
    Owings vs. Reynolds, et al. Lessee.
    Error to the General Court. This was an action op ejeciment for a tract of land called Taylor's Forest, lying in Baltimore county. The case as agreed ppon, and subrnitted to the court, was this: John divings, deceased, being seized in fee of the tract of land called Taylor's Forest by his last will and testament, elated the 8th of February 1762, devised, (among other things,) as follow: OAnt! aa to what it has pleased God to bless'me with, I dispose as follows,” &c. ‘T give and bequeath to my son Caleb Qwings, 60 acres of Jarid, being part’of a tract of land called Taylor's Forest, beginning,” £lc. “I give and bequeath to my loving wife, Jlscnuih Owlngs, my dwelling plantation, and the remainder part of niy part of Taylor's Forest, joining the said plantation, except the 6(3 acres willed to my son Caleb, to her during her natural life, and after her decease to fall to my sori Lot Owlngs; arid if he should die under age, its my will the said land should fall to my son Caleb, and my daughter Jlsenath Oddi.” John Oioings, . , ! ' > 1 . ¡ . . ’ : Shortly after the execution of his will, died seized and possessed of the land therein mentioned. Asenath Owings, wife of John Owings, the testator, after her husband’s death entered upon the land, ancj became possessed thereof, claiming the same under the devise, and occupied and possessed it until her death, which happened some time in the month of April 1792. Lot Owings named in the will, attained the age of 25 years, find died intestate in the year 1773, leaving the lessors pf the plaintiff, Rachel, Nancy, Sarah and Lot, his heiresses at law, and who have intermarried with Nicholas, Charles and John Reynolds, and John Peck, the other lessors of the plaintiff. The defendant, Caleb Owings, is the same person named in the will of John Owings, to whom, and a certain Asenath Odell, the land was limited over by the will, in case Lot Owings should die under age; and Caleb Owings, the defendant, is the eldest son and heir at law of John Owings, the testator.
    
      ,T O, by his wi‘l, d"VJ&ed a-> fo.lon^: 4,L gave and bequeath to my lovwife A U,jny dwelling plantat.on, bu*. to iter djmng her umuras life, and after her decease to fall to my SMI L O; and ii he should die tinder age, its my will the sunt mud dmuld hill to my son C O, and mj daughter A O” Maid, (hut L (> took only an estate for Ufe.
    • fA, by his will, devise d as ibhow; ‘•I gj\ e and lu - qne.Gh ail the land that I am j)os*es-ed «1, to be equally diude <1 bttween my edo sons A and J,-to them and their heirs, for evert but if in case either of my said sons should die v jileóte any heir lawfully bejjotiexi Ins body, or betore he arme» to the of 20 year., tlmt then in an eh case Ins part, to be the sole right and property of my surviving son, hjj, heirs and assigns for ever.’’ Whereas T have given a>l my 'an(Mo my t*vo sons, rpv Dili is í’fnií, the d'nwion line shall hegih at,v '*my. son A u> have the first choice of the'ripnd.” ‘"’Ham. my wji 1 and desire js-, that my son A do, out of his part of my estate, expend so much money uiil be st,indent to give n.'aon .1 a good education/* and th* testator appointed ins-sou A his executor. A died abovv the age of £0 years intestate, and without issue, leaving J iiis only brother, his heir at law; It seems to have Seen In'Ulby Hanson, Ch»s> that A took a fee simple under the devise. (H?tc)
    
    
      Heldh} iIan$on,Ch;nu thilt the following words in the last clause in ihe above will, viz “cut of rus part cf my estate,” he. transposed so that the clause should read, "-My will and desire is, dial :rv soil A do expend so much mousy a- wiii fce suificieat to give ray son J & good education, out of l,/ V»rt oí iay«stwe<” (Hats) .
    
