
    *Boisseau and Others v. Aldridges.*
    April, 1834,
    Richmond.
    [27 Am. Dec. 590.]
    (Absent Brookbnbrough, j.)
    Wills — What Constitutes — How Heirs Disinherited— Devises by Implication) — Case at Bar. — B. in his lifetime, signs and seals the following instrument— '‘Not having made a will so as to dispose of my property, and two of my sisters having married contrary to my wish, T wish this instrument to prevent either of their husbands from having one cent of my estate, say the husbands of my two sisters M. and D. nor either of them to have one cent, unless they survive their husbands ; in that case, I leave them $500 each, to be paid” &c. On which he indorses, "Mem. to prevent Bennett and Burwell Aldridge |the two husbands! from having any part of my estate that each might claim In right of their wives, without a will made by me :” Heud, 1. The instrument is a testamentary paper ; but 2. a man cannot disinherit his heirs or next of kin, in any other way than by giving his estate to some one else ; and 3. the instrument is not a devise and bequest of the testator’s estate. by implication, to bis beirs and next of kin other than the two sisters, M. and D. and their husbands; therefore, i. these two sisters are entitled to their shares of his estate undisposed of by the will; dissentiente Tucker, P., as to the two last points.
    
      This case was argued before Judge Brookenbrough was appointed judge of this court.
    
