
    King vs. Ackerman.
    1. It is an established rule of the common law, that a devise of lands without words of limitation confers an estate for life only.
    2. But because this rule generally defeated the intention of the testator, the Courts have been astute in finding exceptions to it.
    3. Where land is devised without legal words of limitation, and a provision is added that the devisee may do therewith as he pleases, a fee is presumed to have been intended.
    4. It is also well settled, that where a devisee whose estate is not defined, is directed to pay debts, legacies, or a sum in gross, he takes a fee.
    5. This last rule though founded on inference is as technical and rigid in its application as that to which it is an exception; for Courts will not inquire into the relative value of the land and the charge, nor decide on the probability of the devisee being called on to pay the charge.
    6. Where a testator gives one piece of land to his son with the privilege of doing therewith as he pleases, and makes another devise to the same son, without using those or any similar words, it does not follow that there was no actual intent to give a fee in the last mentioned land.
    7. A Court may look beyond the face of the will, to explain an ambiguity as to the person or. property to which it applies, but never for the purpose of enlarging or diminishing the estate devised.
    This case came up on a writ of error .to the Circuit Court for the Southern District of New York. It was an ejectment for certain lots now within the limits of the city, and formerly part of the estate of Lawrence Benson, deceased.
    Lawrence Benson, at the time of his death, had two tracts of land, which he held in fee, one occupied'by himself and one by George Williams. He had one son and two grand-daughters, the children of a deceased daughter. He died in 1822, having made the will copied in the opinion of the Court, by wbicb be gave tbe Williams’ place to bis son Benjamin, “to do and dispose of as be may think proper;” and tbe. Homestead, without words of limitation, charging tbe devisee with tbe payment of $1,500, to bis grand-children. Tbe lots in controversy were part of tbe Homestead. Tbe plaintiff, after tbe death of Benjamin Benson, claimed an interest therein, as one of tbe beirs-at-law of Lawrence Benson. Tbe defendant asserted bis right under conveyances made by Benjamin Benson in bis lifetime. Tbe question was, whether tbe will gave Benjamin a fee in tbe Homestead, or only a life estate. .
    On tbe trial before the Circuit Court, tbe plaintiff offered evidence, to show that tbe Williams’ place, at tbe date of tbe will, and ever afterwards, was worth greatly more than tbe sum charged upon tbe' devisee in favor of tbe testator’s grandchildren. This evidence was rejected, and Mr. Justice Nelson held that, by tbe legal and true construction of tbe will, Benjamin. Benson took a fee in both places. Whereupon tbe plaintiff sued out this writ of error.
    
