
    [*] DEN, TERRIL against SAYRE.
    A deviso in fee must show testator’s intention that it be in fee. Death of plaintiff's lessor, after notice of trial, no bar to the trial.
    This was an action of ejectment, for lands in Essex county, bought by Sarah Terril, who claimed title under the will of her father, old Daniel Sayre. This will was dated 1763; soon after which, in the same year, the testator died. In this will, after the testator had made provision for his wife, and given a farm to his son Daniel, his heirs and assigns, contains the following clause, on which the controversy arose. “ Item, I give and bequeath to my two loving sons, John and Abraham Sayre, all the remaining part of my homestead farm, to be equally divided between them, part and part, with the condition that they shall provide for, and maintain my daughter Phoebe, comfortably during her natural life, and as neither of my said sons is married, if they, or either of them, should so continue till death, then his or their part of my farm so gave, shall be equally divided amongst all my surviving children; but if either, or both of my said sons should marry and have a child, that then,- in that case, his or their pai’t shall be free and clear to him or them, and their heirs and assigns. The will then provides small legacies to the testator’s daughters, except Phoebe; and also to his granddaughters-; and orders a small farm lying in the mountain, to be sold to incx’ease his personal estate; and then orders the remaining part of his moveable estate to be equally divided among all his daughters. In the introductory clause of the will, the testator’, in language denoting fervexxt piety, surx’endered and committed his soul to God; axxd concluded this introductory clause as follows: “And as for such worldly estate wherewith it has pleased God of his goodness, to bless me in this life, I give, &c.”
    [*] This cause caxne on to be tried at the Essex Cix-cuit, before Pennington, J., on the 17th September, 1807. It appeared in evidence, that the lessor of the plaintiff had died about sixteen days before the trial, on which the counsel for the defendant objected to any further proceeding in the cause, on the ground of the death of the lessor of the plaintiff; this objection was overruled by the judge.
    A verdict was then taken by consent, for the plaintiff, subject to the opinion of the coux-t at bar, on the following facts, in addition to the will of Daniel Sayre) to wit: Daxxiel
    Sayre, the testator-, died the same year that the will bears date; all the children of Daniel Sayre, the testator, named in the will, were living at the time of his death, viz.: Daniel, John, Abraham, Phoebe, Hannah, Elizabeth, Mary, Abigail and Sarah, the lessor of the plaintiff.
    Johxx was married and had a child, which died in. his lifetime. Abraham died the 8th February, 1804, without having been married, (his share being the subject of controversy.) Sarah, the lessor of the plaintiff, and Abigail, were the only two childrexx of the testator living at the tiixxe of the death of Abraham; Daniel was the eldest son of the testator. The plaintiff disclaimed going for any part of the premises, except what was devised to Abraham. The plaintiff was in possession of the premises devised to John and Abraham. John and Abraham possessed the premises jointly, until John’s death. After John’s death, those deriving title under him, divided with Abraham.
    It was agreed by the parties, that the foregoing facts furnished the following points:
    1st. Whether, under the circumstances of the case, the plaintiff is legally entitled to a verdict and judgment, and execution, in the usual manner and form.
    2d. What estate the lessor of the plaintiff is [448] entitled to, under the will of Daniel Sayre.
    3d. AVhat portion of interest, if any, the lessor of the plaintiff is legally entitled to, under the said will and facts in the cause.
    [*] It was further agreed, in case the court at bar should be of opinion that the plaintiff was not legally entitled to a verdict and judgment in the cause, that then a judgment of nonsuit be entered.
    This cause was very learnedly argued in September Term last by Chebwood, Griffith and A. Ogden, for the plaintiff, and I. H. Williamson and II. Stookton for the defendant; and at this term the following opinions were given :
    
      
       See 1 Hening v. Munford, 530; (S. P. S Johns. 496; 2 Bibb. 148.— Ed.)
    
   Pennington, J.

The principal question brought up by this case, for the consideration of the court, is, what estate or interest the lessor of the plaintiff, Sarah Terril, in the events that have happened, took under the will of her father, Daniel Sayre, in the premises in question.

