
    Davies v. Miller and Others.
    [Monday, October 30th, 1797.]
    What Words Pass a Fee lo a Will ?
    Same-“Estate” — Case at Bar. — The word estate, may be transposed from the preamble or other parts of a will, and annexed to the devise, so as to fulfil the intention of the testator, to give a fee in this case, that intention was further manifested by the use of the same word in the conclusion of the will.
    Appellate Practice — Affirmance of Judgment.— Though the opinion of the Court below appear to be confined to one point, yet if it appear upon the whole record, that the judgment is substantially right, it must be affirmed.
    Devise — Possession of Lands. — Quiere. Whether the act of 1792, enables the testator to devise lands of which he was not In possession ? LSee Harrison et al. y. Allen, 3 Call, 289.1
    In a writ of right brought by Davies the demandant, against Miller and others, tenants, the case on a bill of exceptions to the Court’s opinion, appeared to be as follows :
    John Miller being seised of the lands in fee, made his last will and testament in writing, dated the 21st of Eebruary, 1742, and admitted to record the next month; which, so far as concerns the present case, was as follows:
    
      ‘ ‘I John Miller being weak, &c. do make my will, and dispose of my estate in manner following. ’ ’ Then after directing that his body should be buried at the discretion of his executors, he proceeds thus :
    “Secundo, I give to John Berry during the life of my daughter Mary Berry wife to the said John one hundred acres of land, containing the plantation where I now dwell all on this side of the Creek and bounded &c., and after the death of my above-mentioned daughter Mary, ’tis my desire the said land 128 should return to my son ^Christopher Miller or his heirs. I give all my other lands to my son Christopher above named, containing one hundred and fifty acres including the plantation on which he now lives.” Then follow several bequests of personal property and a slave; and then the last clause in these words:
    1 ‘I leave all the corn and tobacco now upon the plantation to John Berry to pay my personal debts; this is my will and the way I desire my estate to be disposed of, revoking any other will or testament made by me formerly.”
    The bill of exceptions further stated, that the said John Miller, the testator, left Christopher Miller his son in the will mentioned. And, also, as the demandant alleged and offered to prove, another Christopher Miller his ’grandson and heir at law. That this last named Christopher was the eldest son of the testator’s eldest son, who died in the life-time of the testator. That after the testator’s death,- the said Christopher, his son, entered on the lands in question, claiming them by virtue of the following clause of the will: “I give all my other lands to my son Christopher named above, containing one hundred and fifty acres, including the plantation on which he now lives;” the said Christopher, the alleged grandson, being then living. That after the death of Christopher the son, the tenants entered as his sons and devisees. That on the 16th of March, 1792, Christopher the grandson, claiming as heir at law of the testator John Miller, brought his writ of right for the same, which afterwards abated by the death of the said Christopher, who died without having recovered possession of the land; but, made his will on the 2d of June, 1792, attested by three witnesses, but proved only by one, on the 23d of September, 1793, and thereby devised the lands to the demandant. Whereupon, the tenants, without going into evidence on their part, moved the Court, that it appeared from the demandant’s own shewing, that the said Christopher, the testator, was not either at the time of making and publishing 129 his said *will, or at the time of his death, seised or possessed of the said lands, and, therefore, that the said devise was void. That the Court was of this opinion, and instructed the jury accordingly. The jury found for the u tenants. The Court gave judgment agreeable to the verdict. And the demandant appealed therefrom to this Court.
    Wickham, for the appellant.
    The question is, if a man out of possession of lands, can devise them? Great doubts have arisen with respect to such a devise, under the statute of wills in England. But, I believe, if it were necessary, that I could mantain the devise under that statute, in which the words are ‘' any person having lands may devise them.” But, be that as it may, the act of 1792, [a re-enactment of 1785, 12 Stat. Larg. 140; c. 104, § 1, R. C. ed. 1819,] expressly includes the case, and removes all doubt upon the subject; and, ■so I have been informed it has been decided in this Court.
    Warden, contra.
    There is another question in the cause; whether the devise by John Miller, did not carry a fee in these lands to his son Christopher, the devisee? In this devise, there are no words expressly describing a smaller estate, and, therefore, the words in the latter part of the will, in which the testator says, “this is my will, and this is the way I wish to have my estate disposed of,” will carry the fee. Eor, the word estate carries the whole interest and means all the right of the testator. This construction is supported by the introductory words, where the testator says, I dispose of my estate as follows; thereby plainly shewing that he meant to dispose of his whole estate, and to die intestate as to no part thereof. Words of inheritance, are not necessary to create an estate in fee simple in a will. Guthrie v. Guthrie, in this Court at the last term. Ante, p. 5.
    Then, upon the point made by Mr. Wickham, the law of 1792 was made to govern rights accruing after, and not those which were acquired before the passage thereof. The words are, that every 130 ^person shall have power to devise all the estate, right, title and interest in possession, reversion or remainder, which he hath or at the time of his death shall have of, in or to lands, &c. But, .the testator in this case, had no estate, title or interest either in possession, reversion or remainder; for, he was not in possession, and the claim he set up was neither in reversion nor remainder; and, consequently,he came, within neither of the provisions of the statute.
    Again, the will of Christopher was only proved by one witness, which was not sufficient; and the tenants had been in possession fifty years. '
    If, enough appears upon the record to shew that the tenants have the better right, the Court will decide for them, without sending the cause back to the District Court to go through the mere form of another trial.
    Wickham, in reply.
    It is said, that Christopher, the son, took a fee by the devise to him in John Miller’s will; which I do not admit. By the first clause, he had clearly only an estate for life by the settled law of the land. There must be a sufficient expression to alter this rule; and the words in the latter clause do not contain such an expression. The words there, are according to the common style in wills. To have had the effect contended for, the word all should have been inserted. Besides, there is a clause which expresses another idea; for, it is to the devisee and his heirs, and yet, in the next clause, to the same devisee, he does not use words of perpetuity or inheritance; which shews, that when he intended a fee, he knew how to create it.
    It was said, that the act of 1792, relates to estates acquired afterwards, and not to those which the testator had before; but there is no reason for the distinction: The words are sufficient to enable him to devise his interest of every kind; and, the decision of this Court was so.
    Although, the will was proved only by one witness in the Court where probat was obtained, yet it does not appear, but that there might have been other 131 ^evidence, at the trial. But, the Court will consider only what point was made and decided by the inferior Court; and, if the decision on that was wrong, they will reverse the judgment and award a new. trial. Mr. Warden says, that the Court will decide upon the whole record; and, if our conduct was improper prior to the decision, he would be right; but no such thing appears, and therefore, I think the Court is confined to the point in decision. Eor, what was stated prior thereto, was only explanation and inducements leading to the point which was decided.
    Warden. There is no evidence that the will of Christopher was proved as»the law •requires, and it cannot be presumed. The word estate means the whole interest, and so the testator intended it.
    
