
    Bowly's Lessee vs Lammot.
    Appeal from Baltimore county court. Ejectment, for a. tract of land called Chatsyiorth, lying ip. Baltimore county. Defence, was taken on warrant, and plots wore made. At the trial it was admitted, by the parti.es that William Lux, deceased, was seized ip ' fee simple, on the 1st of January 1773, of the tract ot land callee] Chatsworlh, granted to him by patent, containing, 95,0. acres; and being so seized, made his will on the 5th of May 1773, whereby he devised, among other things as follows: “Am.I give and bequeath to iny dear yife Jlgnes Lux, for and during her natural life., my tract of land and plantation called 
      Chatsworth, with the dwelling-house and all the buildings* and improvements thereon, (save and except the Hope Walk.) '■’•.Item. I give, and bequeath to my dear son George. Lux, his heirs and assigns, my tract of land called Chats-worth, lying in Baltimore county, containing 950 acres; but in case, my said son should die before he attains of legal age, ami without issue, then I ieaqe and bequeath the said tract of land called Chatsworth to my dear wife dignes Lux, or her. assigns, to be at her own will and disposal as it originally was, save and except five acres, to be laid of} in a long square on the south two degrees west one hundred and tJrkJy-ons perch line, being the fifth line from the beginnings and that said five acres, together with the Hope Walk, and all the buildings and improvements ther.eon, J give and bequeath to my. dear nephew and partner, Daniel Bowly, his heirs and assigns; and it is further my will and intention, that if my said dear wife should die before my dear son George, so that my estate be vested in him, and he should afterwards die before he attains legal age, qnd’ without lawful issue, then and ip such case, I leave and bequeath all that part of my said tract of land called Chatsworth, that lies to the northward of a porth west line drawn from the, beginning treesj of the tract of land called Ilnp Hazard, to dignes Wql/eer, qnd the heirs of her body lawfully begotfep, and ip default of such issue to Charles Walker, his heirs and assigns, for ever; and all the rest and residue of the said tract c.al,led ChxtsivorUi, 1 give and bequeath to my said nephew Daniel Bowly, and his heirs and assigns, remainder over to my dear brother Darby Lux, his heirs and assigns, for ever, subjecting the, same nevertheless in either case to the payment of ¿£500 sterling to dignes. .Walker, and he.r, heirs.” William Lux. died oq the 10th of May 1778, leaving George Lux his. only son, aqd heir, at law, then of the age of twenty-one years, dignes, the wife of the testator, survived him several years, Daniel Bowly was the nephew of William Lux, and at the time of the date of the said will wqs ip partnership with him in carrying on the manufactory of rope, in a Rope-Walk situated on a part of Chatsworth, but Bowly was not at that time in any manner interested in the land called Chatsworth, nor was there any lease of due- Rope-Walk, W any articles or terms of partnership. George Lux lived many years after his arrival at the age of twenty-one years; and after the death of his mother, and while he was in the actual seisin apd possession of the land, did, on the 17th of April 1787, by deed,-convey in trust, &c, to William Russell, “all that part of Chatswortk which hath not heretofore been granted and conveyed, and whereof the fee simple remained at and before that time in the said Lux,, a part of which is now under lease to his under tenants,” &c. Russell, after the execution of the said deed, entered upon and became seized of such part of Chatswortk, as could legally pass in virtue ¿f the said deed, to and for the purposes of- the deed; am} afterwards by deed, dated the 27th of April 1789, conveyed to Harry Horsey Gough parts of Chatswortk, described by courses and distances, and containing sixteen and a quarter acres. Gough, on the 9th. of May 1801, conveyed to Lammot, (the defendant,) the parts of Chats%uorth conveyed to Govghby Russell. The five acres of land, mentioned and described in the will of William, Lux, are included within the lines of Chatswortk, and are part thereof; and they are truly located by the plaintiff on th© plots, in ffie cause, and are the same five acres of land which the plaintiff claims as his pretensions; but the Rope-Walk did not occupy or cover more than two or three acres of Chalsivor-lh. The two parcels of land, mention-, ed. apd described in the deeds from Lux to Russell, and from Russell'ta Gough,- and from Gough to the defendant, are parts of Chatswortk, and include the land for which this, ejectment is brought, and are truly located on the plots, and for which the defendant hath tafeen defence, Harby Lux, named in the will, was the testator’s eldest brother, and survived him, and is since dead, leaving issue at this time in full life and being. Upon these facts the defendant prayed the opinion of the court, and their direction to the jury, that the lessor of the plaintiff acquired pa estate in the five acres of land in the said will mentioned, competent to support this suit. Of which opinion the court, (Nicholson, Ch. J. and Hollingsworth, A. J.) were, and did so direct the jury. The plaintiff'excepted; and the .verdict and judgment being against him, he appealed to this court.
    
