
    MAY TERM, 1785.
    Abel Browne’s' Lessee against James Anderson.
    THIS was an ejectment for a tract of land called fiar wood, lying in Anne Arundel county.
    It appears by the special verdict found in this case, that Abel Brown, the grandfather of the lessor of the plaintiff, was seised of the tract of land in question, and being so seised, some time in the year 1698, he executed Ms last will and testament, in which was contained the following devises :
    “ I give and bequeath unto my dear and well beloved son, Robert Browne, and to the heirs of his body lawfully begotten, all my lands, tenements and hereditaments, lying or being in the province of Maryland or elsewhere, (to say,) all that tract or parcel of land whereon I now live, called and known by the name of Harxvood, situate, lying or being, in or near Road River, in Anne Arundel county, which is laid out by survey to contain 150 acres, be the same more or less. But if my said son Robert Browne shall die without heir or heirs of his body lawfully begotten, then it is my will and desire, that Samuel and James Browne, the sons of my brother James Broxvne, who dwelt in the island of Bermuda., may have the aforesaid tract of land called Harwood, to them and their heirs, male or female, for ever, equally to be divided into two parts, that is, one moiety to Samuel Browne and his heirs, and the other moiety to the said James Browne and his heirs ; and for want of heirs male, then to females, or their or her heirs lineally descended, to the longest living heir or heiress of that my said brother James, his female heirs or issue. And likewise I give and bequeath to my son Robert Browne, his heirs and assigns for ever, all my tract of land called Abel's Lot, lying in Baltimore county, near Bush River, containing by survey 300 acres, more or less.”
    After declaring his debts to be paid, the testator says, il And as for all other my personal estate, goods and chattels, I hereby clearly and absolutely give and bequeath unto my said son Robert, that is, all of my personal estate that shall be found in this province of Maryland or elsewhere, after debts paid and funeral charges defrayed as aforesaid, the remainder to be to my said son Robert, his heirs, executors, administrators and assigns, and to his and their only proper use and behoof, j,y t0 disposed of as to him shall seem good and requisite after my decease.”
    ■ “ And my will and desire is, that if my said son Robert Browne shall or do die the death before he is married, or before he cometh of lawful age to dispose of the aforesaid estate lawfully which I have here given and bequeathed to him, or if he should be suddenly taken away out of this mortal life without wife, issue, or will, that then all and singular the before-mentioned personal and real estate, to my said son Robert bequeathed, shall fall, go, and be to, and for, the proper use and behoof of my above-named brother Ja?nes Browne, his children Samuel and Raines Browne, and their issue, or the issues of that family as above meant and expressed, on lineal descent; and it is my will and desire, that if my son Robert should marry before he cometh of lawful' age, and should have no issue by his said wife during his nonage, and should die and depart this world before he is of ripe years to dispose of his land before bequeathed, that shall not hinder his said wife (if at such time any he hath) from her peaceable enjoyment of the said personal estate before given, neither from her lawful dowry in the before-mentioned lands, and during her natural life, any thing in this my last will and testament to the contrary in any wise notwilhstanding.”
    The testator appoints his son Robert, “ his whole and. sole heir and executor, to pay just debts,” &c. and after the death of the testator, “ the aforesaid' given lands, premises, into his hands, possession and management, to take, and without any removal or change of property to be máde, the same to have, hold, possess and enjoy, and according to his discretion the same to husband and manure, to Iris and for his own use, property and inte-» rest and advantage, at his will and pleasure, except what is before excepted.”
    The testator died seised of the land in question, some time in the year 1702, when, in virtue of the said devise, Robert Browne the devisee, entered and was seised of the land, and on -the 8th of December, 1719, conveyed the same in fee-simple to fames Mount, who died in the year 1763, having first devised the land to the defendant and his heirs.
    
      Robert Broxvne, the devisee mentioned in the will, died in the year 1769, leaving Abel Browne the lessor of the plaintiff, his eldest son and heir at law, who in the year 1773, entered upon and made a demand of the said tract of laud of the defendant, claiming the same to him and the heirs of his body, under the will of his grandfather.
    