      
      WilI — Construction — What Words Pass Fee — “Estate.” — It is a rule of property, that the word “estate,” alone, in the preamble, or introductory part of a will, Is sufficient to pass the fee. For this proposition the principal case is cited with approval in Wyatt v. Sadler, 1 Munf. 543, 548, 549; Goodrich v. Harding, 3 Rand. 283. See Watson v. Powell, 3 Call 306, in which the words “temporal estate,” had the same effect.
      Same — Same — Same — “Temporal Goods.” — So also, the words “temporal goods” maybe borrowed from the preamble of a will and coupled with a devising clause, to enlarge a life-estate Into a fee simple. Goodrich v. Harding, 3 Rand. 280, citing and expressly approving Wyatt v. Sadler, 1 Munf. 537.
      Same — Same—Intention of Testator. — The principal case Is cited with approval in Wyatt v. Sadler, 1 Munf. 541, for the proposition that whenever, from the whole face and context of the will, the intention of the testator can be collected, full effect must be given to it by the courts.
    
    
      
      Appellate Practice — Erroneous Instructions — Affirmance of Judgment. — The principal case is cited in Osborne v. Francis, 38 W. Va. 323, 18 S. E. Rep. 595; and distinguished in Wiley v. Givens, 6 Gratt. 284.
    
   PENDBETON, President.

This is an appeal from the District Court of King and Queen, where, in a writ of right, the mise was joined on the mere right; and a jury were sworn and charged to decide it.

The demandant filed a bill of exceptions, stating the title of both parties to be derived from John Miller, who died seised, in 1742: the demandant claiming under Christopher his grandson, and heir at law, the tenants under Christopher his son, to whom the testator devised it bj' his will.

By the strict wording of the opinion, it would seem as if it was- founded on the statute, requiring, as the Court appear to have supposed, seisin and possession of the lands to enable a testator to dispose of them, which Christopher, the grandson, had not, and, therefore, according to the opinion, could not devise them, though he should have had title. But, if it appears, by the demandant’s own shewing, that Christopher, the grandson, had neither seisin, possession or title, so that he could derive none from him, the opinion and verdict were substantially right, and the Court will affirm the judgment.

Whether the heir had a title, depends on the will of his ancestor devising the 132 lands to his son *Christopher without limitation, but declaring in the preamble he intended to dispose of his estate, and towards the conclusion, that he had disposed of his estate according to his will.

If this passed a fee to the son, his title was in the tenants, and the heir had no title. If, on the contrary, it only passed an estate for life, the reversion descended to the heir, who had a right to the possession on the death of Christopher his son.

That the word estate, coupled with the devise, will comprehend the interest, as well as describe the thing, and pass a fee, has long been settled. That it may be transposed from the preamble or other parts of the will, and annexed to the devise, to fulfil the intention of the testator, is warranted by precedents in England and in this Court.

The testator, here, has doubly fortified his devise, by the word estate in the preamble and conclusion of his will: which the Court do not hesitate to say passed a fee to Christopher the son; and that the heir had not, and consequently the demand-ant has no title.

Affirm the judgment.  