      Mr. Guiler, of New York, and Mr. Black, of Pennsylvania, for tbe plaintiff in error,
    argued that tbe will, properly construed, according to tbe law of New York, as it - stood in 1822, gave Benjamin Benson no more than a life estate in tbe Homestead place; that the fee simple remained undisposed of, and descended ¡o tbe testator’s beirs-at-law, of whom tbe plaintiff was one, and that she bad a right, after tbe life estate terminated, by tbe death, of Benjamin, to recover her share in it.
    It is undeniable that a devise of real property, to do and dispose of it as the devisee may think proper, creates an estate in fee. It is equally clear that, by tbe common law, a devise of land without words wbicb in any way denote tbe quantity of a donation of tbe estate, passes nothing but an estate for life. Benjamin, therefore, took a fee in tbe Williams’ place, and by tbe words of tbe will, giving him tbe Homestead, be could have only a life estate in that
    It is also admitted, that where a testator gives land without words pf limitation, . .as in this devise of the .Homestead, and therefore, by. the words of the devise, gives a life estate only . ap.ch life estate will be enlarged to a fee. if the sainé will imposes upon , the deyis.ee a personal charge with respect to the estate devised. This ruléis founded on tha,natural presumption, that no .testator would expose his devisee to the possible danger of becoming,a .loser by his bounty. The testator, in such a case, .mast, have meant to give a fee; because, if it -were a life estate, the devisee would, by accepting it, render himself personally Rabie for the .sum charged on him, and he might die befpre.the profits would be equal to the charge.
    Rut ‘there is no case in the books like this. Rere were two' devises, to the same person, of two different pieces of land, both pf, them.greatly exceeding in value the amount of the personal charge upon the devisee. One is in fee, and the other for life. The devisee could take what was given by the words of the will; he could. assume .the charge, ánd he could not possibly be á -loser, .though.he, should die the next instant. To avoid the dan ger of a loss, it was not necessary to presume that a fee .should be given in both places. The testator had provided against jhat .danger by simply giving his son a fee in one of them.
    Rut it is suggested that the farm in which a fee was given .might .¡possibly not be equal in value to the charge, and if that . he ,the case, then a loss might possibly ensue to the devisee, by .his,death, .before he ppúld make the deficiency out of the life ,.¡estate in ,the. pther. Surely the -principle of. no decided case, nor no logic ..that is. pound, can justify this argument. Where atestator gives land without saying for what estate, the Courts-must .ascertain his.acfual. intent as well as they can. From the naked ■devise .the.inference is, that he. meant a life estate .only; but,if a ■personal charge ip respect pf.it be imposed, you infer fairly and naturally that .he . meant a fpe,-because nothing less than a fee .pan m.ake the devisee absolutely safe. You reason here,..as in other cases, from .a fact that is known to another fact which is got kgpwn. Rut,if .yqu infer the testator’s intent from the supposed inadequacy of the fee simple, you reason to one unknown fact-from ¡anpther fact equally .unknown. To justify a Court in saying that the testator meant to give a fee without saying so, it is necessary that the possibility of loss should be clearly and plainly established as an undisputed fact. It is not to be assumed and imagined, and then made the basis of presumption for another fact.
    That the possibility of loss to the devisee is established here as a known fact, will hardly be contended; nor can we suppose that the Court will consider it even probable in the face of the plaintiff’s rejected offer to prove the contrary.
    The presumption that a testator meant a fee, because the devise is coupled with a charge, is not a presumption of law, but of fact; not legal and conclusive, but natural and open to be repelled by counter proof. It was, therefore, erroneous to reject the plaintiff’s evidence.
    But the plaintiff did not need the evidence. It was for the defendant to show that the Williams’ place was worth less than the charge. The error of the Circuit Court consisted .in .assuming the possibility of loss to the devisee when that fact was not proved, and upon evidence which shewed. it to be at least as probably false as true.
    Again, it will be agreed that if the testator’s intent to give no more than a life estate is apparent on the face of the will, it will not be enlarged to a fee by implication from a personal charge. In this case it is clear that he could have intended no more than a life estate. : He gave one place with words of perpetuity and followed it with a gift of another omitting those words, .and omitting all words of equivalent import. I give Benjamin the Homestead to dispose of as he thinks proper, and I give him the Williams’ place. Is not this as clear as if he had said I give him the Homestead and the Williams’ place; and as to the former he may do with that as he pleases ? Is not the omission of the enlarging words in the latter devise as plain an indication of the testator’s intention to make it a life estate as if he had expressed it in words ?
    
