
    Jackson, ex dem. Townsend and others, against Bull.
    NEWYORK,
    May, 1813.
    devised a farm to his two sons, j. iyto beTit them and for them to^ pay daughters of eachfamtthen pafdby°my executors out and move's^ debts tobe pa'd h^ Ishafidie seiwas ° held, there being no apt words of limitation, sees took ari only? and the charge, as to the payment of the debts, the'fandfand persons of the devisees, no could arise by
    th" charge b on the estate, no words * of limitation, the devisee takes an estate for Ufe only, but where the charge is on the person of the devisee, in respect to the estate in his hands, he takes a fee,'by implication. But where there is á general charge on the whole estate, a deviséof a particular part will not raise a fee, by implication.
    THIS was an action of ejectment, and was tried at the Dutchess . . _ . •* circuit, m September, 1812, before Mr. Justice Yates.
    
    
      Joshua Hamlin died seised of the premises in question, leavthree sons, David, Joshua and Ephraim, and three daugh* ters, Lydia, Elisabeth, the wife of Townsend, and Mehitabel. Joshua died about 8 years ago, and Ephraim about 9 years ago, ^ the widow about a year since. Lydia also died, leaving four daughters, Phatbe, Elisabeth, Lydia and Mary. Elisabeth, the wife of Townsend, and the four grand-daughters, were the lessors of the plaintiff, and claimed two sixths of the premises, as heirs ^ Joshua Hamlin the elder.
    The defendant read in evidence.the will of Joshua Hamlin the elder, dated the 1st of August j 1783, in which he devised as follows í “ As for the estate which God hath given me, I dispose ¿f ag follows: first: I give to my loving wife one third part of mr ? o s o r j moveables for her to dispose of as she pleases, after my decease, and also the use of one third of my farm, that I now live on, during her natural life, or till she marries again; when married to resign the lands to my two sons, Joshua and Ephraim. And I . ° ., , . give to my son David, the farm he now lives on; and I give to my two sons, Joshua and Ephraim, the farm I now live on, to be *Hy divided between them; and for Joshua and Ephraim to pay to my daughters, Lydia, and Betsey, and Mehitabel, and Sarah, twenty pounds apiece, to be paid by my executors out of my money and moveables; the debts to be paid out of my estate d of; and I do hereby ordain and appoint my wife Mary, and my son Josfvua, to be my executors, in trust, to take care and see that my intent and meaning is truly perform
    
      The defendant also gave in evidence the record of a deed from Joshua Hamlin the elder, to his son David, in fee, of the farm devised to him, dated the 20th of April, 1795, for the consideration of 360 pounds.
    It appeared that some years before the death of the testator, Joshua and Ephraim, his sons, occupied the farm separately. Joshua lived on the part now occupied by the defendant, and where his father lived, and built an addition to the house. Ephraim lived on another part of the farm, where he built a house before his father’s death.
    It appeared, also, that the testator was about 80 years of age when he died, acd left very little personal property, not more than to the value oí" 100 dollars, and but one dollar of money in his chest.
    A verdict was taken for the plaintiff, for two sixths of the premises, subject to the opinion of the court on a case containing the above "facts.
    
      J. Tallmadge, jun. for the plaintiff,
    relied on the case of Jackson, ex dem. Harris, v. Harris, as in point, to show that Joshua and Ephraim took only an estate for life.
    Oakley, contra.
    1. A conveyance may be presumed from the testator to his sons Joshua and Ephraim, about the time he conveyed the farm to his son David. It appears that they occupied Separate parts, erected buildings, and exercised acts of ownership; and the facts fully authorize the presumption of a deed to them.
    2. But" we contend that Joshua and Ephraim took an estate in fee under the will. In the construction of wills the intention is always to be carried into effect, if possible; and courts construe the words of the will liberally or strictly, in order to effectuate the intent, which is to be gathered from the whole will.
    
    The testator sets out with declaring his intention to dispose of liis whole estate. He devises to his wife, then gives a farm to his son David, and next to his sons Joshua and Ephraim, and gives legacies to his daughters, which Lord Mansfield‡ calls disinheriting legacies. The introductory clause, though it aids in the construction, will not, of itself, give a fee; but, taken in connexion with the subsequent devise, it is sufficient to show the intent of the testator to give a fee to Joshua and Ephraim.
    
    Again, they are to take a fee, because they are to pay legacies chargeable on the real estate.
    