      John G. Boisseau, late of Dinwiddie, died in the autumn of 1831, having some time before, with his own hand, written and signed the following instrument:
    “Not having made any will so as to dispose of my property, and two of my sisters marrying contrary to my wish, should I not make one, I wish this instrument to prevent either of their husbands from having one cent of my estate, — say the husbands of my two sisters Martha Aldridge and Dorothy Aldridge, — -nor either of them to have one cent, unless they should survive their husbands; in that case, I leave them, to be paid out of the collection of any of my moneys, 500 dollars each. Given under my hand and seal this 27th August 1829.
    John G. Boisseau. [Seal.]
    ‘ ‘N. B. Having so long been in public business my handwriting can be easily proved. J. G. B.”
    *And on the paper was indorsed— “Memorandum, to prevent Bennett Aldridge and Burwell Aldridge from having any part of my estate, that each might claim in right of their wives, without a will made by me. J. G. Boisseau — 27th August 1829.”
    This instrument was admitted to probat and record, as the last will and testament of the decedent, by the county court of Dinwiddie, at its January term 1832, and administration of his estate was granted to his sister Sarah Boisseau. He left a large estate, real and personal. His heirs at law and distributees were four sisters who survived him, and many nephews and nieces, children of a brother and sister who died before him.
    A bill in chancery was exhibited in the circuit superiour court of Dinwiddie, by Bennett Aldridge and Dorothy his wife and Burwell Aldridge and Martha his wife, against Sarah Boisseau, as the administratrix and in her own right, and others; the female plaintiffs being the sisters of the decedent mentioned in the above instrument of writing, and, unless thereby excluded, co-heiresses and distributees with the defendants, of his estate real and personal. The plaintiffs insisted, that the decedent died intestate as to the chief part of his estate (that is, as to all but the two contingent legacies to them, of 500 dollars each, bequeathed in the .instrument). And they prayed partition and distribution thereof as in case of intestacy. The defendants insisted, that the instrument was a testamentary one, and was a disposition of the decedent’s estate, and that its effect was to exclude the plaintiffs from participation in the inheritance and distribution thereof, and to devise and bequeath the same (excepting the two contingent legacies therein bequeathed to the plaintiffs) to the other persons standing in the relation of heirs and next of kin to the decedent.
    The cause having been removed, by consent of parties, to the circuit superiour court of Petersburg, came on for hearing there in September 1832. And the plaintiffs having agreed, that if they could be required to elect the one or the other, they would elect to take their shares of the decedent’s *estate as co-heirs and distributees thereof, in preference to the contingent legacies bequeathed to them, respectively, in the instrument of writing above recited, —the court declared, that the right of a person to disinherit his heirs, exists, not as an abstract substantive power, but as the effect and consequence of the power to devise and bequeath his estate to whom he will; that the testamentary writing, in this case, contained no devise or bequest to the defendants, either in terms or by necessary implication, furnished no rule of apportionment, and left it uncertain whether the children of the plaintiffs were excluded or not; that the instrument was made by the testator under an erroneous impression, that if he declared his intent to exclude the plaintiffs, the law would dispose of his estate among his remaining brethren and their descendants, in exclusion of them; and that, consequently, he died intestate as to his lands and slaves. Therefore, the court decreed partition and distribution of his lands and slaves, among his heirs at law and next of kin, including the female plaintiffs, and ordered the administratrix to render an account of her administration &c. Prom which decree the defendants applied by petition to this court for an appeal, which was allowed.
    Johnson and Heigh, for the appellants,
    premised, that whatever might be the effect of the instrument of writing left by Mr. Boisseau, it was plainly a testamentary paper. When the testator said, he had not made any will to dispose of his estate, he only meant, that he had not before made any will: when he said he intended this instrument to operate, if he should not make a will, — if he should die without a will,' — he meant, in case he should not make another will. He made no other, and this was his will.
    They admitted, that the heirs and distributees of a decedent must inherit his estate, unless it be given to some body else, and that where there are many of them, all must inherit, unless the estate be given to some in exclusion of the rest: but they contended, that this testamentary writing was a devise and bequest, by plain implication, of the testator’s ^estate to his heirs and next of kin, other tha,n his two sisters Martha and Dorothy and their descendants; and that the portions of those who did take, were to be regulated by the statutes of descents and distributions.
    Here, they argued, was a Virginia testator, having four sisters living, and several nephews and nieces children of a deceased brother and sister; he was aware, that by the law of Virginia, if he died intestate, these relations would all come into the inheritance and succession of his estate; and he made this will, excluding the husbands of two of his sisters, and the two sisters themselves, from any share of his estate. If he did not mean, that the estate should go to the rest, as if the two excluded sisters had no existence, he meant nothing. Suppose the testator had, after excluding the two sisters, added, in terms, that his other heirs and distributees should inherit his estate, it could not have been doubted, that this would have been a devise and bequest of the estate to them, to be divided according to the law of descents and distributions; and yet he could not, by such express words, have more clearly manifested that intent than he had done by the writing in question. He must have known the number of his heirs and next of kin; he must have been aware of the law of the land as to descents and succession; he must have written this paper, and it carried internal evidence that he did write it, with reference to the state of the facts as well as the law: therefore, when he excluded the two sisters, who he knew would take equally with the others, and the others equally with them, unless they were so excluded, he must have meant, that the others should take in exclusion of them. He could only have excluded them, in order to give to the others; he could have had no other conceivable purpose. The law, they said, gave the power of disposing of property by will; but it nowise provided the form in which the testamentary intent should be manifested: if the intent resulted from the will by plain necessary implication, it was as effectual as if it was couched in express words.
    *Upon the doctrine of devises by implication, they referred to 6 Cruise’s dig. tit. 38, ch. 10, i 19-24, pp. 206, 7, and the cases there collected. And they endeavoured to maintain, that where-ever there is a purpose expressed in a will, indicating another purpose not expressed, and the expressed purpose cannot be effected without carrying into effect the purpose not expressed, in such case, a devise to the purpose not expressed must be implied.
    They asked the court to consider the consequence of holding, that this was a mere exclusion of the two sisters, without any disposition of the estate to the other heirs and next of kin, and that for want of such donation to the others, the exclusion of the two sisters was wholly inoperative. The two sisters would take by the law, their full shares as parceners and distributees; and then, in case they should survive their husbands, they would also take by the will, a legacy of 500 dollars apiece ; so that those whom the testator certainly meant to exclude, would get more than any of the rest, and that in consequence of his effort to exclude them. A more direct violation of a man’s wishes in regard to the disposition of his property could hardly be imagined.
    They adverted to the general doctrine laid down in many cases, that whether a testator mean to give the estate to the heir at law or not, the intention is immaterial, if it be not given to some other person; that there is no other way to exclude the heir but by giving it to some body else: that, therefore, though it may be apparent, that a testator meant his heir should not have the subject undisposed of by his will, yet, even against that intention, the heir would take; that plain language of gift, or necessary implication, is necessary to disinherit the heir. And they admitted all this: but they said, it could nowise affect the question, whether a will contained a devise by implication to other persons than the heir: that was always a question of intent.
    The doctrine had been laid down in three classes of cases: 1st. Cases in which a testator having left a portion of his real estate undisposed of by his will, without any intent, expressed or inferrible, to disinherit his heir, the heir has been *held to take. Habergham v. Vincent, 2 Ves. jr. 204, 225; Bury v. Usher, 11 Ves. 87, 92; Roosevelt v. Fulton’s heirs, 7 Cowen 71, 79. 2nd. Cases in which a testator, without any design to disinherit his next of kin of his personal estate, hav ■ ing made no disposition of a part of it, or made a disposition of it which failed of effect, the next of kin have been held entitled to distribution of the part so undisposed of. Such was the case of Pickering v. Stamford, 2 Ves. jr. 272, 581, 3 Id. 332, 5, 492, in which the testator designed to exclude the next of kin in favor of a charity, but the bequest to charity failed. And such was the case of Sympson v. Hornsby, mentioned by the court, 3 Ves. 335, where the testator’s design was to give a small portion to one daughter, in order that he might give a larger portion to another daughter; but this favored daughter died in the testator’s lifetime, and so the legacy to her lapsed; and the subject of this lapsed legacy was held to be distributable among the next of kin. 3rd. Cases in which a testator, expressing an intent to disinherit his heir, in respect of real estate, yet left real estate undisposed of by his will, to which the heir was held to be entitled, notwithstanding the express intent to disinherit him; Denn v. Gaskin, 2 Cowp. 657, 661; Right v. Sidebotham, Doug. 759; Jackson v. Shauber, 7 Cowen 187, 195. The reason of these cases, they said, was plain enough; they were cases in which, under the common law of descents, there was but one heir at law, and it was matter of necessity to adjudge the estate to him, for if he did not take, no other person could: there was no other person in favour of whom a devise could possibly be implied. So, in Virginia, if a testator were simply to exclude all his heirs and next of kin, without making any disposition of his estate to others, so that there should be no person in whose favor' a disposition could be implied, the heirs- and distributees would of necessity take. But if, in England, one of two daughters- and co-heiresses should be expressly excluded from the inheritance by will, it would be apparent, that the testator meant to exclude her for the benefit of the other, and therefore to give the whole estate-to the other. And so, *in Virginia, if one of several children, co-heirs. and parceners, should be excluded by will, the others being capable of taking the whole, the exclusion of one, as it must have-been intended, so it must be held to operate, for the benefit of the rest.