      Mr. O’Conor, of New1 York, for Defendant in Error.
    This case does not differ in principle from other cases in which the Courts have held it to be settled law that a devise of an estate in land without words of perpetuity is enlarged to a fee by charging the person of the devisee with the payment of money. The fact that other property was given in fee by the same will to the same person may furnish the ground for an argument, but not for a sound distinction.
    It was not the intention of the testator that Benjamin should take the property in question with the power of alienating it; but as it had come to him from his father, he meant that it should pass from his son to his “heirs. The words connected with the other devise, “ to do and dispose of,” &c., were intended to give the power of alienation, not to increase the estate. To give was, ■ in his mind, to give absolutely and forever, and “ to do and dispose of as he might think proper,” could add nothing to the duration of the estate bestowed in the Williams’ place, and the absence of those words in the devise of the Homestead would not make the estate in that any less. The supposed necessity for the use of those words arose out of the testator’s opinion that in the case of a family estate 'the right to alienate did not legally exist as an incident of ownership, but must be created by superadded words expressly giving the power.
    It is not denied that where property is given in a will without words of limitation, the donee can by force of the words alone take nothing but an estate for life. The testator has not expressed the idea of giving him any more, and the Courts cannot see any method of giving him any less. Consequently it is a necessary implication that he should take for life.
    This rule is, too old and too well.settled to be,questioned or shaken. But there is another rule equally well established — as old as the days of Coke — which insures our safety. Where, on a gift of lands without limitation, there "is a_ charge on the person of the devisee, which the devisee will incur as a binding personal obligation, if he accepts the devise, he becomes a purchaser. And as a purchaser under a will and not a deed, purchasing without words of limitation or qualification, he, by reasonable inference and construction buys the thing absolutely. Ass in all. other like cases of purchase, the Courts will supply any words of limitation or any assurances tbat may be deemed necessary to make tbe title absolute and perfect.
    Sucb being the principle upon wbicb tbe rule is founded its application to tbis case is clear as. to kny other. What difference can be made in tbe right of tbe devisee to take tbe Homestead absolutely as a purchaser by tbe fact tbat another estate is expressly given him in full property ? Having acquired them both for a consideration and having paid or bound himself to pay tbe price be is certainly not compelled to take one as a mere life tenant because tbe testator declared tbat be should have tbe other in fee. If the . testator bad been totally silenl concerning tbe quantity of estate — bad omitted to couple either devise with words of limitation, tbe law would have given both in fee. But tbe testator as to one devise expresses the legal conclusion. Does tbat destroy tbe devisee’s right- to have a legal conclusion drawn from tbe other ?
    Tbis old rule wbicb presumes that a testator meant to give land, only for life when be uses no words to express tbe quantity of tbe estate, defeats tbe actual intent in'most cases. Experience has shown it to be mischievous. Tbe justice and good sense of tbe world has abolished it. It has ceased to exist in England and in nearly (perhaps all) tbe States of tbis Union. Tbe Courts were always more anxious to find exceptions to tbe rule than to enforce tbe rule itself. If, therefore, it be doubtful whether tbis case is within it or not, tbe. Court will give tbe benefit of tbat doubt to' tbe devisee.
    It was proposed to ■show’ upon tbe trial tbat, at tbe time tbe decedent made bis will, and at the time of bis- death, tbis Williams’ lot was worth enough in tbe market to have paid the $1,500.
    Tbe title to land should not be permitted to turn on questions of tbat character. If it should be thought proper to look at tbe question of value, you would' perceive tbat tbe testator could not have bad any knowledge what would be the value of tbe land, in wbicb it is said a fee simple was unmistakably given, at tbe point of time when bis son might be coerced to pay tbis ■ sum of money; and consequently the value of that land, as á distinct subject from which to obtain the' means of paying' this legacy of $1,500 could not have entered into his contemplation, consequently the gift of these two pieces of land, placed as it is in one section, must be taken as an entirety; and the sum specified in the second clause of the will must be regarded as a condition imposed upon the devisee in respect to the whole property mentioned in that section.
    There is one view of the case in reference to the words of limitation which deserves attention concerning the Williams’ lot, the 'devisee was to do and dispose of it as he might think proper. This certainly meant that he was to have it free of all charges and incumbrances whatever. If he was bound to raise $1,500 out of it he would not have power to dispose of it, as he might think proper. On the contrary the residue only would be delivered over to his absolute disposition. The Homestead is not declared to be unfettered and the intent of the testator must therefore have been to impose the charge with respect to that alone. This seems a conclusive answer to that part of the argument on the other side which asserts that the charge was imposed only with respect to the Williams’ place.
   Mr. Justice GRIER.

It has been an established rule, in the construction of wills, that a devise of lands, without words • of limitation, .confers on the devisee an estate for life only. This rule' was founded rather on policy than on reason; for while it favored the heir-at-law, it generally defeated the intention of the testator. This is acknowledged by Lord Mansfield in Loveacre vs. Blight, (Cowper); and the interference of modern legislation, to abolish the rule and establish a contrary one, is evidence of the correctness of his remark. This change has been effected by statute in England and most if not all of tht States of this Union.

The will now presented for our consideration was made before this obnoxious rule was repealed in New York, and we are compelled to examine its provisions fettered by this technical, artificial, and' now nearly obsolete rule of construction. Courts have' always been asrute in searching for some equivalent popular phrase, or some provision of the Will incompatible- With' Buch imputed intention, to rescue it from the effect of this rülé. Thus, when a testator devises land without legal words’ of limitation, but adds that the devisee " may sell or do therewith as he pléaSes,” he is presumed to have intended to give a' feé; becaiUse such a power would be incompatible with a less estate. It is a'long settled rule also, that where a devisee, Whose estate is1 undefined, is directed to pay the testator’s debts or legacies; or' a specific sum in gross, he takes an estate in fee. The reason- on which this rule is founded is, that if , the devisee took- a less estate he might be damnified by the determination of his interest before reimbursement of his expenditure. This r'úle, thdügh founded on inference or implication, is nevertheless as technical and rigid in its application as that to which it is- an exception: for the Court will not inquire into the relative-valué of the' land and the charge; or, if the charge be contingent, will not weigh probabilities as to whether the devisee will ever be called on- to pay it. The intention of the testator as to the limitations of an estate devised can be judged and decided only from his- oWn language a's contained within the “four corners” of his‘ will. Parol evidence cannot be received to show that such inferérice Was not’founded on probability, or that this.rule of construction ought not, to apply under certain circumstances. This Would in effect be delivering the power and duty of construing' the Will to a jury.