      Ridgely, for plaintiff.
    In order to comprehend this case, and decide it on the principles of law, it will be necessary to lay down a few rules respecting estates, from whence arguments may be drawn to satisfy the Court, whether a decision in this case should take place for the plaintiff or not.
    1st. Lands given to a man and his heirs for ever, is an estate in fee.
    2d. Lands given to a man and the heirs of his body lawfully begotten, is an estate in tail. The word body, or some other word of procreation, being necessary to make a fee-tail.
    This case must be argued upon the facts stated in the special verdict. And the only question which can arise for decision, is, whether Abel Broxvne, by his will in 1698, devised the tract of land in dispute, in fee-simple or fee-tail.
    This question is to depend on the words of the will, and the intention of the testator to be. collected from those words. What does the will say ? By the first clause, an express estate-tail is given, in as strong words as language can express, and as emphatical expressions as the law requires.
    The second clause is a devise in fee of AbeVs Lot.
    
    The third clause is : “ If my said son should die before he come of lawful age to dispose of the aforesaid estate lawfully, which I have here given him, then all and singular the before-mentioned personal and real estate, to my said son Robert bequeathed, shall go to his brother’s children.”
    The fourth clause : “ In case he should die before of age to dispose of his estate, his wife to have her dower.”
    The fifth clause makes his son executor, and directs, that he shall take possession of the estate to use at his pleasure, except as before excepted.
    
    From this will, it is plainly to be collected, that the testator intended to limit the tract of land called Harwood.i to his son in tail, else why make use of the words of his body lawfully begotten P for they were intended to mean something, or it was nugatory to insert them.
    What clearly proves this position, is the subsequent clause, where the testator devises an estate in fee in the land called Abel’s Lot. If he had intended the land called Harwood to be in fee, why not include them in the same clause ?
    But it will be said, that the subsequent clauses, when, taken collectively, show the intent of the testator to pass an unfettered estate to his son, without any restriction or limitation whatever. A few moments’ attention to the rules laid down for the construction of wills, must satisfy the Court that such a position cannot be supported.
    Here is an express estate in tail, devised in as strong words as the law can furnish; and the question is, whether this estate so limited can be destroyed by implication, and whether there exists a necessity to destroy it, in order to give this will effect.
    What is the rule laid, down in the books ? That where an estate is devised by express words, the Court will make no construction by implication to destroy such estate, contrary to the words of the will.
    A husband seised in fee, deviséis to his wife for her life, and then to be at her disposal to any of her children who shall be then living. It was adjudged to be an estate for life, and the Court held the disposing power to be a distinct gift, and that the will gave a certain and express estate for life. 1 Salk. 239. 10 Mod. 31. 71. Where the devisee takes a particular estate of inheritanee by express words, such estate shall not be enlarged by implication. 2 Bac. Abr. 68. Where the intention of the testator may be presumed, Judges will pursue it; but where there are express words, it would be to overrule the plain meaning of the testator, against his own words. Id. 2d case. Where there was a devise to A. for 50 years, remainder to the heirs male of A., reP mainder over, the Court said it was not an estate-tail by implication, because the devisor had given him an estáte for years by express words, and the Court can make no construction against express words. 1 Salk. 226. Where a particular estate is expressly devised, the Court will not, by any subsequent clause, collect a contrary intent, inconsistent with the first, by implication. 1 Salk, 236, Where an estate is given by express words, no subsequent general words shall control the preceding devise. 1 Atk. 432. 2 Atk. 113, Other cases cited, 1 P. Wms. 149. 151. 154. 3 Leon. 71. 1 Mod. 189. 2 Lev. 104. 8 Vin. 259. pl, 1. 260. pl. 7. 272. pl. 1, 2 Vern. 450, 1 P. Wms. 54. Salk. 236. Cases temp. Talbot, 9. 14 Vin. 157. pl. 4. Cowp. 379. Gilb. Dec. 74. 81. 110, 111, 112.
    