      In Jackson v. Harris, the case turned on the meaning of the word estate, which was held to mean both roai and personal, and the court said it was contingent whether the devisee ever would be chargeable with the payment of the legacies. That decision must be taken with certain qualifications, It cannot apply where the legacies or debts are, by the express terms of the will, charged on the realty, only in case the personalty is deficient; nor where the contingency arising from such a general charge on the estate, is rebutted by the facts in the case, showing a deficiency of personal estate. In Jackson v. Harris, the contingency implied from the word estate was not rebutted by the facts; for it appeared that the personal estate was sufficient, and that the debts and legacies were, in fact, paid out of it. If it is held that the charge is contingent merely because the personal estate is made liable in the first instance, that case cannot be reconciled with the English decisions.
    
    The fact was proved that the personal estate was greatly deficient ; it was scarcely worth 100 dollars, and there were three legatees, entitled to 20 pounds each.
    The parol evidence was admissible;J and the plaintiff ought not to object to it, for it came out on his own inquiry.
    3. Again, Joshua and Ephraim take a fee, because they are directed to pay the debts out of the real estate. The words are, “ the debts are to be paid out of my estate that I shall die seised of.” The words “ seised of” technically apply to the real estate only, and the testator had no other estate than that devised to hi» sons.
    Again, the devisees took the estate immediately on the death of the testator, subject to the payment of the debts. If so, it was an estate in fee.
    It may, perhaps, be objected, that the charge is not on the person of the devisee, but only on the estate devised. The distinction is, whether the charge is to be paid out of the whole estaté devised, or only out of the profits,- And if out of the whole estate, whether the devisee takes it immediately, subject to the payment of the debts, or after the payment of debts. And the English cases turn on the words " after the payme'nt of debts.” We think it clear that the devisees, in the present case, took the estate immediately; and they are to pay the debts out of the estate, no other person being able to do it.
    
      
      Tallmadge, in reply,
    said, that the heir at law was a favourite with courts, and would not he disinherited without clear and ex- , press words.
    
    The introductory clause here will not carry a fee ; and the other clause, “the debts to be paid out of the estate I die seised of,” is to be taken in connexion with the preceding clause, where the testator directs his executors to pay the legacies out of the personal estate. It is merely a direction to the executor. The word seised means nothing more than possessed. If the debts and legacies were to be paid out of the personal estate, or by the executors, then no fee passed.
    
    Where the charge is general on the estate, it is contingent. The devisee takes a fee only where the charge is on the devisee personally, or where the payment of the debts and legacies is the condition on which he is to take the estate.
    
    The legacies to the daughters are not to be regarded as disinheriting bequests, or sufficient to bar them as. heirs at law.
    
    
      
       8 Johns, Rep. 141.
    
    
      
       3 Wils. 142. 3 Burr. 1541 6 Johns. Rep. 191.
    
    
      
      
        Cowp, 672.
      
    
    
      
       8 Term. 497. 2 Atk. 341.
    
    
      
      
         8 Term Rep. 1. 3 Term Rep. 356. 4 East, 496. 5 East, 87.
    
    
      
       6 Term Rep. 310. 3 Keb. 49.
    
    
      
       2 Bos. & Pull. 247. 5 East, 87.
    
    
      
      
        Cowp. 92. 3 Wils. 418.
    
    
      
       3 Burr. 1618. 11 East, 220.
    
    
      
       3 Johns. Rep. 139.
    
    
      
       5 East, 87. 96. 5 Term’ Rep. 558. 8 Term Rep. 497.
    
    
      
       3 Binney's Rep. 486. Cowp. 355, 661.
    
   Kent, Ch. J.

delivered the opinion of the court. The lessors of the plaintiff claim as heirs at law of Joshua Hamlin, deceased, and the only question in the case is, whether his sons, Joshua and Ephraim, under whom the defendants hold, took, by virtue of his will, an estate in fee or for life. The' testator gave to his son David the farm he (David) then lived on, and he gave to his two sons, Joshua and Ephraim, the farm he, the testator, lived on, to be equally divided between them, and adds, “ the debts to be paid out of my estate that I shall die seised of.” As there are no apt ■words of limitation, the two. sons took only an estate for life, unless a fee is to be inferred by implication, by reason of the charge of the debts upon the estate.