    
      Chase, Ch. J. The question submitted to the court in this case is, what estate is devised to Lot Owings by the will of his father John Owings, in the lands in question-rail estate in fee simple or for life?
    It is admitted that there are not any words of limitation or inheritance in this will superadded to the devise of Lott Owings; and also, that unless the testator has used words in his will indicating an intention to give a fee in the lands in controversy to Lot Owings, an estate for life only passed to him. But it is contended, the testator has used words in his will which, when the several parts of it are considered together, plainly import an intention to give a fee to Lot Owings; and three circumstances are principally relied on as indicative of such intention— 1, The introductory clause — 2. The limitation over to Caleb Owings , and Asenath Odell, if Lot Owings died in his minority; and 3. There being no clause disposing of the residue.
    It is established beyond controversy, that the intention of the testator, is to prevail if not repugnant to some rule or principle, of law; and that such intention is to be collected from the words of the will. That no technical words are necessary to, create a fee. But the principle established by analogy to the rules prevailing in the limitation of estates by daed at common law is, that if law is given geSerally without adding words of limitation, att éstate for life only passes; and this rule, though it often interferes with and defeats the intention of the testator, is so firmly settled, that no probable conjecture can shake it. As there are not any words appropriated in a will to the creation of a greater estate than for life, the courts, without infringing the above rule, have decided, that if it appears on consideration of the whole will, to be the plain intention to give a fee in the land, a fee passes. It is also an established rule in the construction of a will, that the heir at law is not to be disinherited unless by express words or necessary implication.
    Having premised thus much, I will ttow consider those circumstances From which it is said a plain intention in the testator to give a fee to Lot Owings, is to be inferred.
    Introductory clauses are in general mere form, and inserted Without any particular or precise meaning being annexed to them; for almost every person who makes a will, sets down with an intention to dispose of his whole estate; and therefore they cannot have much influence — and only in favour of the clear intention of the testator. Derm vs. Gaskin, CoWp. 659, 660.
    The introductory clause in this case, “as to what it lias pleased God to bless me with,” can have no weight to induce the court to decide a fee passed to Lot Owings. It does not contain the word estate, nor any word of similar import, from whence an inference can be drawn, by couplingitwith the clause in question, that the intention was to give a fee; and besides, there are no words to conned the demise of the land in question with the introduction, so as to pass the whole interest. Derm vs. Gaskin, Cowp. 660.
    As to the limitation over, if Lot died in his minority. If: appears to me, the meaning of the testator, to be collected from the words of his will, was that Lot Owings should have an estate for life, with a contingent remainder to Caleb Owings and dsenath Odell for their lives, on the contingency of Lot Owings dying in his minority. But if the contingency did not happen, there are no words to show Lot’s estate was to be enlarged to a fee. If it could be implied, it is by no means a necessary implication, for the substitution was not to the heir at law, but to Caleb Ote
      
      mgs and Asenath Odell. Fowler vs. Blackwell, 1 Com, Rep. 353.
    
      Caleb Owings is the heir at law who is entitled to that part of the real estate which is not disposed of; and the heir at law is not to be disinherited unless by express words or necessary implication. Gascoign vs. Barker, 3 Aik. 10. 2 Ba. Ab. 66, 81. Bijas vs. Bijas, 2 Ves. 164, 165.
    Nothing can be inferred from the testator’s not dispos» Ing of the residue.
    In order to make a devise of lands, without any limitation added, a fee, such an intention must appear as is sufficient to satisfy the conscience of the court in pronouncing it such; if it is barely problematical, the rule of law must take place. Roe vs Blackett, Cowp. 240..
    Duvall and Done, J. were of opinion, that Lot Owings took a fee, and judgment was consecpiently entered on the cuse stated, for the plaintiff, and the defendant brought the present writ of error.
    The cause was argued before Polk, Buchanan, and Gantt, J.
    
      Rtdgely, T. Buchanan and Harper, for the plaintiff in error,
    cited Frogmorton vs. Holyday, 3 Burr. 1618; and Tomkins vs. Tomkins, cited in 1 Burr. 234.
    
      Johnson, (Attorney General) for the defendant in error,
    referred to Brogden vs. Walker's Ex'r. &c. 2 Harr. & Johns. 285, and Chew's Lessee vs. Weems, 1 Harr. & M‘Hen. 463. S. C. 2 Harr. & Johns. 173, (note.) He also referred to the case of Frazier's creditors vs. Frazier's heirs, in the court of chancery, 
    
    
      
      ) In the ease of Frazier's creditors vs. Frazier's heirs, a bill was filed by the creditors of Alexander Frazier, for the sale of his real estate, far the payment of his debts. The answer of John Alex« antler Frazier, an infant defendant, by his guardian, among other things stated, that Alexander Frazier died in June 1790, above the age of twenty years, intestate, and without leaving issue, leaving the said J. A. Frazier, his only brother, his heir at law. That the father of Alexander and J. A. Frazier, by his will dated the 18th of March 1777, devised among other tilings as follow, viz. “I give Mirt bequeath all the land that T am possessed of to he equally divided between my two sons, Alexander and John Alexander, to them and their heirs, for ever; hut if in case either of my said ^sons should die without any heir lawfully begotten of his body, or before he arrives to the age of twenty years, that then in such case his part to be the solo right and property of my surviving son, his heirs and assigns, for ever.” “Hern. Whereas I have given all my land, to my two sons, my will is that the division line shall begin at Rake’s land, and so running towards Fishing creek. My sob Alexander to have the first choice of the land ” “Item. My will and desire is, that iny son Alexander do, out of Ms part of my estate, expend so much money as will be sufficient to give my son John Alexander a good education.” My the will the testator appointed his son Alexander his executor. It was Submitted-to the chancellor to determine what estate passed to Alexander under this - devise. It does not appear from the papers in the Case that the chancellor decided what estate Alexander took tinder the devise. In November 1795, an agreement was entered int.0 by the counsel of the parties, in which it is stated that Alexander, under the will of his father, had the right of election as to which part of the land he would choose; and it being doubtful whether any election was made by him, and also doubtful whether the court of chancery could determine the fact of election, for the prevention of controversy in future, it was agreed that the chancellor, with the consent of parties, should decree a sale of the whole of the lands devised, &c. the proceeds of the land tobe equally divided beta een the creditors of Alexander and the defendant, each one half. The chancellor decreed accordingly. A sale having been made, J. A. Frazier exhibited an account, in which, amongst other matters, he charged the deceased as follows, viz:
      “To a charge on the estate for default of expending money in the education of John Alexander Frazier, as directed by the will oí Alexander Frazier, (the father,) deceased, say 8 years at ¿340 per year,
      ¿2330 0 0.”
      Haksojt, Chancellor, (August 1799.) This charge is founded on the claimant’s construction of Ids father's will. Now supposing it the intent of the will to Charge Alexander with his brother’s education and maintenance, the strangest words imaginable are used. It is not “I give Alexander one half of my estate on condition that lie lay out the sum of —in the. complete education and maintenance of his brother at some approved school,” or, “1 will that the part of my estate devised to Alexander be charged with the expense of providing a good education to his brother, and likewise completely maintaining him at some approved school.” No! it is, —my will and devise is, that my son Alexander, do, out of Ms part of the estate, expend so much money as will be sufficient to give my son John Alexander a good education.”
      It is apparent, from the whole will, (setting aside this disputed part,) that the testator contemplated perfect equality between his two sons, except that he gives Alexander, the elder, the choice of two equal parts, and makes hull executor; which is just what was reasonable, &c.
      Now, by changing the disposition of the words, and putting “‘out of his part of the estate,” at the end of the clause, it stands perfectly consistent with that intended equality, and it is well observed by counsel, that transpositions are frequently made for the purpose of supporting a rational construction of the whole. It may be observed, that there are few men, who, in speaking or writing do not express themselves in such a manner, that if you understand them, according to the strict rules of grammar, you. make them speak contrary to their intention.
      
