
    Dudley vers. Dudley & al. ()
    Devise as follows: “ I give to my Son W. my new Farm in R.,” “ from whence he shall annually supply and bring Home to his Mother her Firewood during her Life.’; “ I also give him my Farm of 1000 Acres at M. and £ 300 toward building him an House.” After other Legacies and a Residuary Devise, the following:
    
      THE late Governour Dudley, by his Will, devised as follows:
    “ I give my Wife One Hundred Pounds per “ Annum, to be paid quarterly during her Life by “ Paul Dudley my eldest Son, out of the Issues and “ Rents of my Estates herein given him.
    “ I give to my Son, William Dudley, my new “Farm in the Woods in Roxbury, containing 150 “ Acres with the Woodland there, purchased of “ Devotion Craft, from whence he shall annually “ supply and bring Home to his Mother her Fire- “ wood during her Life.
    1762.
    “ And my Will is that
    my Lands defcend after
    the Manner of England
    forever; to
    the Male
    Heirs firft and
    after to the
    Females. If
    either of my Sons die with-
    out Male
    Miie, his
    Brother and
    his Male Iffue
    lhall inherit
    the Lands
    herein be-
    queathed.” Held, that W. took a Fee Simple in the “ Farm of 1000 Acres at M.”
    “ I also give him my Farm of one 1000 Acres “ at Manchaug and Three Hundred Pounds toward “ building him an House.
    “I have already disposed in Marriage of my “ Four Daughters, and paid them what I intended.
    “ I further give each of them 1000 Acres, to be “ taken out of my 6000 Acres in the Town of Ox“ford; and to my Nephew Daniel Allen, and my “ Niece Ann Hilton, 500 Acres, out of the same “ Dividend, to be equally divided between them; “all those Lands to descend to the Children sev“erally, and the Heirs of their Bodies.
    
    “ To my eldest Son Paul I give the Inheritance “ of all my Houses and Lands in Roxbury, Oxford, “ Woodstock, Newtown, Brookline, Merrimack, or “ elsewhere, all my Stock, Debt, Money, and all “ Estate belonging to me whatsoever, except as “ above set down. And my Will is that my Lands “ descend after the Manner of England forever; to the “ Male Heirs first, and after to the Females. If either “ of my Sons die without Male Issue, his Brother and “ his Male Issue shall inherit the Lands herein be- “ queathed," &c.
    
    The Question in this Case was, whether William Dudley took a Fee Simple by his Father’s Will.
    
      
      Mr. Otis for the Fee Simple. ()
    The Words upon which I suppose they build their Fee Tail are these. “ If either of my Sons die without Male Issue, his “ Brother,” &c. There are no Words precedent to these which can be supposed in the least to savour that Opinion, but on the contrary are inconsistent with it; he must have intended to have given him a Fee in the 1000 Acres, or his End, which was to build him an House, could not be answered, for £300 can’t be supposed any way sufficient, and therefore we must suppose he designed William should sell the Land; and it is Law and Reason that a special Devise should take Effect, which could not otherwise, a general Clause notwithstanding, nor is the Law to be wrested in favor of such Estates; for however Estates Tail were once savoured and praised, as in the Statute De Donis, yet Ld. Coke tells us they were convinced of their Mistake, and exclaims in pretty full Terms. Co. L. 20. Wood, Inst. And here the Reason is greater than in England, for here all Estates are partable. ()
    Nay I don’t think the Words give even Paul an Estate Tail. The Intention of the Testator is one of the grand Principles, and shall not be counteracted, and it is to be savoured as far as possible consistent with the Rules of the Common Law; and, unless there are some operative Words, Fee Simple must be supposed to be given. Nowhere are no express Words in Favour of a Fee Simple. “And my Will is that my Land descend after the Man"ner of England forever, to the Male Heirs first, “ and after to the Females, &c.” I think it manisest his Intention was, that they should descend according to the Common Law, which knows no Estate Tail; and that being his Intention, the Law will not admit an Inheritance contrary to the known Law of the Country; and this being contrary to the Law descends as a Fee Simple, and the Word “Male Heirs, &c.” shall be attributed to Unskillfulness.
    
      Mr. Kent for the Tail.
    
    Mr. Otis can’t suppose an Estate Tail can’t be made in this Province, so we need only inquire into the Testator’s Intention. Cites 3 Salk. 394, Fisher vs. Nichols, of the favourable Construction of Wills. In Paul’s Gift there was nothing enjoined him, but annual Payments which the Profits would secure. “To William I give “ Manchaug Farm, and £300 towards building him “ an House,” they are evidently separate. He gives him Manchaug Farm, and moreover I give him £300 towards building him an House. To Paul he gives the Inheritance of his Land, &c.; this Word is used in Tails. Vid. Cases in Eq. Abr. 178, 179. 1 Salk. Tit. Devise, 234.
    