    They said, there was only one english case directly in point to the present; a case, in which a testator having four children, capable of taking the subject in question (it was personal estate) if he had died intestate as to it, by his will expressly excluded two of them (whom he described as his wife’s children, not his own) from the succession, without making any disposition of the surplus: the court of chancery decreed that the children so excluded, should come in for a share, for that the words of exclusion were not plainly expressed, and should be taken strictly in that case: but the decree was reversed by the house of lords, who decreed that the surplus should be distributed according to the statute of distributions, except that the two children excluded by the will, should be excluded from shares in the distribution. Vachel v. Jeffries, Prec. Ch. 169, 2 Eq. Ca. Abr. 435, pl. 17, 8 Vin. Abr. Devise, C. e. pl. 7, p. 445, best reported, by the name of Vachel v. Breton, 5 Bro. P. C. Tomlin’s edi. p. 51. This case, they remarked, was mentioned by the master of the rolls (sir R. P. Arden) in Pickering v. Stamford, 3 Ves. 338, and he understood the ground of the decision as they did, and admitted its authority: he said, that Vachel v. Breton did not militate against his opinion,' “for there it might fairly be held, that the exclusion was for the purpose of giving a benefit to the others.” But lord Loughborough said, that as to Vachel v. Breton, he conceived that there was some idea (and there was something in the cases which led to that) that courts of equity had a latitude to refuse raising a resulting trust against executors taking the interest at law, in favor of children upon whom the testators had put so strong a note describing them as illegitimate; that the point between executors and next, of kin was in some doubt at that time (in 1706); and he concluded by expressing his disapprobation of the decision; Id. 494; yet *the reason which he assigns for the decision did not appear in any of the reports of the case; and his disapprobation could hardly outweigh the authority of the superiour tribunal: the decisions of the house of lords were always, in fact, founded on the advice of all the judges. They also referred to Snelgrove v. Snelgrove, 4 Desaus. 274, 301-3, where chancellor Desaussure, commenting on Vachel v. Breton, inclined to the opinion, that the illegitimacy of the two excluded children (intimated by the testator in his will) had much influence in the decision in the house of lords; though he acknowledged, at the same time, that little notice was 'taken of that circumstance in the report of the case; and considering the known law of England on the subject of legitimacy, it was a circumstance which could hardly have had any weight. But there was one circumstance in the decree in Vachel v. Breton, quite decisive to shew that neither lord Lough-borough nor chancellor Desaussure had found the true ground' of the decision; namely, that the testator’s widow, the mother of the excluded illegitimate children, was let in for her full sharí (one third of the subject) in the distribution.
    Macfarland and Allison, for the appellees,
    commented, in the first place, on the language of the paper in question. Mr. Boisseau there said, that'“not having made any will so as to dispose of his property,” — “in case he should not make one, he wished that instrument” to exclude his two sisters and their husbands from any share of his estate; and in the memorandum indorsed, he declared the purpose of the paper to be, to prevent the husbands of the two sisters from having any part of his éstate, in right of their wives, “without a will made by him.” Now, to imply a devise and bequest of his whole estate to his other heirs and next of kin, against his own declaration, that he had made no will to dispose of his property, and that this paper was intended, in case he should not make a will, to serve the sole purpose of excluding his two sisters and their husbands from any share of his estate, and of preventing the husbands from taking any part of it in right of their wives, without a will made *by him; this, they said, would be nothing less than to make a will for the decedent. His words shewed, that he was not then disposing of his estate to any particular persons; that the only purpose then in his mind, was to exclude these two sisters and their husbands; to disinherit them, though he should not give the estate to any body else. It was most evident, that he intended to make a will at some future day, which should contain a positive disposition of- his estate.
    They said, the power of a man to disinherit his heirs at law and next of kin, or any of them, was only an incident to his power of disposing of his estate to whomsoever he pleased. He could not disinherit them by deed, or by will, shewing that purpose, and no more. This resulted from the law which gave him the power to dispose of his estate by last will and testament, not to disinherit his heirs and next of kin: he might disinherit them, indeed, by giving it away from them to other persons, but by no other means. And, accordingly, it was well settled, — so well settled, that the counsel for the appellants were obliged to admit, —that, notwithstanding an apparent or declared intention of a testator to disinherit his heirs at law or next of kin, yet if he leave his estate or any part of it undisposed of, it will pass to them by descent or succession. But to construe the disinherison of some of several co-heirs and distributees, a devise and bequest, to the rest, would be, in effect, to evade and to abrogate this rule of law; to give effect to the simple disinherison, by holding it tantamount to a positive disposition. It would be futile to say, that mere words of disinherison should not be operative to exclude the heirs, unless the estate be disposed of to other persons; and then, that such words of disinherison should operate by way of implied devise and bequest to the other heirs and next of kin, and so effectually disinherit those who are excluded. .
    The only color of authority which the appellant’s counsel were able to find for the proposition they endeavoured to maintain, was the case of Vachel v. Breton ; but the grounds of that decision were -not stated; they could only be conjectured, and various conjectures had been made. The case *was anomalous, and had never been followed. On the contrary, it was disregarded and overruled in Pickering v. Stamford: for there, the testator had given certain parts of his real and personal property to his wife, “'in full satisfaction of all dower or thirds which she could claim out, of his real or personal estates;” in other words, he had plainly excluded her from any more; and yet she was Held entitled to her share, namely, one half of the undisposed of personal subject, according to the statute of distributions. And in this, Pickering v. Stamford conformed with the uniform course of decision: the decision in the house of lords in Vachel v. Breton, if the counsel for the appellants understood it aright, was opposed to it. The question in Vachel v. Breton, was a question between the executors and next of kin — whether the undisposed of subject belonged to the executors, or whether there was a resulting trust for the next of kin — a trust, which might be repelled by extrinsic as well as intrinsic circumstances ; and the decision was, that such a trust could not result in favor of children whom the testator did not believe were his own, — whom he described as his wife’s children.
    In Denn v. Gaskin, the testator gave his heir at law ten shillings; .that is, he disinherited him; and then he gave his nephews real estate, without adding words of inheritance : and it was held, that the exclusion of the heir was not sufficient even to enlarge the estate of the devisees from a life estate to a fee, by implication. How could the disinherison here, suffice to raise a devise by implication, to those to whom no devise was made? and a devise by implication of the whole interest?
    An estate, they insisted, could not be taken, partly by devise and bequest, and partly by descent and succession as ab intestato, in the manner in which this estate was claimed for the appellants. The disinherison of the two sisters did not prevent the intestacy. There could be no testacy without some language intimating design to devise and bequeath; there could be no devise or bequest, unless the subject disposed of, and the persons to whom it was given, and if there xwere many, the shares they should take, were in some way pointed out. Suppose the testator intended to give the estate to his heirs and next of kin, referring to them by that language as a description of devisees, would they have taken according to the statute of descents and distributions, per stirpes? or all, equally, per capita? If instead of so describing them he had named them, and given them the estate without indicating their portions, they would all have taken equal shares; Crow v. Crow, 1 Leigh 74. And yet if he had indicated the devisees and legatees by description, one would think they should have taken, as purchasers, in like manner as if he had named them; all equally, per capita. But it was not pretended, that the court could imply such a devise and bequest as that. How could the court raise a devise and bequest by implication, to the testator’s heirs and devisees other than the two excluded sisters, in such shares as the statutes of descents and distributions would give them, in case he had died intestate, and the two excluded sisters had died before him, without leaving children? A testamentary disposition superseded the operation of those statutes; the operation of the statutes presupposed an intestacy. How could the court say he intended to exclude any children the two excluded sisters might have at his death, from taking equal shares with his other nephews and nieces, the children of his deceased brother and sister? The children of the excluded sisters were equally near to him; and if their mothers had offended, they had not. To make this disinherison of the two sisters, a devise by implication of the testator’s whole estate real and personal to his other heirs and next of kin, to be divided among them according to the statute of descents and distributions, would be, therefore, in the first place, to make a forced disposition of the testator’s estate, when he had made none, and when indeed he had only indicated an intention to make one at a future day; and then by an equally violent implication, to provide a rule for apportioning his bounty among the objects of it.
    