        It ig alleged; without proof, that Alexander was burthened. witfe the education pf his brother, on account of his (the said Alexander’s} .having already received a good education; and that bv so charging him; equality was preserved. But it is not so. In such a case; the. eldest son. would be educated at the charge of the whole estate; and the. younger at the charge of the elder’s part.
      For,illustration, suppose the whole esta’e to be'£4000, and that £300 liad been expended in edupating- Alexander, more than had been expended on Jóte. To make,them equal it ought to be directed that £50Ci shall be expended on John,, and the residue divided between them:. In that case, they will have been educated at equal expense, and the share of each will be £1750. But according to the construction contended for, they will have been educated at equal expense, and John will get £500 more than his brother! that is, thej. qach share £2000 out of the £4000, Jóte has his part clear; but £500 is taken from Alexander to educate and maintain John. When the contemplation of equality is so apparent; When an easy obvious transposition will support that equality, and when, without the transposition, such inequality takes place, it is impossible tp admit the claimant’s construction of the will.
      “My will and desire is, that my son Alexander, out pf his part of the estate, shall expend so much money,” he. as already has been observed, is strange language to. constitute a charge on Alexander’s part. “My will and desjre,” are words very significant. “To expend so much ntoiley,” áre equally so. Tn short, the . meaning of the whole clause was, that Alexander, the executor, should be authorised to lay out as much of John’s part of the personal, estate, as would suffice to give.him a liberal education; Without this provision in the will, John’s education might be defective. The guardian, whom he might choose, or who might be appointed without the provision, might not think - proper to expend so much money as might suffice, particularly if the annual profits should not correspond with the proofs in this cause, oh might happen in some year to fall short.
      In addition to all this — supposing qs compelled to take Ms for Alexander’s, it may be asked, whether 'good education must comprehend maintenance; or whether, to prevent the great inequality 'in favour of a younger son, education might not mean barely the price of tuition, books, &c? Lodging, food and clothing, must be had, whether at school or at home; and therefore it might be said, that he who is charged’ with education is not of course charged With those articles of necessity.
      In construing a will, it is notorious that the judge's have never considered the question as a mere point of grammar. The question ever is, “what was the intent of the testator,” to be collected from the whole of his words. Amongst grammarians there is no donbi that his is considered in propriety as referring to the antecedent, if there be one, and not to a subsequent. It may indeed, in this case, be contended that the testator was not aware of any antecedent, or any rule of grammar. It is probable that he was no grammarian.
      Let it just be supposed that he had appointed two executors, and, had said “my will and desire is, that my executors, (instead of saying my son Alexander,') do, out of his part of my estate, expend,” &c. is there ev^n a rigid grammarian who would say, that the testator violated the rules of grammar. No! he would say, "his” refers to the antecedent, if there be one, but the word "his” may well be placed so as to refer to a subsequent, as is the case of Mr. Frazier directing his two executors, out of his part of the estate, to educate his son John Alexander.
      
      Op the whole, from the fullest investigation of tin's case, and on foil deliberation, it does not appear to the chancellor that Jóte Alexander Frazier hath any just claim against the estate of Alexander ■Frazier.
    
   The Court reversed the judgment of the General Court

Gantt, J. gave no opinion.

JUDGMENT REVERSED.  