It is an unquestionable, known, and acknowledged rule in the construction of wills, that the intent of the testator, as far as that intent can be supported by the rules of law, must govern. That this intent must be taken from the words of the will, connected with the circumstances of the testator’s family and estate.

In the view I have of the subject of controversy in this cause, it does not appear material to me, what estate John and Abraham took in that part of the farm devised to them; whether they took a contingent remainder, or a determinable fee, as urged by one of the counsel for the plaintiff, the same consequence follows. I incline to think, however, that the testator intended to give John and Abraham an estate for life, with a contingent remainder in fee. In the preceding devise to Daniel, he makes use of proper words to pass a fee — heirs and assigns. He then gives to John and Abraham, a certain portion of his homestead farm; omitting those words, and uses no other denoting an intention to create a fee; he annexes to his devise, a condition that they maintain their sister Phoebe, who it is probable was somehow or other, unfortunate; or perhaps unmarried, and of course, unprovided for; this, it is contended, was charging the land beyond the [*] annual profits, and therefore, in a will ought to be construed as carrying a fee. I think, however, that it is fairly to be presumed, that his expectation was, that this support of a single woman was to come out of the annual produce of the farm. The testator then takes notice, that his sons were neither of them married, provides, that in case [449] they should continue so until their death, the part of his farm devised to them, should be equally divided ámong his surviving children. He then goes on and declares, that in case either John or Abraham should many and have a child, that his .or their part, should be free and clear to him, or them, or their heirs and assigns. If the devise over to the surviving children, cannot strictly be said to be a contingent remainder, yet it is to be supported as an executory devise; which ever way you take it, it is good. The first important question then is, what estate the devisees over, took in the land devised to them.- The rule of law on the question is, that there must either be words of limitation added to the devise, or from the whole of the will taken together, and applied to the subject matter of the devise, it must appear that the intention of the testator was to give a fee, or else the devisee takes only an estate for life; there are no words of limitation added to this devise over. It is, however, contended by the counsel for the plaintiff, that there are words in the will, that show the testator’s intent, that the devisees should take a fee. 1st. As for such worldly estate wherewith it hath pleased God to bless me,” shows that the testator meant to dispose of all his estate, and not to die intestate. It appears to me that these words do not of themselves import such an intent, but were introduced to make a distinction between his temporal and his eternal concerns, of which he had before made mention; nor can I find any case where these words alone, unconnected with any subsequent matter, were held to pass a fee. 2d. That the word farm, is equivalent to the word estate or interest in the land, and was so considered by the [*] testator. The w'ords in the devise to John and Abraham are, “ all the remaining part of my homestead farm,” and in the devise over, are “ their fart of my farm, so gave.” It is true, that the words, I give all my estate, have been const rued to pass a fee; and even where words of locality are added, as all my estate in A., it has been held that all the testator’s interest in such particular lands will pass, though no words of limitation are added, !3 P. Williams, 5%$,; because the law says, that the word estate comprehends not only the land, which a man has, but also the interest he has in it. The word farm carries no such meaning. 3d. The concluding clause is brought in to help out the testator’s intention, wherein he gives away all the remaining part of his movable estate; this, it is said, shows that the testator thought that he was giving away all his estate. It does not appear to me to show' anything more than that the testator thought that he was disposing of all his personal estate. But then [450] it is said, that the concluding words, taken in connection with' the introductory words, before taken notice of, show the intent of the testator to pass a fee, and for this the court is referred to the case of Willis v. Jackson, Cowp. 299. The concluding clause in this case, was, “I also give and bequeath unto my dearly beloved mother, all the remainder and residue of all the effects both real and personal which I shall die possessed of.” The court referred to the introductory words, all my worldly substance, to explain the words all his real effects, in the subsequent residuary devise; and from the whole will taken together, held that the residuary devise carried a fee. The cases, to my mind, bear no resemblance; the question in the case under consideration, is not whether the residuary bequest of all the remainder of the movable property to the daughters, carried a fee; but whether an intermediate devise over, of a certain portion of a farm carried a fee; besides, there is a great difference between real effects, and movable estate. 4th. Another ground for construing this devise over, [*] a fee, taken by the counsel for the plaintiff, is, that a fee was devised to John and Abraham; and that the same estate was given over; therefore that the devise over must carry along with it, all the qualities of the first estate. If I am right in the construction which I have given to the devise to John and Abraham, the first answer which I shall give to this part of the argument, will be conclusive, which is, that the clause of the will devising a fee, contingent or deminable, which ever it may be denominated, was subsequent to the devising clause under consideration, and of course could not have been referred to in it; but not relying alone on this construction, I admit that the words so gave, are relative words; the words are, “ his or their part of my farm so gave.” To my mind, these words refer to the land, that is, a description of a particular part of the land which he intended to devise, and not the quantity of interest or estate which he intended to create by the devising clause. Besides, the estate or interest devised to John and Abraham was clearly depending on the contingency of their marrying, and having a child; in one event they had a fee, and in the other, only an estate for life. It cannot easily be conceived that the testator intended his daughters, the devisees over, should take an estate .depending on the same contingency. It is observable, that the testator, when he meant to create a fee, made use of apt and appropriate words, and that he appears to have understood the difference between an absolute estate, and a qualified or lesser one. In the devise to his wife, of a portion of the real estate, he expressly gave it to her during her life. I cannot, on the whole, discover from the words of the will, or any circumstance [451] connected with the family or estate of the testator, an intention in the testator to give a fee. There must be words, which by their necessary implication, import in the testator an intention to devise a fee; otherwise, nothing but an estate for life passes. If the intention of the testator is doubtful, [*] the rule of law must take place, Coiop. 355. Although great allowances are made in construing wills, to get at the intention of the testator, formal words are not required, as in other instruments of conveyance, yet we must have some solid ground to tread on. If we suffer our imaginations to lead us into wild fields of fancy, property will have no permanent resting place, but floating in the capricious element of conjecture, it will be this man’s to-day, and another’s to-morrow. That the rule of law that gives rise to this controversy is inconvenient, and often causes injustice, is not denied, and that the Legislature wisely changed it, as it respects all devises subsequent to the act; but we are construing a will made in 1763, and in doing which, must be governed by the existing laws at that time.