      
      wills — How Heirs Disinherited, — A man can disinherit his heirs only by unmistakably giving his estate to some one else. This principle results from the nature of property ; for property is the creature of law, and the law will dispose of it, unless, under the permission which the law gives the owner to make a will, he disposes of it. For this proposition, see the principal case cited in Sutherland v. Sydnor, 84 Va. 883, 6 S. E. Rep. 480: Coffman v. Coffman, 85 Va. 463, 465, 470, 8 S. E. Rep. 672 ; Carney v. Kain, 40 W. Va. 820, 23 S. E. Rep. 660.
    
    
      
      Same — Same—Devises by Implication. — It is true that a devise to others, which will disinherit, need not be a devise in express words. If, however, it be not given in express words but by implication only, the implication must in every case be necessary to carry into effect the clear intention of the testator. Conjecture cannot be taken for implication in such case. Beard v. Beard, 22 W. Va. 136. By "necessary implication” in such case is meant so strong a probability of intention, that an intention contrary to that which is imputed to the testator cannot be supposed. Sutherland v. Sydnor, 84 Va. 882. 6 S. E. Rep. 480 ; Beard v. Beard, 22 W. Va. 136, 137. both citiDg the principal case.
      See the principal case also cited in French v. French, 14 W. Va. 476.
      Same — Cardinal Rule of interpretation — Intention.— See. citing the principal case. McCamant v. Nuckolls. 85 Va. 337, 12 S. E. Rep. 160, and foot-note to Cheshire v. Purcell, 11 Qratt. 771.
      On each of the subjects touched on in this foot-note see monographic note on “Wills.”
    
   *CARR, J.

It was contended for the appellants, that the instrument of writing left by Mr. Boisseau, contains a complete disposition of his whole estate, real and personal, which is said to be large; and on the other side, that it bequeaths two legacies of 500 dollars each, contingently, leaving the testator intestate as to all the rest of his estate.

When I heard the argument (and it was very ably argued on both sides) I was strongly impressed with the opinion, that this was a full disposition of the whole estate; and the impression remained for some time; but it grew weaker, as I looked more closely into the subject, and especially into the will itself, till at length I became convinced, that this must be pronounced an intestacy as to all but the two legacies. When I say convinced, I do not mean that I have no doubt, but that this is the decided inclination of my mind.

The books have laid down many rules to assist us in the construction of wills. The great point to be ascertained, is the intent of the testator. Where this is clear, and violates no rule of law, it must govern with absolute sway; every thing yields to it. Property real or personal, even to the disinherison of the heir, may be given by implication, if such implication be necessary to effect the clear intent of the testator. In Wilkinson v. Adam, 1 Ves. & Beam. 465, lord Eldon says, “With regard to that expression necessary implication, I will repeat what I have before stated, from a note of lord Hardwicke’s judgment in Coriton v. Hellier; that in construing a will, conjecture must not be taken for implication ; but necessary implication means, not natural necessity, but so strong a probability of intention, that an intention contrary to that which is imputed to the testator cannot be supposed.” Again, lord Mansfield (as cited by lord Lougborough, in Lytton v. Lytton, 4 Bro. C. C. 460), says, “A great dispute has been made, of what is a necessary implication” — “It is that implication which arises upon the words the testator has made use of, that clearly satisfies the court what was his meaning — and that, as putin opposition to conjecture.” Let us look now at the writing 'xin question. No words could have expressed, more clearly and strongly, the intention of the writer, to exclude his brothers in law, and their wives too, unless they survived them, from all participation in his estate. But it was admitted, that mere words of exclusion would not operate, as a man can only exclude his heirs and next of kin, by an actual devise or bequest to others.

It was strongly contended, however, that this will, by clear and necessary implication, gave the whole estate to the heirs and next of kin (as designated by the statutes) excepting the two excluded sisters and their descendants, from all but their contingent legacies. Many authorities were cited and discussed; but the view I take of the case renders it unnecessary to examine them. My opinion is formed, on the paper itself. After the most careful consideration, it seems to me, that so far from furnishing a necessary implication of the writer’s intent to dispose of his whole estate, it shews strongly, that he did not mean by this writing to dispose of one cent beyond the two legacies of 500 dollars. Intention being the life and soul of a will, it can hardly be imagined, I presume, that a man can make a will without intending to do so, or give by it more than he means to give; especially, a man who has been long in business, has made a large estate; and knows well how to express his meaning. Such men are most particular; knowing the full value of their property, they bestow it with care and caution, and parcel it out with particularity among the objects of their bounty. Can we suppose, that such a man sitting down with the deliberate intention of giving away his whole estate, lands, slaves and other personalty, would have expressed such intention in the way this paper does? Is it the natural, the probable manner, in which a plain man of business would divide and dispose of his property? Merely to exclude two sisters from all, but a small legacy, without saying one word about the rest of his large estate, though he meant to dispose of the whole, and that by this very paper? Taking even this general view of the subject, I cannot believe, that any man would act thus.

*But this opinion is greatly strengthened, by a more particular analysis of this paper. He begins thus, “not having made any will so as to dispose of my property” — what then? we should naturally conclude, that if he meant this writing to be such will, he would go on to declare it. But no; he proceeds, “and two of my sisters marrying contrary to mjr wish, should I not make one” (could a man, in his senses, put these words into the very will he was then writing?) 1 ‘should I not make one, I wish this instrument,” —to do what? “to prevent their husbands from having a cent of my-estate, and my sisters also, unless they outlive their husbands — in that case I leave them 500 dollars each.” Do not these words clearly shew, that the sole purpose of this paper was to exclude the offending parties, except as to the 500 dollars each? that he never had the idea, that by this writing he was disposing of his estate? If he had meant this as his will, would he not have called it so, and not have spoken of a future intention, a suspended intention, of making a will? Would he not have appointed executors?But farther, look at the indorsement written by himself‘on this paper — “Memorandum, to prevent Bennett Aldridge and Burwell Aldridge from having any of my estate, that each might claim in right of their wives, without a will made by me.” This shews to me, his knowledge, that if he died simply intestate, these men might claim part of his estate; which claim he thought he could prevent, and meant to prevent by this instrument, in case he should not write a will; repeating the idea he had expessed in the body of the paper, — ‘ ‘not having made a will, should I not make one, I wish this instrument to prevent” &c. The two contingent gifts of 500 dollars entitled this writing to probate as a testamentary paper; just as an indorsement upon, a note, “I give this note to A.” may be proved as testamentary. Chaworth v. Beech, 4 Ves. 555, 565. But not a step further can I agree to extend it; for I am well satisfied, that the writer never dreamed of this as a will disposing of his estate generally.