      A great part of the will must be rejected, if this w to be construed an estate in fee-simple. There exists necessity for such implication, and the rules of law will not warrant it, The construction of a will muse be favourable, and as near the mind and apparent intern, of the testator, as the rules of law will admit of. 2 Bl. 379. 1 Wils. 32. 2 Wils. 88. 323. 2 Burr. 1111. 3 Burr. 1540. 1573.
    Where there appears a particular intent, and a general intent, the general intent must take effect. 2 Wils. 324. General words may, by other words in a will, be restrained ; and it is the same where directly expressed, or plainly collected from the will. 2 Burr. 929. And tho intention is to be collected from the whole of the will. 3 Burr. 1541. 1574. 1622. The Court will not supply a contingency omitted. If words are rejected or supplied, it must be in support of a manifest intent. 3 Burr. 1634.
    A deyise is to be favourably expounded, to pursue, if possible, the intent of the devisor. 3 Burr. 1535. Devise to one for life, and after to her issue, and if she has* no issue, power to dispose thereof at her will and pleasure, the contingency of issue never happened, held, she took a fee. 2 Wils. 6. Co. Litt. 226. 1 Raym. 34, Suppose there had been issue, it would have been a a estate-tail.
    Where there is a devise of all my real estate to A. for and during the term of his natural life, and no longer, and after his decease, to such son as shall be lawfully begotten, and for default of such issue, remainder over ¿ it is an estate in tail by necessary implication, to effectuate the manifest general intent, notwithstanding the express estate devised for life and no longer. 1 Burr. 51. 1 Ld. Raym. 34. 204. 1 Stra. 12. 1 Ld. Raym. 203. Devise to A. for life, without impeachment of waste, and in case he have any issue male, then to such issue male and his heirs for ever ; and if he die without issue male, then to B. and his heirs for ever, is an estate» tail. 1 Burr. 38. Salk. 224. 3 Lev. 431. Devise by father to son and his heirs for ever, and for want of such heirs, remainder over ; it is an estate-tail. Salk. 233, 3 Ld. Raym. 568. To gratify the intention of the devisor, the law will supply the words of his body, 1 Ld. Raym. 186. One rule is, that no technical form is necessary to convey the testator’s meaning, which is to be collected from the will itself: 2 Burr. 770.
    
    The statute of wills requires a testament to be in writing, but requires no technical words. And if, by sound construction, it appears that the intention was to devise a fee, it is immaterial what words are used. 3 Burr. 1625. If an estate for life is given in express terms, yet if there be a proviso, that in case he has heirs lawfully begotten, it creates an estate-tail in the devisee. 1 Burr. 38. 1 Vent. 231. 1 Atk. 432. 2 Brownl. 271. A devise to the son, and provided that if he should die before he comes to the age of 21 years, or without issue of his body, then to the daughter, held to be an estate-tail. Free. 510. 1 Ld. Raym. 505. Cro. Car. 185, Wherever a greater estate than for life is intended to be given, and a fee is not limited, it must be an estate-tail.. Dyer, 330. 2 Vez. 243,
    One principle will be found to run through all the books, and reconciles all the cases. That if it appears upon the whole will taken together, that the intention of the testator was to limit an estate over upon failure of issue generally, then the first devisee has an estate in tail.
    Chase, for the plaintiff.
    After the estate-tail to Robert^ the íetnainder over is to his two nephews. On the fifth clause combined with the first, as he conceives, it will be contended, that the estate-tail created in the first clause is enlarged into a \ eosimple. The seventh clause <s unintelligible ; but it may oe conjectured that the tes* 'tator’s intention was to prevent the wife being barred of her dower in the personal estate. It appears by the will, that Robert, the devisee, was the testator’s only son and heir at law. ,
    _ The words in the fifth clause, if his son Robert should die before he is married, or before he cometh of lawful age to dispose of aforesaid estate lawfully, is the ground upon which it will be argtied, that by implication, a fee-simple is created. But it must be shown, that the fifth clause -necessarily relates to the first devise, and no other. - It appears to have been the intention of 'the testator, upon the happening of the contingencies mentioned in the fifth clause, to give the land devised in fee, and the personal estate, in the same manner as he had given the. land in the first devise.
    Where lands are devised to one generally,: árid to be at his disposal, it is afee in the devisee. But where there is an express devise for life, or in tail, átid after-wards to be at the disposal of the devisee, the éxpress estate only will pass, and cannot be controlled by implication. 1 R. Wms. 154. 1 Mod. 189. 8 Vin. Abr. (Devise,) 235.pl. 9. 259 pl. 1. 260. pl. 7. 272. pl. 1.
    