The distinction which runs through the cases is, that where the charge is upon the estate, and there arc no words of limitation, the devisee takes only an estate for life; but where the charge is on the person of the devisee, in respect of the estate in his hands, he takes a fee, on the principle that he might otherwise be a loser. (Goodtitle v. Maddern, 4 East, 496. Doe v. Snelling, 5 East, 87. Moore v. Denn, 2 Bos, & Pull. 247. Doe v. Clarke, 5 Bos. & Pull. 343. Colyer’s Case, 6 Co. 16.) When the charge is on the person, the devisee takes the estate, on condition of paying the charge, and if he die in the lifetime of the testator, the charge ceases; and if he refuse to accept ayd perform, the devise is void, and the heir may enter. In this case, the will merely ereated the charge upon the estate. There was no personal charge upon the devisees, and, consequently, the case is not within the reason of the rule for enlarging the estate into a fee, by reason of a charge. It may admit of some dispute what words will amount to a charge on the person, so as to render the devisee who accepts of the land, personally and at all events, liable for the debt or legacy charged, and the cases on this point are not altogether consistent. In Dickens v. Marshall, (Cro. Elis. 330.) A. devised all his lands and goods after his debts and legacies paid ; and in Denn v. Miller, (5 Term, Rep. 558.) the devise was of all lands and goods, afterpayment of his just debts, ¿te. ,and it was held, in both cases, that the devisee took only an estate for life; and though the latter decision was reversed in the exchequer-chamber, (3 Anst. 781. 1 Bos. & Pull. 558.) it was not upon the point of the nature - and effect of the charge. In Doe v. Allen, (8 Term Rep. 497.) the devise was, that after the debts being first paid out of the personal, mid if not sufficient, out of the real estate, he devised, &c. and the devisee was held to take only an estate for life. So in Redoubt v. Redoubt, (8 Vin. 217, pl. 18.) the devise was that 500Z, be paid as soon as may be out of the aforesaid estate and premises ; and in Doe v. Clarke, (5 Bos. & Pull. 343.) the words were, I charge all my estate, both real and personal, with the payment of the above legacies, and yet in neither case did the devisee take a fee for want of apt words of inheritance.

These are instances of a charge upon the land and not upon the ■ person. But the following cases may be cited to illustrate the other part of the rule. As in Colyer's Case, (6 Co. 16.) the devise was to A. he paying, &c. and in Doe v. Holmes, (8 Term Rep. 1.) the words were, I give my house and furniture to A. she paying, &c. and in Goodtitle v. Maddern, (4 East, 496.) the devise was, of all the rest, See. of lands, goods and chattels, &c. to my executrix, &c. so that she pay, &c. and they were all held to be 'charges on the person, so as to carry a fee,, by reason of the charge. There are other cases of this kind, which have been held to carry a fee, though the words were not so strong. Thus in Philips v. Hele, (Rep. in Ch. v. 1. p. 101.) the words were, all the rest of my goods and lands I give to A. to discharge all things charged in my will; and in Doe v. Richardson, (3 Term Rep. 356.) the devise was of all the lands, See. his legacies and funeral expenses being thereout paid ; and in Doe v. Snelling, (5 East, 87.) the de» vise was of lands and goods, after'having thereout first paid debts and legacies, and in all these cases, the devisee was held to taire a fee.

It will be in vain, as must appear from this imperfect sketch of a few leading cases, to look for uniformity and harmony of decision in this branch of the law. The opinion of the court of C. B. in Doe v. Clarke, (5 Bos. & Pull. 343.) very justly questions the application of the general principle in the two last cases above referred to, since the charge appeared very evidently to be upon the estate, and not personally upon the devisee. Cases may frequently mislead us, by their misapplication of principle, but it is our duty always to endeavour to recall and adhere to the principle, in opposition to any particular case. The reasoning of Sir James Mansfield is the most plain and logical of any in the modern cases on this point; and the case of Doe v. Clarke is the most recent, and, perhaps, the most sound authority, and it is decisive to show that the charge in the present case was upon the land, and not upon the person of the devisees, and that they took only an estate for life. That case, as well as the case of Redoubt v. Redoubt, is in point on another ground, and shows that the devisees here took only for life. Sir J. Mansfield says, there is no case which , has decided that a general charge upon the whole estate, will give a fee to the devisee of only a particular part of that estate. In Redoubt v. Redoubt, and in Doe v. Clarke, the charge was general, and the devise in question only of a particular part of the estate, and the charge was held not to enlarge the estate to a fee. In the present case, also, the charge is upon the whole estate generally, and not specifically upon the farm devised to the two sons under whom the defendants hold.

The case of Jackson v. Harris (8 Johns. Rep. 141.) is also in point. The charge there was general, and the devise to Henry Harris of a particular lot. The charge there was also on the estate, and not on the person, and the decision was undoubtedly correct upon the principles above laid down; though perhaps that decision would have rested better upon one or the other of those grounds, (for either is sufficient,) than upon the principle which was there assumed.

The lessors of the plaintiff are accordingly entitled to recover the proportion stated in the verdict.

Judgment for the plaintiff.  