
    Johnson and Others v. Johnson’s Widow and Heirs.
    Wednesday, May 9, 1810.
    
    i. Will — Conveyance of Fee-Simple Thereby. — A fee-simple estate in lands might pass by a will (even before the act of 1785, c. 62.) without words of perpetuity, or any words equivalent; provided it appeared, from the whole will taken together, that such was the intention of the testator.
    3. Same — Construction—Use of Same Words for Disposition of Realty as Personalty. — Whei e an illiterate testator uses the same words in disposing of his real, as in disposing of his personal property, and in the same clause of the will, it is fair to infer that he intended to give them the same effect as to both kinds of property.
    This was a suit in Chancery in the County Court of Southampton, by the widow and children of Robert Johnson the younger, against Edmund Johnson, grandson, and heir at law of Robert Johnson the elder, and Joseph and Lemuel Jones, purchasers from the said Edmund, to recover of them a tract of land devised to Robert Johnson the younger, by the will of the said Robert the elder, bearing date September 4, 1772, and admitted to record the 12th of the same month.
    The clauses on which the controversy turned were, “I gave and because to my son Robert Johnson, 120 acres of land that I bought of James Kitchen, and 1 cow and 1 calf,” &c. proceeding to mention several other articles of personal property. “I give and because to my grandson Edmund Johnson, 5s. I give and because all the rest of my worldly estate to my well beloved wife Martha Johnson, to be at her dispoon ingurin of her life or widowhood, and afterwards to my son Britain Johnson, to him for ever.”
    The bill set forth that, although there are no words of perpetuity in the devise of the land to Robert the younger, the plaintiffs could prove that the testator, at the time of making the will, told Joseph Bradshaw, the writer thereof, to give the 550 said 120 *acres of land to his son Robert, and his heirs; and this, they contended, was strongly corroborated by every devise and bequest contained in the will. They prayed a decree for the land, (as being entitled under Robert the younger, he having died intestate,) and for general relief.
    The defendants relied on their construction of the will, as giving to Robert the younger, an estate for life only, and, immediately upon the death of the testator, the reversion in fee to Edmund Johnson, his heir at law. They denied any knowledge of the testimony of Joseph Bradshaw, but believed that, even if it were as stated by the plaintiff, the Court should disregard it.
    The only depositions taken were those of Council Johnson and Sarah Johnson, proving declarations by the testator some time previous to his death, that he intended to have his will altered, and give the plantation that he bought of James Kitchen, to his son Robert Johnson, jun.
    The County Court decreed the land to the plaintiffs, and, on an appeal to the Superior Court of Chancery for the Williamsburg District, Chancellor Tyler was of opinion, ‘ ‘that, upon a fair construction of the will of Robert Johnson the elder, it was his intention that Robert Johnson the younger, his eldest son then living, should have an absolute interest in the tract of land devised to him, in the same manner as he intended the said Robert should enjoy the personal property devised to him in the same clause wherein the land is devised;” and that there was no error in the said decree, except that the County Court should have decreed the dower of the appellee Mary, in the said land, to be assigned to her; partition of the said land (subject to the said dower) to be made among the children ot the said Robert Johnson the younger; and an account to be taken of the rents and profits of the said land whilst in the possession of the appellants. He therefore affirmed the decree as far as it went, and remanded the cause for farther proceedings; from which decree an appeal was taken to this Court.
    Call, for the appellant, made two points; 1. A life-estate only passed to Robert Johnson the younger. This is a mere naked case of a devise of land to a son, (not being heir at law,) without any words of perpetuity, and without any words in the preamble to supplj' their place. None of the cases come up to this. It 5S1 *may, perhaps, be said the residuary clause makes a difference; but that would not benefit the plaintiffs, because they are not entitled under it.
    2. The Court of Chancery had no jurisdiction; (unless as to the dower of the widow,) because the remedy was complete at law.
    Wickham, contra.
    The case of Wyatt v. Sadler,  is decisive of this, on the merits; establishing the great rule that the testator’s intention ought to prevail.- Here the testator was a very illiterate man altogether unacquainted with law or with technical terms. His giving real and personal property in the same clause, and by the same words, clearly proves that he knew no difference between them, but intended an equally absolute estate in both; and his bequeathing five shillings to his heir at law shews that was all he meant to give him. But the residuary clause is decisive to shew that he thought he had given all his estate in the land in the foregoing part of the will. It is not probable that he contemplated giving his wife a remainder for life after an -estate for life to his son.
    As to the jurisdiction. The widow and infant children join in the suit. She is clearly entitled to dower. There being, then, no exception to the jurisdiction, the Court, having it for part, will entertain it for the whole.
    Call, in reply.
    The circumstance of real and personal estate being joined in the same clause makes no difference; for in the case of Forth v. Chapman, . recognised in Hill v. Burrow,  it was decided that the same words, as to the two different kinds of property, should be taken in different senses, though occurring in the same clause.
    The testator’s giving his heir at law five shillings, does not prove that he meant to give the more to the other devisee.
    But the residuary clause is said to be decisive. Be it so. Then the appellees are not entitled; but the testator’s widow, in whom the reversion in fee vested by that clause. It is contended to be improbable that he intended this. The same argument was used and overruled in Selden v. King,  But in Kennon v. M’Robert, this Court expressly decided that, where 5S2 there *is any other estate for the residuary clause to operate upon, it will not carry the estate from the heir at law.
    Monday, May 14.
    