    
      A necessary implication may control an express devise, by enlarging or diminishing it. But the necessary implication must arise from the words of the will, and denote- the plain intent'of the testator. Gilb. Dev. 74. 81. And to make a necessary implication, the words must be such that they can have no other construction Cowp. 379. Cases temp. Talbot, 9. 14 Vin. 157.pl. 4. It is then incumbent on the defendant’s counsel, to show that the words in the fifth clause can have no other construction than to enlarge the estate to a fee-simple. In addition to' the authorities already cited in 2 Fern. 449, 50. it held, an estate may be énlarged'by éxpfiéss' words, but not by implication. •
    Thus far the case has been considered as if the devise was to a stranger. Butin this'case, the devise was to the heir at law, and must be considered on that ground. If the devisé is construed to pass a fee, it would be nugatory, because he Would, without the devise, take a as heir at law, and then the other devises in remainder would he frustrated. But if the nature or quality of the estate is changed by the will, the devisee shall take under the will, and not as heir at law. Gilb. Dev. T10, 111, 112. The Court will not give a construction Which will render the will nugatory, but such a one-as will give aft operation to every part of it.
    Fenings, for defendant.
    The question is, whether the tract of land called Harxvoód, is devised to the son in tail absolutely, or whether he did not take a'fee in the whole lands devised by his father, on attaining'his age of twenty-one years.
    They contend, it is an estate-tail,-by considering the first part of the will; we say, that on considering -the whole, and comparing the different parts,-it appears to have been the testator’s intent, to vest the absolute estate in fee in the son bn his attaining his age, and -that the limitations over in favour of the nephews, were only to take place on the contingency of his dying before that time.
    Before We consider the particular-clauses, the‘following rules of construction should be premised.
    1. A will must be construed-according -to the intention, where the disposi tion- is not "to-create ran catate contrary to law, as to introduce a ‘ perpetuity of a real estate, or too remote a limitation of ehattelsi 1 Wils. 323, 324. 3 Burr. 1572, 1573.
    2d. The intent of'the'testator must be collected'from the whole- will, and not inferred from a particular clause j for if an estáte in tail or in fee-is; given in one' part of the'will, yet if, by other parts, the intention - appears to give a greater or less estate, that intent shall prevail. 3 Burr. 1622. 2 Raym. 1562. 1563.
    
      3d. An heir at law, who is the son of the testator; shall not be disinherited, without a clear and manifest intention, and,, therefore, if on the whole will it appear doubtful, he shall be preferred.
    These rules may enable us to form a judgment on this ■ question. They contend, that Harwood is a strict entail. We contend, that this and all other land is an entail, with a contingent limitation in fee to the son, on his attaining the age of twenty-one years; and that on his attaining this age, the absolute fee became vested, and the estate-tail was determined.
    To make this an estate-tail absolute, particular words are pitched on as creating this tail, and that without regard to any precedent or subsequent expressions. But we consider the whole will. It is a will ináccurately framed, probably by the testator himself, who does not appear to have understood the legal import of terms; and it will appear that he annexed the same idea to the «words heirs, and heirs of the body, and that he meant to limit all, all his estate in tail, if his son • died before age, and that all should vest in him in fee when he attained that age.
    In the construction of wills, the strict meaning of' technical terms is not the rule of exposition. But the inquiry, to be made is, in what sense did the testator use them ?
    That he meant to entail all his estate, if his son died under age, appears from the beginning of this will, if the beginning only is to be considered: “ I give to my dear and well beloved son Robert Browne, and the heirs of his body lawfully begotten, all my lands, tenements and hereditaments, lying or being in the province of Maryland., or elsewhere.” These are words as full and expressive as possible; and if the matter rested here, and the will went no further, it is a strict entail in the whole.
    