      WL,by his will* devised as follows: ®VX give and bequeath to inydear wife A L, for and during her natural life, my tract of land and plantation called C, (save and except the rope walkp’ “Item, 1 give and bequeath to my dear son Gé L, hi* heirs and assigns, my tract of land called C; but in case my said son should 4 die before he attains of legal age, and without issue, then I leave and bequeath the said tract of land called C, to my dear wife A L, or her assigns, to be at her own will and disposal, ns it originally was save and except five acres to be laid off&c. “and that said five acres* together' with ’thé rope walk* X give and bequeath to vty tteti^.-neph'evf'D £, his heirs and assigns And it is further my intention, that if my dear wife should the "before my dear son G-, so that my estate be vested in him, and he should afterwards die before he attains :legal age, and without lawful issue, then,” &c -rBéld) that the devise . of the rope walk to D B was an immediate, and not a contingent devise. ?!
    The intention of the testator is to 'be collected from the words of the will, and the whole of the-will xs to be considered and compared Such construction must be made as will gratitV every part of the will, if it can be done consistent with the general intent.
    The rope-walk, and the five acre», mu,st be considered as the same.
    
      The cause was argued before Chase, Ch. J. Buchanan*, Gantt, and Eakxe., J.
    
      Martin, Ridgely and Winder, for the Appellant,
    cited Shep. T. 84, 14 Vin. Ab. tit. Grants, 58, 62, 63. Wyat, vs. Aland, 1 Salk. 324. Bac. Ab. tit. Wills, (F) 522, Smith vs. Packhurst, 3 Atk. 136; and Coke Litt. 5, 56.
    
      Key and Purviance, for the Appellee,
    cited Chew's Lessee vs. Weems, 2 Harr. & Johns. 173, (note). Brogden vs. Walker's Ex'r. &c. Ibid 285; and Belt's Lessee vs. Belt, et al. 4 Harr. & M‘Hen. 80.
   Chase, Ch. j.

delivered the opinion of the court. The following principles prevail in the construction of wills. The intention of the testator is to he collected from the words of the will, and the whole of the will is to be con* sidered and compared together. Such construction mast be made as will gratify every part of the will, if it can be done consistent with the general intent.

The question is, whether the testator intended an immediate devise of the Rope- Walk to his nephew Daniel Bowly, or intended it to be a contingent executory devise in Bowly, depending on the executory devise to Ann Lux, vesting in her, on the death of George Lux under age, and without issue?

The Rope-Walk, and the five acres, must be considered as the same. The five acres, as described in the will, is a particular and precise designation, by metes and bounds, of the land comprehended under the general terms, The llopeWalL.

It is plain the testator did not intend to die intestate of any part of his estate, and particularly of his land called Chatsioorlh. it is also plain he intended the Rope-Walk i'or Bowly. If he intended a contingent devise to Bowly, there was no necessity for excepting the Rope- Walk in the devise to his wife for life, because Bowly was not to have it until Chalsworth vested absolutely in her on the death of George Lux under age, and without issue, and she might have enjoyed the whole of Chatsworth without interfering with such intention. But if he intended an immediate devise to Bowly, it was necessary to insert in the devise to his wife, for life, the exception of the Rope-Walk,

Is there any thing in this will to prevent it being expounded in such manner-as will effectuate that Intention?

The ninth clause is that pact of the will on which the question^prinoipally depends. If in reading this clause wé stop at the words, iibut incase,” the consequence "Would lie, that a fee simple would vest in George Lux absolutely. The testator did not intend to give a fee- simple to his son, but to modify it in such manner as to create an executory devise to his wife, on the happening of two contingencies; and to effect that intention, it is necessary to read on and complete the sentence, which is riot complete Until you come to the saving clausé which excepts the Rope-W alk. The whole clause is one entire sentence, comprehending two dispositions connected with each other, and one arising out of the other; and the intention of the testator, as to the two objects of his bounty, his son and wife» cannot be ascertained until the sentence is finished. The exception or restriction is as operative at the end of the sentence as it would have been at the commencement, and the saving pervades the whole disposition, and extends to the first as well as the latter part of the clause» The saving does not relate to the estate created, but to the thing devised.

This construction is enforced by an expression in a subsequent part of his will» where the testator uses the term his estate, (evidently meaning Chatsworth) vesting in his son upon the death of his wife; importing thereby it could not vest in him during her life; and if it did not, the devise to Bowly must have been intended by the testator an Immediate, and nota contingent devise of the Rope-Walk to Bowly, otherwise it would have vested in his son during the life of the wife.

There is no complete disposition in the clause, until the creation of the estate limited to the wife by way of executory devise. The insertion of the saving manifests plainly what the devise is to operate on, by excepting a particular part, the Rope-Walk, which the generality of the words would have included, and if it had been the intention of the testator to apply the contingency to Bowly, it is natural to suppose that he would have repeated the words, making the estate contingent immediately after tlíe devise to him, which* of itself vests an absolute fee.

Buchanan, J, dissented.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED 
      
      
        ) See the case of Lammot's Heirs & Devisees vs. Bowly's, Heirs, on appeal from chancery, 6 Harr. & Johns. 500.
     