
    Walters et al. vs. Walters.
    Appeal from Queen-Anne's County Court. This was an action of ejectment, brought by the plaiuiiff below, (now appellant,) to recover a tract of land called Dundee. The defendant (now appellee,) took defence on warrant, and plots were made. At the trial the plaintiff read in evidence a patent for the tract of land called Dundee., granted to Robert Walters On the 18th of March 1746. He also read in evidence a copy, under seal, of the will of Robert Wallers, the patentee of the said land, dated the 14th of January, 1763. The parts of the will which are material are these: ‘•'■and as for my worldly goods .. ' f j m H ?5 ^ 3, . [ j W Jc¡ ' which it hath pleased God to bless me with in this Ufe, 1 J give and dispose of in the following manner and form: Item. I give and bequeath to my son John Walters, all that pari of a tract of land called Dundee, whereon I now .. jj 0 dwell, according to the division which I have already meaked. I likewise give and bequeath unto my aforesaid J , 1 son John ff alters, one negro boy named Limus, and negro girl named Phillis. Item. I give and bequeath unto ray son Benjamin Walters, all the remaining part of the aforesaid tract of land called Dundee that lyeth on the north side of the main road that leads from (he narrows oj Kent Island to church. I likewise give and ;* ) > 0 » , queath unto my aforesaid son Benjamin Walters, one negro woman named Rumsey, one mulatto girl named Grace une uegro girl named Sue, all the'cattle, all the house-a bold furniture, and half the hogs on the-plantation where he now lives, all which he has in possession Item. I give and bequeath unto my grandson Robert Walters, all chat part of a tract of land called Dundee, that lyeth on > • ’ ■ ; south side of the mam road that leads from the narrows of Kent, Island to the church on Kent Island I likewise give and bequeath unto my grandson Robert Walters aforesaid, one tract of land called Walters’ Addition to Kirby’s Prevention, laying on Kent island in Queen Anne’s county; my aforesaid grandson Robert Walters not to inherit his lands aforesaid until the death of his father Alexander Wallersand my will is, that my son Alexander inherit the lands aforesaid;, until
      
       the benefits of them during his natural life. Item. I give and bequeath unto my son James Wallers, one tract of land called Jamaica, kind fifty acres of land, part of a tract of land called Hoyé, both adjoining, laying on a branch of Hamilton’s creek in Chester Eorest, Queen-Anne’s county, both which tracts of land, and part of a tract, I give unto my aforesaid son James Wallers. Item. I give and bequeath unto my three granddaughters, daughters to mv son James Walters, namely Ruth, Mary and Ann Wallet's, one negro woman named Dinah, and all her increase, to be equally divided among them at the death of their father James Walters, the said. James Walters to have thé, use of the aforesaid negro, and. increase, during his nátural life. Item. I give and bequeath unto my grandson Jacob Walters, son to James Wallers, one negro boy named Sam. Item. I give and bequeath unto my granddaughter Anne Blunt, one negro boy named Csesar. Item. I give and bequeath unto my granddaughter Susanna Waltera, 'daughter to my son Alexander, one negro girt named Moll; and if she dies without heirs lawfully begotten, then I give the aforesaid negro Molt to my grandson Alexander Walters. ítem. I give and bequeath unto my daughter Susanna Luthram, one negro Woman named Dinah, and ail her increase, which negro and increase she has irt possession. Item. I give unto my daughter Rachel Kirby, one negro woman named Murreus, and all her increase, to be equally divided among her children, which negro and filetease she has in possession. Item. I give and bequeath unto my son Jacob Watters, one negro man named Jo, to be. delivered to him at the death of his mother Élizabeth Walters. Item. I give unto my aforesaid son James Wallers, one good featherbed and furniture, and one oak desk. Item, It is.my will that my dearly beloved wife, Elizabeth Walters, have the use of the four following negroes during her natural life; that is to say, Jo, Phillis, Darkey and Daphney, which said four negroes l will my ivife during her natural life, and after her decease, then I give and bequeath the aforesaid four negroes unto, the persons hereafter mentioned; that is to say, Phillis to ;ny son Benjamin Walters, Joe to my son Jacob Walters, and Daphney to my son Alexander Walters, and Darkey to my granddaughter Anne Walters, daughter to James Walters. Item. After all my just debts, legacies, wife’s thirds and funeral charges, is paid and discharged, the remainder of my, estate I give, and bequeath unto my son John Walters. Lastly. I constitute, make and or,-* daiu, my dearly beloved wife Elizabeth Walters, executrix, and my son John Walters executor, of this my last will and testament, utterly revoking all. other wills heretofore made by me, ratifying and confirming this, and none other, to be tny last will and testament, in the presence of us whose names are here subscribed,’-’. The will was duly executed and proved. The plaintiff then proved, that Alexander W alters was the eldest son and heir at law of Robert W alters, the patentee and testator; and proved a regular descent down from Robert Walters, the patentee and testator, and from Alexander, his eldest son and heir at law, to the lessors of the plaintiff. The defendant then proved that John Walters, the son of Robert, the patentee, and testator, mentioned in the said will, was the father of John Walters, the defendant; and that at the death of Robert, the patentee and testator, John, his son and deviseo under the will, entered on the lands mentioned in the declaration, and was possessed thereof until his death, which happened in the year 1796, when the defendant, his son, entered into the said lands, and was and is now possessed thereof. The plaintiff then moved the court to instruct the jury, that by the will of Robert If alters, the patentee and testator, the fee simple to the lands mentioned in the declaration, and devised as aforesaid to John Walters, did not pass the said John I f alters, the sop of the said Robert Walters, the testator, and that the fee simple in the said lands has not been disposed of by the said testator by any part of his will, consequently that the same descended to Alexander Walters, the son and heir at law; and the same having been regularly transmitted down to the lessors of the plaintiff, the plaintiff is entitled to recover. But the court being divided iii opinion, no direction was given to the jury. The plaintiff excepted: and the verdict and judgment being against him, he brought the present appeal.
    
