
    Barheydt v. Barheydt, 20 Wend. 576.
    Not reported in Chancery.
    
      Devise ; Fee Simple.
    
    In this case, the Chancellor held, that an estate devised to a grandson of the testator, without any words of limitation, to create a fee, gave only a life estate, and that devises to the sons of the testator of lands, with directions to the son to pay certain legacies out of said estate,” gave only a life estate to the son a'nd grandson.
    The Court of Errors held, that the devise “of the upper half of a farm” to a son of the testator, and of the “ lower part1 of the same farm to a son of such son” then living, without words of perpetuity in the devise to either, but with a condition annexed that the son shall pay certain legacies to his brothers and sisters, gives a fee by implication as well to the grandson as the son.
    
   Chief Justice Nelson, who alone delivered an opinion in this case, announced the following conclusions. 1. That the legacies were a personal charge upon the testator’s son John, inasmuch as the life estate might be insufficient, and he was to pay it out of the estate at all events; and therefore must take the fee.

2. That he is made personally liable in respect to the whole of the farm devised—by the terms of the will—“ said estate,” referring to the whole.

3. That each devisee must take a fee, in order to enable the father to discharge the duty imposed upon him. by other portions of the will, namely the payment of the legacies as they are charged upon both interests devised.

The decree of the Chancellor was accordingly reversed ; all the members of the court with one exception concurring in the opinion of the Chief Justice.  