*It would seem hardly necessary to-cite cases in support of this view of the subject; but I will refer to one, Matthews v. Warner, 4 Ves. 186, 5 Ves. 23. There, a paper was written, which began thus, “2nd Nov. 1785. A plan of a will proposed to be drawn out, as the last will and testament of William Matthews &c.” The writer then went on by words of “present disposition,” to give away his whole estate, making residuary legatees, appointing executors, signing and dating the paper, the whole being in his own handwriting — upon it was this indorsement, “2d Oct. 1785. A plan designed for the last will and testament of Wm. Matthews, storekeeper &c.” The judge of the prerogative-court decided this to be a valid will. Upon appeal to the court of delegates, the decision was affirmed. The case was then heard by the lord chancellor, upon a petition for a commission of review; and he thinking it not a valid paper, a commission of review issued; under which (as we see 5 Ves. 23), the sentence of the court of delegates and prerogative judge, was reversed, and the deceased declared intestate. Upon the hearing before the chancellor (lord Lough-borough) he makes some strong remarks, which seem to me very appropriate to the-case before us. After dwelling with emphasis on the commencement and indorsement, calling it the plan of a will proposed to be drawn &c. and admitting that it contains legatory words of present gift &c. he adds — “I should have no difficulty, sitting as I have sat in a court of law, to put it so-to the jury, that I should expect a verdict, that he had not devised, that it was no will, but only a project of a will, — not a complete, definite rule of law for settling his fortune. It is' not, it cannot be, denied, the argument presses so strong, that upon the perusal of this paper, the natural conclusion is, that it was his intention to make a more formal paper than this. That inference cannot possibly be avoided. Then, ex hypothesi, this paper, at the time he subscribed it, wasnot the law, the testament.” And so I say of the paper before us, that it was never the law, the testament, by which Boisseau meant to dispose of his ^'estate, further than as to the two legacies of 500 dollars. I am for affirming the decree.

CABELL, J.

I concur in affirming the decree.

BROOKE, J.

It is somewhat remarkable, that this case has no exact example in any of the english cases which have been cited, or to which I have been able to refer. It must be decided, therefore, on principle and not on authority.

I think it is a principle not to be controverted, that a testator cannot disinherit his heir, unless he devises his estate to somebody else. This principle is fully recognized by lord Mansfield in the case of Denn v. Gaskin. To give to a testator the power to disinherit his heirs, whom the law has appointed to take the estate, unless he devises it to some other person, would be, in effect, to give him authority to repeal the statutes of descents and distributions. That a testator may disinherit his heirs, by giving his estate to somebody else, cannot be doubted ; but if, in every case in which he intends to exclude his heirs from the inheritance, it is to be implied from that alone, that he devises his estate to those who (some of his heirs being excluded) would take the inheritance, the principle, that to disinherit his heirs he must devise his estate to somebody else, would be of no consequence; because every exclusion of his heirs would be a devise to somebody else.

This principle, that a testator cannot disinherit his heirs, unless he devises his estate to somebody else, results from the nature of property. It is the creature of the law, and the law will dispose of it, unless, under the permission which the law gives the owner to make a will, he disposes of it. And, in examining cases of this kind, we are not to forget, that those who claim under the law, have as strong a claim to the property, as those who claim under the will; indeed, somewhat stronger, since it is a settled principle, 'that if a devise gives no other estate than the law gives, those who are to take, take under the law and not under the will, their title under the law being preferable to their title under the will.

*With these remarks, I shall proceed to examine the will before us. The first remark I shall make on this “instrument,” as the testator calls it, is, that it wants at least one of the features of a will; the testator makes no executor; which is some evidence, corroborated by the terms of the instrument, that he did not intend it as a will of his whole estate, but to have no other operation than to exclude his two sisters, and their husbands, from any other portion of his estate, but the two legacies given to the two sisters in the event they survived their husbands, and in the event of his not disposing of his estate by another will. His whole mind appears by the instrument, to have been occupied with the intent, first, to exclude the husbands of his two sisters from getting any portion of his estate, and secondly, to exclude his two sisters themselves, except the two contingent legacies bequeathed to them. The memorandum upon the instrument explains his main intent ro be, to exclude the two husbands from getting any portion of his estate. Taking the meaning of both (the instrument, as he calls it, and the memorandum) from their words, language could not be more full to convey this intent, and no other. To infer that the testator meant more, I think is impossible. That he meant to give the rest of his estate to those who> would take it, according to law, the two sisters being excluded, — would be an inference that would violate every fair construction of the instrument and memorandum, and would establish a principle in direct opposition to the acknowledged principle, that a testator cannot disinherit his heirs, unless he gives his estate to some one else. The inference that he does give it to somebody else, from the mere exclusion of some of his heirs, without a single testamentary expression to justify it, would give to a testator the power to repeal the law of descents and distributions: for, as he has not designated those who are to take under the will, and they are to take by inference only, they would take according to the law, but not under the law.

No judge was more accurate in language than lord Mansfield. In Denn v. Gaskin, he said, that though the intention *is ever so apparent, the heir at law must inherit of course, unless the estate is given to somebody else. What intention was meant? The intention to disinherit the heir. Now, the inference from that intention, if sufficient to give the estate to somebody else, would have rendered the words “unless the estate is given to somebody else,” entirely superfluous.

To carry the doctrine of implication so far, would make a will for the testator, and not interpret the will made by him. When a testator has devised his estate by will, and is not precise as to the persons who are to take, or as to the quantity of estate they are to take, — from necessity, and to effectuate his intention to dispose of his estate, and not to leave it to the law to dispose of it, courts imply his intent as to persons and the quantity of estate they are to take. But when the question is, whether he intended to devise his estate or not, we are not authorized to imply that he does, unless it is a necessary inference from the language he uses. In Denn v. Gaskin, the testator began his will thus, — “As to all such worldly estate as God has indued me with” &c. and the question was, whether by inference from those words, the devisees in the will took a fee or life estates? Lord Mansfield said, “he does not say in the introduction, that he means to dispose of all of his estate; but that with respect to it, he devises so and so.' If he did mean it; the misfortune is, that quod voluit non dixit.” He would not infer from the words “as to all such worldly estate as God has indued me with,” that the testator meant to dispose of all of his estate ; because if he did mean it, he had not said it: he would not by inference dispose of the testator’s estate for him; because it was not a necessary inference from the words used, that he meant to dispose of his whole estate.