      The testator then proceeds to enumerate the lands, and first mentions Harwood, which he devises over to his brother’s children. Then he mentions Abel’s Lot; and in particularizing this, he mentions the devise to his son Robert, his heirs and assigns, and therefore it is said he gives a fee in this, and an estate-tail in the other, called Harwood,, to his son. It appears evident, that in the mentioning of these lands, the testator did not consider himself as making distinct subsequent bequests, but was only enumerating what he had before given. He could not have forgotten that he had just before given his whole real estate to his son in tail, and that too in the most comprehensive terms» This evinces that he used the word heirs, and understood it in the same light as heirs of the body, which is common with lay gents, who do not always carry the idea of heir to any but descendants.
    To construe this a fee more than the other, is striking out all these words, “ and to the heirs of his body lawfully begotten, all my lands, tenements and hereditaments, lying or being in the province of Maryland, that is to say;” and the will must be read in this manner, “ I give to my son all that tract or parcel of land,” &c.
    Words cannot be struck out of a will, but may be substituted. 3 Atk. 233. Nothing is more common, than for the word heirs to be controlled by other expressions, as in the common case of a devise to one and his heirs; and if he die without heirs of his body, it shall limit the other to an estate-tail. For what reason ■ because it is apparent, from taking the whole will together, that the testator intended to pass an estate-tail, and it is immaterial whether explanatory or controlling words are mentioned before or after, so as the testator ’s meaning can be collected; and-a particular estate devised may be enlarged, to comply with the intent. 1 Burr. 38. 51, 52. 2 Atk. 578. 580. 2 Burr. 1106, 1112. 3 Atk. 624, 625. 2 Wi1s. 322. Fost. 58,
    
      That the testator intended Abel’s■ Lot to be as much an entail as Harwood, is apparent not only from the first expressions, but from subsequent ones, where, he says, “ if he should die, See. without wife, issue or will, that then all and singular the before-mentioned personal and. real estate to my said son Robert bequeathed, to go to my brother James Browne’s, children.” And this shows he did not mean to give any other or greater estate in Abel’s Lot than he did in Ifarwopd, and that both were to go over o,p the same contingency; consequently, that he used the words heirs in the latter, in the same sense as heirs of the body in the forpier. This is further evident, from the devise of the personal estate, which he gives to his son, his heirs and assigns, and which he devises to go over also, if his son .dies without issue or will; for if by tbe word heirs, be intended to give a fee in Abel’s Lot, and an absolute property in the personal estate, he must know that a devise over would be inconsistent with this intent. Further, this Revise of the personal estate, shows he did not know the legal import of the term heirs, for if be did, he must know that personal estate could not descend to -heirs ; he must also know that such a remote limitation .of personal estate would ;be xvoid. From the whole, it plainly appears, that Abel's Lot is as much entailed as Harwood. For considering it -without the first.expressions, and it is no more than thse common case of a devise to a son aiid his heirs, and if •he .dies without issue, then over to his nephews, so .that the testator .could not mean his dying withput heirs generally, but without issue of his body. This case, which so frequently occurs, justifies ¡the former remark, that people often .use the word heirs to mean descendants ¡only. And it is .plain that the testator must have used the word heirs .in this sense. Would any lawyer say the contrary, if the question was put as to the words “ I devise Abel’s Lot to my son and his heirs and assigns, and if he dies without issue, then oyer V’ If he had said the land shall not go over if my son attains the áge of twenty-one, it would have been deal*. It is the same thing, if by construction the meaning may be collected. 2 Burr. 920.
    As it appears dearly that the whole was entailed, it is then to be considered, whether this was an absolute entail to remain at all events, or if it was not to be defeated on some contingency, and what; and it must appear, from considering all parts of the will, that it was only to remain until the son came of age, and at that period the fee vested in him.
    This is plain from the words of the will. The testator throughout manifests the clearest intention, that if his son attained his age, he should have a power of disposition, and that he did not intend any part of the estate should go over to his nephews iñ cáse of this event. Indeed, this intent is not only to be inferred, but it appears to be absolutely expressed.
    It is plain that the personal and real estate were to go over on the same event. There cannot be the least doubt, but that he had a right to dispose of his personal estáte on attaining his age ; but then this inconsistency follows, if the disposition of one is good and not of the other, thbn one would go over and not the other, contrary to the express declaration of the testator, 1 Wils. 165, 166,
    Again. “ If my son Robert should marry before he .someth of age, and should have no issue during his nonage, and should die and depart the world before he is of ■ripe years to dispose of his land before bequeathed, this not to hinder his wife from the enjoyment of the personal estate, nor from her lawful dowry in the before-mentioned lands, during her natural life.” Here is an express declaration, that the testator meant to give him the ab- • solute disposition, on his attaining his age, and it is twice repeated,
    