      
      Will — -Conveyance of Fee-Simple Thereby. — As deciding tliat, before the statute of 1785, a fee would pass by a will, without words of perpetuity, or any words equivalent, if it appeared from the whole will taken together that such was the intention of the testator, the principal case was cited in Goodrich v. Harding, 3 Rand. 283.
      Chancery Practice — Prayer for General Relief, — The principal case was cited in .1 ames v. Bird, 8 Leigh 514, in a discussion of how far relief may be given in equity under a prayer for general relief.
    
    
      
       Ante, p. 537.
    
    
      
       1 P. Wms. 663.
    
    
      
       3 Call, 342.
    
    
      
       2 Call, 72.
    
   The Judges pronounced their opinions.

JUDGE TUCKER.

The principal question in this cause depends upon the construction of the will of Robert Johnson, a most illiterate man, if we may trust the evidence arising out of the will itself, dated September 4, 1772, and proved and admitted to record eight days after; whence it may be inferred, that it was made in extremis, and when the testator was perfectly inops consilii. The testator, having bequeathed his soul to Almighty God, and desired to be buried in a christian-like manner, without further preamble proceeds thus: “It is my desire I gave and because (give and bequeath) to my son Robert Johnson 120 acres of land I bought of James Kitchen, and one cow, and one calf, and one heifer, and one feather-bed, and furniture, two ewes and twu lambs, and two sows, and one mare, saddle and bridle.” He then gives similar legacies of personals, to three of his daughters. Then 11. 5s. to his grandson Kitchen Johnson, to be paid to him at 20 years old; and then to his grandson Edmund Johnson (his heir at law) 5 shillings; then 5 shillings to another daughter; and concludes thus: “I give and because (bequeath) all rhe rest of my worldly estate to my well beloved wife M. J. to be at her dispoon (disposal) ingurin (during) her life, or widowhood, and afterwards to my son Britain Johnson to him for ever.” The question is, what estate did Robert Johnson take in the 120 acres above first devised?

I had occasion to remark the other day,' that the late President Pendleton had, in the case of Kennon v. M’Robert, clearly demonstrated (to my satisfaction at least) “that there are no precise words, nor any precise arrangement of them, nor any thing in any degree technical, necessary to the discovery of the testator’s leal and legal intention;” and, that “whenever, from the whole face and context of the will, we can collect the testator’s real intention, we are bound to give it legal effect.” In the case of Rose v. Hill, Lord Mansfield speaking of the testator’s meaning, said, “the testator uses the same words in disposing of the real estate, as he does in disposing of the personal; and they explain each other.” Here the testator has done the same thing, 553 *in the same sentence. So far, then, we may consider it as explaining his intention to give an absolute property in the one as well as in the other.

There are other circumstances, apparent upon the face of the will, to corroborate this construction. He gives to his grandson (his heir at law) five shillings. Probably because he had given his father, in his life time, whatever he had intended to give him. Be this as it may, it creates a very strong presumption he had no intention that he should ever inherit this 120 acres. Ignorant as he was, he seems to have known that one person might enjoy property by a gift for life, and another for ever afterwards. This appears from the gift of all the rest of his worldly estate to his vi ife for her life, or during widowhood, and afterwards to his son Britain Johnson. Why then did he not express himself in like manner as to this land, if, indeed, he intended only to give a life-estate in it? These circumstances are so many evidences of intention, that I think we ought not to reject them, although they may come within none of the technical rules heretofore laid down by the courts of Westminster Hall.