The case on which most stress was laid in the argument, by the counsel for the appellant, is Vachel v. Breton, decided in the house of lords. Upon consideration of that case (which is doubtfully reported) I think it will be found not to have turned on the question now before us. The reporter of it refers to Mason v. Hawkins and Matthew v. Fitzsimon, *4 Bro. P. C. 7, 11, for the principle on which it : was decided. In Vachel v. Breton, the testator had disposed of his whole estate; there was no intestacy, nor any question on that point: he bequeathed to two of his wife’s children (whom he did not own as his) ten shillings, each, and no more, and to his other children specific legacies in place &c.; he appointed his executors, and gave them legacies, but did not add, for their care and pains, or any thing to that purpose: and the question was, whether the executors were to take the surplus, notwithstanding they took legacies, or whether it was to be distributed among all the children,including the two to whom ten shillings and no more was bequeathed by the will? The court deciding that the executors took the surplus as fiduciaries, and not'in their own right, the question then was, how it was to be distributed? whether among all the children, as had been decreed by the court of chancery, or in exclusion of the two children to whom ten shillings only had been bequeathed? and the house of lords decided against the two latter children, but not on the principle, that the testator had excluded them by giving his estate to somebody else, inferrible from the terms of the will alone excluding them from the inheritance. No such inference was necessary. The testator had devised the whole of the estate, and but for the devise of the legacies to his executors, they would have taken the surplus; and that was to be distributed according to the intention of his will, to be collected from every part of it. The doctrine of implication as to whom he intended to give his property to, was entirely applicable. The testator had availed himself of the permission of the law to dispose of his property; he had taken it out of the hands of the law; and the court was to decide to whom he had given it. His will was not like th,e one before us, in which the testator has designated neither the persons who are take, nor the quantum of estate to be taken, all of which is to be inferred (if at all) from the single circumstance, that he meant to exclude his two sisters and their • : : i i ¡ ; . : 1 i ■ : i husbands.

"The case of Pickering v. Stamford, was commented on in the argument. In that case, after a devise in satisfaction of the widow’s dower, in the strongest language of exclusion of his wife from taking any other part of his estate, the testator devised a large portion of his estate to a charity; but a portion of it, consisting of real securities, did not pass, being prohibited by the statutes of mortmain, and, of consequence, he died intestate as to that portion. The trustees appointed could not take. The widow was held not to be barred of her share. Claiming under the law, she was entitled to recover her share in that portion of his property, which the testator had not disposed of, and as to which he died intestate. Strongly .expressed as the intention of the testator was to exclude her, the court did not infer from that circumstance, a devise to somebody else, and thereby exclude her.

The difference between the cases of Pickering v. Stamford and Vachel v. Breton, consists in this; that in the former, there was an intestacy as to a portion of the property, and the widow could not be ex-eluded from her claim under the law, the property not being given to any one else; but in Vachel v. Breton, the property was given to somebody else; the executors took it; there was no intestacy as to any por.tion of it; but legacies being given to the executors, they took the propertj’', not in their own right, but as fiduciaries for the next of kin; and on that ground, the court excluded two of the children, according to the expressed intention of the testator.

I think the decree must be affirmed.

TUCKER, P.

The will which is the subject of litigation in this case, presents, in my opinion, a question of very great difficulty ; and though I have, after an anxious investigation of it, arrived at the conclusion which the authorities, and the reason of the case, seem to demand, I confess I am not entirely without a doubt of its correctness.

To enable us to arrive at the real point upon which the case at last must turn, it may be as well to get rid at once, of a good many matters which otherwise might embarrass the *discussion of the real question. I shall, : : : therefore, at the threshold, remark, that the character of this instrument as a testamentary paper must be taken, if not as a concessum, at least as a matter adjudicated, and which in this case cannot be contested. It is a will, and has been admitted as such by the court of probat, and is valid both as a will of real and personal estate, if any such be disposed of by it. If, indeed, there be no such disposition, then there can be no doubt that it is ineffectual. For the statute gives the power to devise, and not merely to disinherit; and nothing can be more just than the position taken by Mr. Macfarland, in his verjT lucid and able argument, that the heir cannot be disinherited by a will which does not dispose of the estate to another. So too, it is very well settled, by the uniform and concurrent opinion of the learned, that the heir at law shall not be disinherited, except by express words or by necessary implication. And this, I conceive, not from any peculiar partiality to the heir growing out of the doctrines of primogeniture, but for other and higher reasons. The law having, upon the principles of natural affection and duty, — modified, indeed, by the policy which gives a preference to the eldest son over his brethren, — prescribed the course of transmission of the estate of a decedent, will not imply, that he has suppressed the dictates of natural feeling, or disregarded the rule established by the law, unless the intention to do so is clearly to be demonstrated. Indeed, the law having provided for the descent to the heir, his title is certain and unquestionable, unless it be taken away by the testator. Shall that certain and unquestionable title, then, be defeated by doubtful implication? Shall a right having its foundations in nature, and its sanctions in municipal regulations, be overthrown, unless by express provision or necessary implication? Assuredly not; and it is for this reason, which applies not less to the descent of estates in coparcenary than to the law of primogeniture, that the courts have always held, that the heir shall not be disinherited by mere words of exclusion, which do not imply a devise to another. I concur, therefore, in the opinion of chief justice Tilghman, in French v. M’Ilhenny, *2 Binñey 20, that the rule of the'english law, in this respect, is not less applicable to our institutions, than to those of Great Britain. Our law may be said, indeed, to be a transcript of the human affections, and I cannot think, that, upon slight presumptions or implications, a testator shall be made to violate them.

I proceed, next, to observe, that as no man can institute a law of descent for his own property, in conflict with the general law, so if in this case the relations not excluded, are entitled to the whole estate, they must take it as devisees, and not as heirs. This is, indeed, sufficiently obvious as to that portion of the property, which, but for their disherison, would have fallen to the lot of the two sisters mentioned in the will. But it is not less true as to the residue; for it cannot be, that those who take should hold undivided portions by descent, and other undivided portions by devise; nor, indeed, would they hold any portion in the same manner as they would have held it in the case of an intestacy.