      The testator had two objects ip view ; to make a pro, vision for any wife his son should marry, if he died un~ der age, and to give him' the estate absolutely, if he did attain his age. He makes no provision for the wife, but eventually on his son’s dying under age. If of age, he leaves it to himself, as he had given him a power of disposition. • That is, my son will have my estate to do what he pleases with it, on his attaining the age of twenty-one. ■. He may then provide for his wife as he pleases, and in that case I do not intermeddle; but as he may die before, I will make a provision for her on that event, thinking she would have no dower, in an estate-tail. Again, in enumerating the particular circumstances, he mentions his dying without will, an expression denoting his intent of giving him a power to dispose. If the estate was entailed he could not devise.
    The meaning, of the will is plainly this : If my son dies unmarried, arid under age, then the estate to go over ; if he dies married, and without issue, then to go over subject tq the provision I have made for the wife ; but if he attains his age, or has issue, then he is to have the fee. 2 Burr. 920. 923. 1 Burr. 38, 51, 52. 3 Burr. 1618. 1622, 1623. 1625, 2 Burr. 767. But if they do not regard the several expressions in the will to denote the testator’s meaning, so as to explain on what contingency he meant the limitation over, then by the last expression in the will there is a fee devised in all, on account of the words, “ I nominate and appoint my aforesaid son my whole and sole heir" That this will pass a fee, see Hob. 2. 1 Eq. Abr. 176.pl. 5.
    
    
      Objection. The power of disposition relates to AbePs Lot and not to Harwood; and the words, “ except what, is before excepted,” excludes that.
    
      
      Answer. This exception has nothing to do with the limitations of the estate, but is only applied as to removing or changing the property.
    The son was under age at the time this will was made, and unless the testator had given him a power to take his estate in possession. during his nonage, a guardian must have been appointed; he therefore threw iu words, at the time of giving him a right to take possession, meaning that it should not be construed to amount to empower him to dispose of it, or charge it during his nonage. This is the plain and obvious meaning of the clause : If the exception applies to the tract called 'Harwood, it Will make that an immediate estate-tail in the nephews, and the son is to have nothing to do with it. The testator directs that his son, immediately after his deceasej the aforesaid given lands and premises into his hands, possession and management to take, and without any removal or change of property to be made, the same to have, hold, possess and énjoy, árid according to His direction the same to husband, &c. (except what is before excepted.) If it applies to Harwood, then he is not to have possession of that tract. But that lie did not intend to except the fee in Harzvood from vesting, when the scfe attained his age, as well as in the other tract, is evident from the provision made for the wife.
    It has been observed that the father lias made no provision for any wife his son should marry, but on the event of his dying under age ; but if he attains his age, as he would then have it in his power to make what provision he pleased, she is left at large, and from thence an inference may be drawn, that he meant to give a fee in the whole. So here, with respect to the exception, if the son attains his age, and this is construed an absolute limitation in tail, the wife, according to the testator’s idea, could not have her dower in it, for it is plain, he thought she was not entitled to dower if his son died under age, and in that event he gives the estate to his nephews ; so that if the wife is to have her dower in the whole, on £[ie gon’s dying under ag'e, and the son is not to have a fee jn t]ae ivhole on attaining his age, then the words are to be taken in a general sense with respect to the wife, and a limited sense with respect to the son, on the event of his attaining his age.
    The other part of their argument fails, in its principle. It is contended that Harwood,is entailed, but that Abel’s Lot'is given in fee; therefore, the power of disposing is to be confined to Abel’s Lot, and does not extend to Afar-. zvoad.
    
