
    Minnis, Executor of Aylett and Others v. Philip Aylett.
    October Term, 1794.
    Wills — Devise of All of Testator’s Lands — Effect Where fie Has Leasehold as Well as Freehold. — Devise to A. and his heirs of “all the plantation on which he (the testator), then lived, and of all his lands in the County of King William. The testator was at the time seised in fee of a tract of land, in King William, on part of which he lived, the residue being under leases, and of a leasehold estate in another tract of land, in the same County, held adversely by others, but which was recovered after his death by his executors, only the freehold lands passed under the devise.
    This was an appeal from a decree of the High Court of Chancery, and the question depended upon a clause in the will of William Aylett the father of the appellee, wherein he devised to the appellee and his heirs, “the plantation on which he then lived, and all his lands in the county of King William, also his land in Drummond’s neck in James City county.’’ The testator at the time of making his will, and at his decease, was seised of an estate of inheritance, in a tract of land in the county of King William, upon a part of which he lived, the residue being in the possession of others, under leases. He was also entitled to a leasehold interest for the term of 999 years in another tract of land lying in the same county, but of this last he was not possessed. He commenced a suit for the recovery of it, which abated by his death. His executors revived the suit after his death, and recovered the land. The appel-lee filed his bill in the High Court of Chancery, against the executors and residuary devisees of the testator, claiming the leasehold as well as the freehold lands. The only question was, whether the leasehold land passed under the above clause to the appellee, or was comprehended in the residuary clause in the will. The Chancellor decreed in favor of the appellee, upon his giving *bond with condition to pay the proportion of the debts due from the testator, for which this land is liable; and also, an account of the rents and profits thereof, received by the executors. Erom this decree the executors appealed.
    Warden for the appellants.
    The decisions, from the case of Rose v. Bartlett, Cro. Car. 292, down to the present day, have been uniform upon the subject; and they all establish this difference, that if the testator be entitled to both freehold and leasehold lands, and devise all his lands, the former only will pass ; but if he have leasehold lands only; then they will pass; for in the first case, the freeholds lands will satisfy the words of the will. He cited Swinb. on wills 139, 318, devise of all his lands and tenements — only the freehold lands pass. 1 P. Wms. 286 — 3 P. Wms. 26— 2 Atlr. 450 — 1 Vern. 271.
    
      Marshall for the appellee.
    If the weight of authorities were out of the way, there could be no question,, in cases of this sort, about the intention, which certainly is, to pass all the testator’s land, whether freehold or leasehold. The cases cited, do not apply. They have all of them been decided upon some expression in the will, shewing an intention to pass only the freehold lands. In those cases, the testator either gives all his lands and tenements, or all his freehold lands. As for instance, in the quotation from Swinburne, the author explains those cases, and shews, that by the word tenement, the testator is considered as meaning frank tenement or freehold, and thereby limiting the general meaning of the word lands. In this case the testator had but one tract of land in King William, except the leasehold, and the devise being of all his lands, in the plural, it cannot be satisfied unless the leasehold land shall be considered as passing.
    Warden in reply.
    The case of Rose and Bartlett is a devise of all his lands; and the word tenements is not mentioned. It is true, that the court, in giving the opinion, put the case of a devise of all a man’s lands and tenements, and this is conclusive to shew, that the insertion of that word makes no difference, since they would not have decided the case under consideration, and the case stated in argument, in the same manner, if there were any thing in the word tenement. But this case, upon intention, is stronger than any of those cited, because here, the testator not being in possession of the leasehold land, it is not presumable that he meant to devise it.
    
      
      The principal case is reported in wythe 319, also cited in Wilkins v. Taylor, Wythe 347, 350, 353, 354.
      Rules of Property — Decisions Establishing — Effect.— In Claiborne v. Henderson, 3 Hen. & M. 376, it is said: “The sanction of this court in relation to 'uniform decisions which establish rules of property’ has been given in many cases; of which those of Minnis, Executor of Aylett v. Aylett (1 Wash. 302), and Boswell v. Jones (1 wash. 332), and which are strong, are at present recollected.”
    
   *The PRESIDENT

delivered the opinion of the Court.

In the case of Shermer and Shermer’s executors, the court declared their opinion to be, that where the intention of a testator is apparent, cases to over-rule that intention must be strong, uniform, and apply directly to the case before the court, or else they would be disregarded. If in this case, the intention appeared clear, that the leasehold land should pass, the court would give a decision according to this principle, in support of the intention; but we can discover no such intention. The rule is laid down in Rose and* Bartlett, bv all the judges, that where a testator having both freehold and leasehold lands in a particular place, devises all his lands in that place, only the freehold lands shall pass. Subsequent Judges and Chancellors have stated the rule, and uniformly decided accordingly, altho’ in one case, the Chancellor acknowledged, that the testator intended the leasehold land should pass.

Thus settled, it has become a rule of property, which the court cannot depart from, without disturbing perhaps many titles, enjoyed under this long established principle. In this will, there are no words or circumstances, to shew an intention, which do not appear in the case of Rose and Bartlett.

The court are therefore of opinion, that the leasehold land did not pass under the clause in question to the appellee, but is comprehended within the residuarj' clause to the wife and children of the testator, and they reverse the decree, and remit the cause for further proceedings.  