The real question in the case, then, is, whether there is devise in this will, to the heirs of the decedent other than the excluded sisters?

There is certainly no express devise. But it is well settled, that an estate may pass by will without express words, where the intention to devise is necessarily to be implied. And this is but a fair and proper construction of the statute of wills. For that statute authorizes the devise of estates, without prescribing any form in which the power shall be exercised. And as there is no set form of words for devises, so it has come to be a canon of the law, that the intention of the testator expressed in his will shall prevail, provided it be consistent with the law. Hence, the first inquiry, in the construction of a will, always is, what is the intention of a testator? and the second is, whether that intention is consistent with the law? If it be, then it is the province of the court to effectuate it, and so to mould its provisions, as to render them consonant with law, and agreeable to the design of the testator.

*A court, however, can make a will for no man. And if the testator has so expressed himself as to shew, that whatever he may have designed, he has not carried that design into execution, the defect cannot be supplied. Voluit non dixit is the judgment to be pronounced upon the case. Yet this principle is in nowise incompatible with the construction already adverted to, which creates a devise by necessary implication. It only inhibits the implication of a devise, where there is no necessity for it. Thus, if a man devises lands to his heir after his wife’s death, the wife by implication shall have it for life, although it is not expressly given to her. Vaughan 262, 263. For, as the heir is not to have it till the wife’s death, and as nobody else could, the implication is inevitable, that the testator must have intended the wife to have it, though he has not expressly said so. But, if the testator devises lands to a stranger after his wife’s death, this is no devise to the wife ; for as the heir may hold it during her life, there is no necessary implication that he intended the wife to hold it; however strong the probability, that as he postponed the devise to the stranger, till his wife’s death, he therefore looked to her enjoyment of the estate in the mean time. 6 Cruise 206; Vaugh. 259 ; 2 Lev. 207.

Let us now proceed to look into this case. The testator, obviously with a knowledge, that in the event of his intestacy, his sisters who are named in the will, would come into the inheritance with his other heirs, unless he should provide otherwise, executed this testamentary paper, declaring its intent to be, to prevent the husbands of his sisters Martha and Dorothy from receiving one cent of his estate, or his sisters themselves, unless they should survive their husbands, and then only 500 dollars each. And the question is, whether these words are to be construed as giving, by implication, the whole estate to the other heirs? for it cannot be denied, that if they fall short of that, — if they are to be construed only as words of exclusion,— they do not operate to break the descent, but the estate will descend and pass to all the heirs, as if this instrument never had been made.

*Apply now the rules already mentioned. What was the intention of the testator? About this, I think, there can be no doubt. That he designed to exclude the sisters, is expressed. That he knew that by law his estate would, in case of his death, have gone, but for this paper, to them and others, is not merely to be fairly presumed, but is inevitably implied from the very act of preparing such a paper. If, then, he excluded them, but did not exclude the others, who by law would take if not excluded, it is clear he did not design to exclude these last, but did design that they should take the whole.

Here, then, is the intention of the testator, plainly and necessarily implied. That intention having nothing in it inconsistent with the rules of law must be effectuated. And how? By construing the will to be a devise to all the heirs of the testator, except the two sisters who are expressly excluded.

This, however, is contested, as in conflict with the principles recognized from generation to generation by the sages of the law, that though the intention to disinherit the heir be ever so apparent, the heir at law must inherit unless the estate is given to somebody else. And it is ingeniously remarked, that the principle thus established, would be wholly defeated, if, upon mere words of exclusion, we>were to build up a devise by implication. It behooves us, therefore, to examine this doctrine and the cases cited, more narrowly, in order to see how far they go.

That the exclusion of the heir even by implication, and without express words, may raise an estate by implication in another, is proved by the familiar case before cited of a devise to the heir after the death of the testator’s wife. Here, although the exclusion itself is but implied, yet there is an estate implied in the wife, from that implied exclusion. Much more, then, it would seem, may an estate be implied from an express exclusion. So ton, where a man has two daughters, his coheirs, and devises to one of them after the death of his wife; this is not only an implied exclusion of that daughter, but it is an implied exclusion of her sister *also, they making together but one heir; and from this double implication of exclusion, an implication is raised of a life estate in the wife. It cannot, then, be affirmed to be a universal rule, that from words of exclusion merely, a devise by implication cannot be raised.

The cases which have -been cited, when properly understood, do not necessarily sustain the proposition. In all of them, it will be found, than an estate was not implied, because, in fact, there was no necessary implication to. be made from the provisions of the wills. Thus, in Denn v. Gaskin, the devise was to A. B. and C. equally, without words of inheritance super-added. The testator gave his heir one shilling; which we will take to have been equivalent to an express exclusion. The question was, whether the estates of A. B. and C. were to be construed to be fees, either by reason of the introductory clause, or by reason of this exclusion? It was decided in the negative. And it was asked, in the case before us, if the exclusion of the heir there, could not even enlarge by implication the life estates expressly given to A. B. and C. can it be construed to give and create an estate out and out, here? The answer, I think, is easy.

In the case of Denn v. Gaskin, admitting the exclusion of the heir, there was nothing from which the court could certainly infer what the testator designed as to the inheritance in the lands. He had given to A. B. and C. an estate, in effect, only for life, since there were no super-added words of inheritance. ' It was as much a life estate as if he had expressly declared it to be for life and no longer. Now, although by the express exclusion of his heir, we should infer that he did not intend him to take the inheritance, yet by giving an estate only for life to A. B. and C. it was equally clear, that he did not design that they should take it. To have given them the inheritance by implication, therefore, would have been to have made a will for the testator, and that too against the plainly expressed design that they should only have a life estate. The fair inference, as he had disinherited his heir, and limited an estate only for life to his nephews, was, that if he had gone on to dispose *of the inheritance, he would most probably have limited it to the sons or descendants, either of the disinherited heir, or of the nephews who-had but life interests given to them. This, at least, may have been his intention; and therefore the implication of his intention to enlarge the estate of the nephews into a fee, being only a possible and not a necessary one, could not be made consistently with legal principles. And as the implication could not be made, the fee was undevised and descended to the heir, of course, in spite of the clause by which his disherison was intended. Again, in Denn v. Gaskin, the estate having been limited to both nephews, the setting aside the heir did not necessarily imply that they should be the heir; for if he had been dead, both of them could not be heir. It could not be fairly implied, that he designed to substitute them both for his heir, since, if the heir at law-were out of the way, the eldest of the two-alone would have been heir. Had the testator, indeed, disinherited the heir, and then devised to the next in succession, without words of inheritance, there would have been more reason for implying those words; since, in that case, the act of disherison of the person on whom the estate would devolve by law, seems to have the mere design of putting that person out of the way, that he may not impede the descent to the next in succession. Such is the case here. The testator, knowing that by law his estate would devolve on four, strikes one of the four out of the succession, that the other three may take the whole. That he must have understood it as having that effect, can scarcely be denied; and that he did it with that end, I have not a doubt.