    From their statement of the question, then, it appears, that if the whole is entailed, the ground of their distinction fails of course; for if the reason why he did not intend to give a. fee to his son at the age of twenty-one. in Harwood, is because it was entailed, then the same reason will hold with respect to ¿Abel’s Lot, for that is also entailed. The consequence of this is, that all the expressions in the will respecting the son’s power of dispo-. sing are to be struck out, and are of no consequence. By our construction they all have force, and produce a reasonable effect, and such as a testator may be supposed to have in view. He considered that his son might die under age, and have issue, and in such case he could not dispose of his ■ estate, though the issue should die ; he therefore does it for him,; but if he lived to have a disposing power, then he might do with it as he pleased, and divide it amongst his children.
    If the testator only meant to give this power with respect to. Abel’s Lot, he has used the most improper terms imaginable. He says, “ I give all and singular the before-mentioned personal and real estate to my sáid son Robert bequeathed, over,” &c. This is not the language a man would adopt, who only intended to give his son an absolute property in part. Is not Harwood bequeathed to him as well as the other ? But to justify their construcTon, it must be supposed, that he derived no interest under the -will in this tract; this is contradicting the will. The words giving a power of disposing, are nugatory, if applied only to Abel’s I,at; for if that is a fee, he might of course dispose of it.
    On the whole, it appears clear that the testator had two things in view, to point out in what manner his estate should go if his son died under age, if he attained his age to have it to himself; otherwise we strike out the words in the beginning and throughout.
    
      Stone, for defendant.
    The son was the first object of the testator’s bounty, and he intended to provide for his nephews in case • Robert died under age and without issue. In the first part of the will a fee-tail is given to the son, which was to be enlarged into a fee, in case Robert attained the age of twenty-one.
    The words, “ all my, estate real and personal,” are very comprehensive and full, and cannot he confined to Abel’s Lot, but must extend and take in Harwood. The words, “ except what is before excepted,” cannot refer to Hartoood, but refers to his debts and funeral expenses. Unless such a construction prevails,, the subsequent clauses are useless and signify nothing.
    The case of Popham v. Bamfield, cited in 1 Vez- 26. is said to be wrong stated in Salkeld. For in that case it was not necessary to construe it an estate-tail, because the intention of the testator could be gratified without such construction.
    The case of Edgar v. Edgar, Cowp. 379. shows that an estate created by express words, may be restrained bv the intention of the testator..
    A necessary implication is something not expressed, inferred from something expressed, which would be nonsense without the implication. 5 Brown, 278. The rule laid down in 2 Atk. 113. that where there is a devise in express words subsequent general words shall not ' extend it further than the natural meaning of the preceding ones will do, is not applicable to the case under discussion.
    No tenant can dispose of lands by will, except a tenant in fee. From whence it is clearly to be inferred, that the testator intended that Robert should take a fee, as soon as he was capable of disposing of it by will. And his providing for the wife during the minority of Robert, shows he intended the estate to be in fee after Robert attained hi%age; for he must have supposed the wife would not be entitled to dower, if Robert had died during the continuance of the fee-tail.
    The rule in 2 Bac. Abr. 68. that where the devisee takes a particular estate of inheritance by express words in the will, such estate shall not be enlarged by implication, does riot prevail now, and is contrary to common sense. The case put is but a possible implication and does’not confirm his rule. In the construction of wills there is no rule to distinguish the case of a devise of an inheritance, from a devise for life, as to the creating of an estate by implication. Judges were formerly more strict in preventing estates going over from heirs at lavt by implication. 2 Wils, 6.
    Martin, (Attorney-General,)
    in reply, was stoptby the Court.
   The Court determined that Robert Browne took an estate-tail under the devise mentioned in the will of Abel Browne, his grandfather, as stated in the special verdict, and judgment was entered on the special verdict for the plaintiff^ for possession and costs.

(Hanson, J. and Goldsborough, J.)

The defendant appealed to the Court of Appeals, and ¡che appeal was discontinued in that Court, at May term, 1787, by the appellant’s counsel. 
      
      
         Harrison, Cli. J. did not sit at the argument
     