      U W, by his will dated m I7t>3f after staunjr, '“‘and as for my worldly goods -which it hath pleased God to bles» me with hi this Ufe-, 1 give and dis* pose of m the fob* lowing manner and fornif dev is-ed, Intel' alia, as fellows.* "'Item, I giveaudbequeath unto my sen J \Vf all that part, of a tract of hi ml ealled 1), whereon I pow dwell, accord ing- to the division, which I have already made,’' 1 here woj t; umi» hu devises oí oth« er parts and rrsidue or the tract of irtiid called i)} to his son 15 W, and to his grauihoj* ft W/ also a de* vise of another tract of laud to his grandson ¿i W9 ‘"'‘my aforesaid grandson R W not - jj * t ( % a q to inherit his land9 aforesaid until the death of his father A IV\ and my will is, that my son A W inherit, the lands aforesaid, and the benefits of then during his natural life,” also a devise of another tract to his hon J J Ws He also bequeathed sundry slaves to his grand daughters, “to be eqqahy dividí d at the death oftheir lather J J W, the said J J fp to have the use of the a-* foresaid negroes and increase., dur« ing his natural hfe” rK a.i'O he® qaealhtd a slave toas.oijiiT arando d.i «issuer, a daughter oi A V/, a and if she dies without heirs lawfully begotten, then! Rive the aforesaid nogiv to my gr ndson AW” He. also bequeathed certain slave*, to hi» wif,- during her natural life, and a iter her d< .uh, then to, fro and tlu n cone hides ia after all my just debts, legacies, wife's thirds, and fu. eral charges are paid, the remainder of my estate l give and bequeath ¿ruto my sonJ Jf n — Held9 that, J w, the so i >i ihe tes-» cator. took only an estate for life; and that the íesiduavy devise couid not he constructs to ,)ass ausf pare of the real mate; therefore* that the reversión ¿u ice in the land galled 13, not being dispoatd <>£ % will, descended to the heir at law»
    
      The cause was argued in this court before Chase, Ch. J. and Polk, Buchanan, Nicholson, Earle, and Johnson, J.
    
