity appears to have made a different decision. And Chancellor DeSaussure, who decided the case, professes to bottom his opinion on the former decisions of that court. But by a reference to the cases relied on, it will be found that they do not support the opinion. The cases will be found in 3 Desaus. Rep. 80, 168, and 249. Chancellor DeSaussdre himself, in the index to that volume, title will, lays down the purport of those decisions in the following words. “ Words of perpetuity in a will not necessary, intention being plain.” In the case of Clark and Wife v. Mickle, page 168 of that volume, the court expressly admit that such a devise will not convey a fee without being coupled with some circumstances to manifest such an intention. And in the case of Waring v. Middleton and others, in the same volume, 249, which was the last case decided in that court before the case of Jenkins v. Clement & Deas, we see the chancellor laboring through five successive pages to show, that such an intention is to be found in the various provisions of the will; which labor certainly might have been spared if such was the legal effect of a simple isolated devise, without any words of perpetuity, or circumstance evincing such an intention.

By the act of 1824, the law is now altered, and there is no doubt that the present law will be found much more conducive to justice. Persons not skilled in the law are equally liable to omit these technical words which are calculated to carry their intentions into effect, and to use those which express a meaning different from what they do intend. But the legislature has taken care, by the very terms of the act, to give b a prospective Operation, by declaring that “no words of limitation shall hereafter be necessary, &c.” And the distinction between the effect of an act of the legislature altering a former law, and a judicial change of the law, is, that one meets the minds of the community prepared to receive it by its prospective effect, and the other takes them by surprise, by embracing all cases past, present and future. It cannot be considered as a declaratory act, because the object of a declaratory law is, to remove some doubt which previously existed with regard to the law. But on this subject there never had been any doubt. And the court of equity do not put it on that ground, but on the broad ground that it is time the law should be changed. And there never was a case less approved by public opinion, or which went more to lessen the confidence of the country in the judiciary than the case of Jenkins v. Clement & Deas, which is now relied on.

There is no analogy between this case and the case of Gibson v. Taylor. That case depended on the construction of our own act of limitations. Contradictory decisions had been made upon it, and the court was then divided upon the question. Cases had been hanging up in court for years, undecided, in consequence of that decision. The object of the legislature was to remove that doubt, but not to alter the law, and the court then felt bound to yield to those decisions which had been in conformity with the act. The decision which the court is now about to make will go to shake all the titles heretofore depending on the construction of wills, whatever the lapse of time may have been; and I am not prepared to meet the consequences of such a decision.

Decree reversed. 
      
      
         This case has never been reported.
     