The explanation I have given to Denn v. Gaskin, furnishes, I think, the solution of the cases of Right v. Sidebotham, Doug. 759, and Right v. Russell there cited. I shall, therefore, add nothing more as to them.

. The case of Jackson v. Shauber, 7 Cowan 187, was an ejectment, and the question merely as to the legal title. The case may have been properly decided upon the ground, that whether the heir took the legal title or not, could not affect the disposition of the beneficial interest made by the testator. ^Admitting the legal title to have been in the heir, he was still a trustee for the benefit of those for whom the estate was to be sold. There was, therefore, no necessity for construing the legal title to be in the executors, contrary to the express fact, that the limitation gave them only a naked authority.

No case, indeed, has been cited on the part of the appellees, which, as I conceive, is in point to that under consideration, though the expressions used by the judges are broad enough to justify very strong inferences in behalf of the heir. On the other hand, there are many cases in which implied estates have been raised, or limited estates enlarged by implication, with or without an exclusion of the heir at law or distributee. Such are the cases already cited, of the devise to the heir after the death of the wife, and the devise to one of two daughters, co-heiresses, after the death of their mother. The case, however, which seems nearest in point, is that of Vachel v. Breton. In that case the testator, having first given some specific and pecuniary legacies to his executors and others, directed, that his executors, out of his personal estate, should pay to two of the children of his wife (as he denominated them) ten shillings each, and the same sum to any afterborn child of his wife, but he made no provision as to the residue. The executors were deemed to be excluded from the residuum by the legacies given them. The question was, what was to be done with the residuum? Should it be distributed among all the children, upon the idea of an intestacy, as to that part of his estate? or was the will to be construed as impliedly giving to •the distributees who were not excluded, what was plainly denied to the children who were excluded by legacies of ten shillings and no more. The court of chancery decided, that the excluded children should •come into distribution. The house of lords decided, that the whole estate should be divided among those who were not excluded.

This case is so strongly analogous to that before us, that it has very naturally been assailed by the counsel for the appellees, and several cases have been cited, in which it seems to have been questioned. In Pickering v. Stamford, *the master of the rolls, in delivering his opinion, gives as I conceive the true exposition of Vachel v. Breton, in saying, “there it might fairly be held that the •exclusion was for the purpose of giving a benefit to the others.” The lord chancellor, however, afterwards, in the same case, did impugn the authority of this case, declared his disapproval of the reversal of the decree at the rolls by parliament, and says the case does not seem, to be a case to be followed. Now it seems strange, that the inferiour tribunal should thus, by its Ipse dixit, overthrow the judgment of the superiour; and it is still more strange, as there was, and is, no conflict between Pickering v. Stamford and Vachel v. Breton. The former is a case of resulting trust, where one of the trusts declared proved void: the rule, in such cases, is uniform that the part resulting must go to the heir •or distributees generally (according to the nature of the estate, whether real or personal). But Vachel v. Breton, was not strictly speaking the case of a trust. It was a case upon the construction of a will. The real question was, whether in defect of an express disposition of the residuum, from which the executor was excluded by a legacy, an implied bequest of it to the children who were not disinherited, should or should not be raised? It was decided that it should. It could not have been decided otherwise. Out of the whole personalty (except some specific and pecuniary legacies previously given to the executors and others) only thirty shillings was disposed of, viz. ten shillings each to two living children, and a like sum to the child with which the wife might be enseint. It was admitted, that this bequest to them of ten shillings and no more, was designed to exclude them. What was the purpose of that exclusion? As the master of the rolls says, “it might fairly be held that the exclusion of them, was for the purpose of giving a benefit to the others.” His will was, that they should be excluded. Was there any thing unlawful in that will? If not, it should have been effectuated. How? By declaring an intestacy as to the great bulk of the personalty, and letting in those who were expressly excluded? Or, by raising a bequest *'to the others by necessary implication? The latter, assuredly. It is a case for implication, I conceive, according to all the authorities; “since an intention contrary to that imputed to the testator by the creation of such an implied devise, cannot be supposed'. ’ ’

Upon the whole, I am of opinion, that we must construe this will as a devise by implication of the real estate to the heirs at law of the testator, and of the personalty to his distributees, with the exception, as to both, of the sisters who are excluded by this testamentary paper. They will take as devisees and not by descent, though in ascertaining the persons to take under the will, reference must be had to the statutes of descents and distributions. They will take also as tenants in common, and not as jointenants; 1 Scho. & Lef. 84. Nor is there any thing anomalous in this; for wherever a devise is to the heir or next of kin, who take as purchasers, or wherever a strict settlement1 is to be made under articles by which the heir and next of kin are to take as purchasers, the law of inheritance, and the statute of distributions, are referred to, to ascertain the persons who are to take. Tabb v. Archer, 3 Hen. & Munf. 399.

It is not probable, that a case of this description will often occur. But, if it be decided, that the will does not operate to pass the estate to the heirs who stand in the same degree with those disinherited, it may operate unjustly, and to the overthrow of wills which ought to be sustained. Thus, if a man having three brothers, says, “Having already made an ample provision heretofore for my brother Thomas, I hereby declare that he shall take no portion of my estate,” without saying more; this express declaration would be defeated, and he would come into the inheritance with his other two brothers, and thus have a double portion, against the express will of the testator. I cannot think this can be law.

I am of opinion, that the decree should be reversed; but my brethren having taken a different view of the subject, it must be affirmed.

Decree affirmed.  