Objection. The residuary clause to the wife, with remainder to his son Britain, will carry the fee, in this case, both from the heir at law and Robert. I think not. For the rule that you cannot infer a particular intention from a sweeping residuary clause was recognised in the case of Kennon v. M’Robert; and, according to my conception of that case, the residuary clause in that was equally as strong as in the present. It cannot be thought that the testator meant to give a life-estate to his wife in this land, or a remainder (after two life-estates) to his son Britain, by these general words, which may well be satisfied otherwise: for, from the affectionate terms in which he speaks of his wife, there can be no doubt that there was other estate upon which this residuary clause might operate, I am therefore of opinion in favour of affirming the decree, not only of the Chancellor, but of the County Court, so far as it goes to this point.

JUDGE ROANE.

My opinion is, that Robert Johnson the younger took an estate for life only, in the premises in question. My reasons for this opinion were stated in the case of Wyatt v. Sadler, the other day; and I shall not repeat them. I am free, however, to admit, that, under the 554 opinion of the other Judges *in that case, a fee passed to Robert Johnson. There is no difference between the cases, so far as we are to be guided by precedents. My own opinion, therefore, is, that the decree ought to be reversed; but, in deference to the decision of this Court in the case of Wyatt v. Sadler, it must be affirmed.

JUDGE FLEMING.

In the construction of this, as of other wills, to discover the intention of the testator, we must take the whole together, and judge accordingly. The writer of this will was very illiterate, and totally unacquainted with the technical terms of the law; and the testator having given the land in the same clause, and in the same words used in disposing of personal property, (the absolute right in which passed to the legatee,) it appears to me that the testator did not intend a remainder, on the death of his son Robert, to his heir at law, to whom he gave a small pecuniary legacy, and says no more of him. And, in the last clause of the will, he gives all the rest of his worldly estate to his well beloved wife Martha Johnson, to be at her “dispoon ingurin” of her life or widowhood; (meaning, I suppose, at her disposal during her life, &c.) If Robert took only an estate for life in the land, his widow, by the residuary clause, would have taken a remainder during her life, or widowhood, as such remainder was not otherwise disposed of by the will; and it could never, I conceive, have been in the contemplation of the testator to make such remote provision for his wife, on a supposition that she would survive his son Robert. But, on a presumption that Robert took an estate in fee, the whole of the will (though written in very untechnical language) seems perfectly consistent. I am therefore of opinion, that Robert took a fee in the land in controversy; and, if I had doubted on the subject, it haying been already so decided by two different Courts, I should not now disturb the decree.

Decree affirmed. 
      
       Ante, p. 541, Wyatt v. Sadler.
     
      
       3 Burr. 1884.
     
      
       1 Wash. 111, Kennon v. M’Robert.
     
      
      Note. It seems, from this case, that a joint suit in Chancery may be maintained in behalf of a widow and heirs or devisees, to recover land in which the widow has a right to dower, on a bill stating a case in other respects proper for a Court of Law, (or alleging another circumstance, apparently with a view to give the Court of Equity j urisdiction, without proof of such circumstances,) and merely praying a decree for the land, and for general relief, without specially claiming dower, or praying that it maybe assigned; that, having jurisdiction as to the right of dower, the Court will entertain it for the whole subj ect in controversy, and, after decreeing the land to the plaintiffs, will go on to decree assignment of dower to the widow, partition among the other plaintiifs, and rents and profits against the defendant.
      See 2 Atk. 3, Cooke v. Martyn, in which it is said that “praying general relief is sufficient, though the plaintiff should not be more explicit in the prayer of his bill;” and ibid. 141, Grimes v. French; “though you pray general reliei by your bill, you may at the bar, pray a particular relief that is agreeable to the case you make by your bill; but you cannot pray a particular relief which is entirely different from the case;” or “inconsistent with it.” Cooper’s Eq. Pleading. 14, and the cases there cited. For example, the plaintiff may have an account for rents and profits under the prayer for general relief, if the case made by the bill entitle him to it; but not otherwise. 3 Atk. 132. — Note in Original Edition.
     