      Martin and Bullitt, for the Appellant,
    upon the first question, as to what estate passed to John Walters in Dundee, cited Hogan vs. Jackson, Cowp. 306. Bowes vs. Blackett, Ibid 238. Loveacres vs. Bright, Ibid 355. Denn vs. Gaskin, Ibid 657, 661. Roe vs. Bolton, 2 Blk. Rep. 1045. Right vs. Sidebotham, Doug. 759, 761. Doe vs. Wright, 8 T. R. 64; and Doe vs. Allen, Ibid 497.
    Upon the second, question, whether John Walters took the reversion under the residuary clause? they cited Timewell vs. Perkins, 2 Atk. 102. Roe vs. Avis et al. 4 T. R. 605. Markant vs. Twisden, 1 Eq. Ab. 211, 212. Doe vs. Buckner, 6 T. R. 610; and Canfield vs. Gilbert, 3 East, 516.
    
      Carmichael and Harrison, for the Appellee,
    upon the first question, cited Hardacre vs. Nash, 5 T R. 716. Gilb. Dev. 17. Baddely vs. Leppingwell, 3 Burr. 1533. Evans vs. Astley, Ibid 1682. Winchester vs. Tilghman, 1 Harr. & M‘Hen. 452. 2 Fearne 4. Frogmorton vs. Holyday, 3 Burr. 1618. Oates vs. Cooke, Ibid 1686. Loveacres vs. Blight, Cowp. 352. Denn vs. Gaskin, Ibid 657; and Right vs. Sidebotham, Doug. 759.
    
    Upon the second question, they cited Holdfast vs. Marten, 1. T. R. 411, 414. Bridgewater's case, 6 Mod. 106. Co. Litt. 144. b. Roe vs. Avis, et al. 4 T. R. 605. Gilb. Dev. 22. Doe vs. Buckner, 6 T. R. 610. Trott vs. Vernon, 2 Vern. 708. Hardacre vs. Nash, 5 T. R. 716; and the act of 1729, ch. 24, s. 10.
    
      
       Probably and.
      
    
   Chase, Ch. J.

delivered the following opinion, which was concurred in by the other judges. I am of opinion that John Walters, under the will of his father Robert Walters, took only an estate for life in the lands in question. The devise to John is general, without words of limitation or perpetuity, and there are no words in the will connected with the devise to John, or relating to the subject matter of it, denoting an intention in the testator to create a greater estate fimo for lire. The introductory clause, although it manifests an intention in the testator to dispose of the whole of his estate, and not to die intestate as to any part, is net so connected with the devise in question to John, as to enlarge the estate for lile into an estate of inheritance; and die rule of law is too firmly established to be shaken, that a genera! devise, without words of limitation or words equipollent or tantamount, will not pass a greater estate than for the life of the devisee. In expounding wills the intention of the testator is the polar star, and must prevail, if consistent with the rules of law, and that intention must be collected from the words of the will, which are applicable to the devise under consideration. The intention of the testator inferrable, or to be conjectured by the court in this case, from a general view of his will and the circumstances of his family, cannot be effectuated, because it stands opposed by the rule of law just mentioned, and because there are no words in the will, connected with the devise under discussion, indicating an intention to enlarge the estate for life.

As to the residuary clause, the words “all the remainder »f my estate,” are full and comprehensive enough to pass the whole of his estate, real and personal, remaining, to his son, John Walters, if the generality of these words are not restricted by the antecedent words in such manner as to confine them to the personal estate. In deciding on the operation and effect of these words, the court must consider the whole of the will, for the purpose of ascertaining the intention of the testator. In the introductory clause the testator manifests an intention of disposing of his whole estate, and he does it most effectually if these words are taken in their most comprehensive sense. lie devises both real and personal estate, and has given a great many legacies; but it is contended that these words, being connected with the preceding words, “after ail my just debts, legacies, wife’s thirds, and funeral charges, are paid and discharged”-[We regret that the remaining part of the opinion of the court has been mislaid. But the result of it was, that the general residuary devise to John Walters, when taken in connexion with the other parts of the will, was to be confined to the testator’s personal estate.j

JUDGMENT RUyERSED, AN» PROCEDENDO AWARDED.  