The next subject of inquiry is, which of the testator’s children take, under the devise over; he had nine children living at the time of making his will, and also at his death, but only two surviving at the time of the death of Abraham, to wit: the lessor of the plaintiff and Abigail Brookfield. There is very little difficulty in my mind on this question. I think it must go to the children living at the time' of the contingency happening, that is, the death of Abraham. The words, surviving children, are best answered by this construction. Lord Hardwicke, in 1 Ves. Ill),, gives the rule in such cases, and the reason of it, and fixes on the time that the contingencies happened. Lord Mansfield, in Cowp. 312, follows the opinion of Lord Hardwicke. His language is, “ The great point in all cases of this kind is, the time when the legacy is to vest; for that is the period that the testator looks forward to, when he directs his property to pass from one channel to another.” And in page 31^l, he draws a distinction between cases of provision for children in marriage settlements, and when a devise is limited to children by way of remainder, or upon a contingency which is uncertain when it will take place, if it ever [*] happens at all, which last is precisely the case under consideration.

At the circuit, it appeared that the lessor of the plaintiff had died a few days before, on which it Avas moved on the part of the defendant, to stay all further proceedings. I then thought, that the death of the lessor did not abate the suit, and overruled the motion. [452] I have not changed my opinion since. It is now contended that the judgment cannot be entered on the ground that the interest of the lessor has expired, but on the authority of Turner v. Gray, 2 Stra. 1056; I am of opinion that judgment be entered to enable plaintiff to recover damages and costs; but that the writ of possession be stayed. That this judgment be entered for a moiety of the land devised to Abraham Sayre, in the will of his father, Daniel Sayre.

Rossell, J.

A verdict has been taken by consent, which on a case stated, furnishes the following points to be submitted to the court.

1st. Whether, under the circumstances of the case, the plaintiff is entitled to a verdict, judgment, and execution, in the usual form.

2d. What estate the lessor of the plaintiff is entitled to under the will of Daniel Sayre, deceased.

3d. What portion of interest, if any, the lessor of the plaintiff is entitled to, under the said will and facts in the case.

As to the first point, I am of opinion, that the plaintiff, under the authority in 2 Strange, 10o6, although he cannot obtain possession, may proceed for damages and costs.