The will of Lawrence Benson is very brief and is’ as- follows:

In the'first place, I give and bequeath unto my son, Benjamin L. Béñsón; all that estate now occupied by George Williams, to do and disposé of as he may think proper.

I also give and bequeath unto my son, Benjamin L. Benson the Homestead where I now live, situated on Harlem River:

Secondly. My will and intention is, that my soñ, Benjamin L. Benson, do give unto my ^grandchildren, after the d'ecéásé of my wife; the' sum of $1,500.

ThirdXy. The income; of these legacies, and als'o of my estate, ■ real and personal, I give unto my loving wife, Mkriá Béítsbn, during her widowhood, to do and dispose of as'she may think proper.”

It is plain that this instrument has been written by a person '‘inops concilii,” and wholly ignorant of proper legal phraseology.

He uses the term bequeath” instead of “ devise" in the gift of his real estate.

By the first clause he gives his two pieces, of real estate to his son Benjamin, who appears to be the chief object of his bounty.

• By the second, he charges the sum of $1,500 on Benjamin to be paid to the grandchildren of testator.

By the third, hé gives to his wife a life estate on all of his estate, real and personal, to be forfeited if she marry again.

Now, we must observe,

1st. That the son has clearly but an estate in remainder in the lands devised to him.
2d. That it is a vested remainder.
3d. That this testator not only postpones the possession and enjoyment of the land devised to his son for an indefinite time, but charges him with the payment of a gross sum of money, which he will be personally liable to pay, for land which he may never personally possess or enjoy.

If the charge is sufficient in law to give the devisee an estate in fee by implication or presumption, how muoh stronger is this presumption when his enjoyment of it is indefinitely postponed.

But it is contended, that, because the testator has used the • phrase “ to do and dispose of as he may think proper," as regards the Williams’ farm, and in the devise of the Homestead has omitted it, such omission as to the latter is equivalent to an express limitation of it to the life of the devisee; and that the Court ought to presume that the sum to be paid was intended as a consideration for the first only; and if they will not presume it for want of evidence of its sufficiency, that parol evidence ought to be admitted to show the value of the Williams’ property to have been more than sufficient to pay the sum plainly charged on both.

Now there is no established rule of construction that if a testator having devised two messuages to his son and charged the devisee with the payment of legacies that if he add this informal power as to one, it is equivalent to an expressed limitation as to the other. Nor is it a necessary inference or logical conclusion, arising from the omission to use certain informal words, which have been construed to show an intention to give a fee as to one, that the testator did not intend to give a fee in the other of the messuages charged. Besides, it is clear that Benjamin could not repudiate his obligation to pay the legacies by refusing to accept the gift of the Williams’ farm, while he retained that of the Homestead. To conclude, therefore, from this fact that the testator did not intend to give a fee in both, would be mere conjecture, and that, with no sufficient reason'to support it.

The face of this will shows that the testator did not suppose these informal words, giving a power to sell as to one, were necessary to enlarge the estaté to a fee, much less that their omission would limit the devise of the other to a life estate, for he adds the same power to the life estate given to his -wife.

If we werb to indulge in conjecture, why this phrase was coupled with one of the estates devised and not with the other, it would be, that the testator intended to confine the charge of the legacies to the "Homestead ” and not the Williams’ farm, or that he wished, the one to remain in the family and name, while the son should be at full liberty to dispose of the other as he might think proper.

The rule of law which gives a fee, where the devisee is charged with a sum of money, is a technical dominant rule, and intended to defeat the effect of the former rule which itself so often defeated the intention of the testator.

Courts have' always been astute, as we have said, to find reasons for rescuing a will from the artificial rule established in favor of the heir-at-law, and will not even be acute in searching for reasons to restore its force, where the statute has not abolished it We are not compelled to make this inference or implication through submission to any established rule of construction; on the contrary, we are required to make an exception tc. one: on mere conjecture, and to introduce parol testimony as to value to justify a departure from it. A Court may look beyond tbe face uf the -will where there is an ambiguity as to the person or property to which it is applicable, but no case can be found whore such testimony has been introduced to enlarge or dininish the estate devised.

We are of opinion, therefore, that Benjamin L. Benson took an estate in fee in both the messuages described in the will.

The judgment of the Circuit Court is therefore affirmed with oosts.  