After a careful examination of the very numerous authorities cited by the counsel in this case, 1 consider the following principles as settled. The intention of the testator, collected from the whole will, and clearly understood, will govern in the distribution of the estate. That a gift of lands without expressing what estate, vests an estate for life only. [*] That the heir, by operation of law, being entitled to an estate certain, shall not be divested thereof, but by words manifesting the intention of the testator, to bestow it elsewhere.

That the introductory clause of a will, expressing in general terms, the intention of the testator to dispose of all his estate, shall not divest the heir of his inheritance, without some corresponding words in the particular devise; unless such devise is charged with a debt, which might possibly take money out of the pocket of the devisee; in such case, a fee is created without express words.

It remains then, to apply these principles to the case before us. The introductory clause to the will of Daniel Sayre, under whom the lessor of the plaintiff claims, is in these words: — “As for such worldly estate wherewith it hath pleased God' of his goodness to bless me in this life, I give, devise, and bequeath as followeth.” This is said by the [453] counsel for the plaintiff to plainly manifest the intention of the testator, to dispose of the whole of his estate, real and personal, and taken in connection with the clause, devising to his sons, John and Abraham, a contingent fee in the lands given them, vests in the surviving children, on the authority of the devise over, on failure of such contingency, a fee simple. Lord Chief Justice De Gray, in the case of Frogmorton v. Wright, in 3 Wilson, 418, decided so late as .the year 1773, says: “ there is no case can be found, when the testator makes use of them, or the like words, “as touching the disposition of all my temporal estate, I give and dispose thereof as followeth, and immediately after devises his lands to divers persons, that Avas ever determined to carry a fee.” “ It is probable, (he continues), the intention of the testator was to give his nephew William a fee; but it is a clear rule, that there must be express words, or a necessary implication, to disinherit the heir at law.” The introductory clause alone then, not creating a fee, we must search the devising clause, [*] and in that I can find no Avords necessarily implying the testator’s intention to convey one; indeed I think the contrary may reasonably be inferred. He seemed to be acquainted with the technical terms by Avhich fees Avere usually created; for in his devise of lands to Daniel, he says: “ I give and bequeath to my loving son, Daniel, and to his heirs and assigns, &c.” And again, in the devise of the remainder, to John and Abraham, “If either of my said sons shall marry, and have a child, then, and in that casé, his or their part shall be free or clear 'to them, their heirs or assigns.” Clearly showing, by thus repeating the Avords heirs and assigns, that he was acquainted with their import; yet on failure of lawful issue of John and Abraham, when immediately after devising over to his surviving children, the same lands, he omits these words, and it would seem to give an estate for life only, to his surviving children.

But it is again urged by the counsel for the plaintiff, “that as John and Abraham were charged with the maintenance of their sister Phoebe, this charge created a fee simple in the lands devised to them.” And that the words, “ so gave,” in the devise over, to the surviving children, apply to the quantity of the estate possessed by John and Abraham; and that being a fee, it must necessarily go, on the failure of the contingency to the survivors.

This does not appear to be correct; it would contradict the plain intention of the testator, who in giving to John and Abraham an estate for life only, in words that cannot be mistaken, does it on the express condition, that they shall maintain their sister Phcebe. This condition then, or charge, by which they held an estate [454] for life, could not of itself, give them a fee in the lands; but if this claim to a fee simple in consequence of the charge on the estate, did not contradict the manifest intention of the testator, 1 question if it is such a charge as would entitle them to their claims. It should have been a gross sum, or at least such a one as might [*] possibly make them losers by taking an estate for life. But where they could not possibly lose, unless (which is not pretended) the maintenance of Plicebe would amount to a greater sum than the yearly value of the lands, there appears no pretense for saying they held a fee simple on accepting the bequest; and for these reasons, I am of opinion, that the surviving children held an estate for life only.

Kirkpatrick, C. J.

The law is clear, that to carry a fee, there must be something in the will evidencing an intention in the testator to devise a fee. After the most careful examination of this will, I cannot perceive any such intent. I am, therefore, satisfied with the opinions delivered.

Judgment for the plaintiff, with stay of execution against the land.

Cited in Den, Holcomb v. Lake, 4 Zab. 686.  