      The Court asked, as there had been no Authorities yet produced on the other Side, whether it would not be more regular to have them read now, before the Council in Favour of the Tail closed. Upon which Mr. Gridley produced his Authorities. 1 Inst. 9 b, any Estate charged is a Fee Simple. 2 Peere Wms. 673. Siderfin, 312. Moore’s Rep. 53. Viner, Tit. Devise, 82. 3 Mod. 82.
    Mr. Trowbridge for the Tail.
    
    In his first Devise to his Wife, he gives her £6100, for Paul to payout of the Rents and Issues of his Estate, which evidently exclude from his Intention to give Paul a Fee Simple; so in the Gift of the Wood it is idle to say that is greater or anything near equal to the yearly Rents of the 150 Acres. And as to the Manchaug Farm and £8300; it is true £6300 would not build him an House at Roxbury, but does it appear that he meant so? Perhaps, and most probably, he intended on the Farm at Manchaug.
    
      Ch. Tuft.
    
    The words are build him an House; not an House simply, but him, one whom he knew was to live at Roxbury.
    
      Trowbridge continues. The first Words in a Will may direct, but the last shall controul, and this is the Difference between Wills and Deeds. The Devise to his Couzins is in these Words, “to descend to, “the Children fever ally, and the Heirs of their Bodies.”
    
    A Fee Tail may defend. If in the first Words he, intended a Fee Simple, in the last he altered his Mind, and intended to controul the first. “ If either, “ die without Male Issue, then,” &c. — either. A Devise of this Sort is as great an Estate Tail as can be given, and the Word Body shall be supplied. Lilly, Tit. Devise. 6 Coke, 16, Collier’s Case. Ventris, 230. Hawk. Abr. 17. Had he designed it should descend as Fee Simple in England, it would have descended to the Daughters of William before the Sons of Paul, &c., but here it is otherwise.
    
      Mr. Gridley for the Fee.
    
    The Intent of the Devisor is the only Thing your Honours will govern yourselves by, (Vid. Peere Wms. ut supra,) and that Intention is to be spelt out by little Hints, by other Devises, &c. Viner, Tit. Devise, 182. Not withstanding ’tis a Devise he lays ‘shall descend.’ He designed William should sell, and he must fell, and that gives a Fee Simple, as much as express Words. He designed William should live in Roxbury, and £6300 is not sufficient to build him an House there, a Dwelling House. The Law takes Notice of the Rule of Grants, Words in the Beginning and End refer to the Whole. Sid ut supra. It is not—I give 1000 Acres, I give him £6300 towards building him an House, but they are so coupled as to be the same; I give him 1000 Acres and £300 towards building him an House. Vid. Moore’s ut sup. (Ch. Tuft. In the Authority you cite, they were each equally applicable to the Purpose, here not: Land does not seem so much so as Money.) In this Country we make our Real Estate almost Personal Estate by Act of Parliament, and our own Acts; besides, Gov. Dudley did not perhaps leave a Sufficiency in Money. The Word descend I grant is used in Tails, but when it is used, there we always use the proper express, Words of Tail; here it is—shall descend to him—not the Heirs of the Body, &c. Estates Tail can never be supposed by a Devise after the Manner of England, for being a minor Estate should have been mentioned in express Words. Supposing the Females decease, there is no further Devise, if it is a Tail. The Law of this Province forbids his giving it as the Law of England: But if he meant so, it could not be Tail, for it is the Common Lays. I imagine Governor Dudley thought that was the Manner of England, that the Sons of the other should take exclusively of the Daughters of the other, and the Will is inaccurate throughout as to the Daughters. Shall what is understood be set aside by one insensible Expression?
    It was moved by Mr. Kent, and seconded by Mr. Trowbridge, that they might be heard again before Judgment, and the Court thinking it a Matter of Nicety and Consequence, desired a further Argument, and continued it to the next Term for Judgment. ()
    
      Mr. Otis.
    
    The single Question is, whether these Words, “ I also give him my Farm of 1000 Acres at Manchaug and Three Hundred Pounds to build him an House,” compared with the whole Will, make a Fee Simple or a Tail. The Words of Acts executed in the Life are to be “ to Heirs forever,” in a Fee Simple, “ Heirs of the Body ” general, Male or Female, in a Fee Tail; greater Indulgence is to be given to Wills.
    I shall endeavour to show that from this Clause by itself, or considered with Respect to the others, it must be the Intention of Dudley to give his Son a Fee Simple; and separately considered, there could be no Doubt; but ’tis the Clause “ after the Manner of England, &c.” which causes it. The Question will be whether the last Words create a Tail in any, even to the Estate given Paul, and if it does, whether they extend through the Whole. Ld. Hobart says the two great Principles upon which all Devises hang, are the Intention of the Testator, which shall be indulged as far as the Rules of Law admit.
    I think the Consideration of the Intention, is the most rational Way of judging of any Will; and I think whoever does that will think any Estate Tail remote from the Teslator’s Intention. The first Words are only an Inheritance according to the Intent of the Common Law; his Intent was, I allow, to make a Common Law Descent, Spite of the Province Law, — to cut off his Daughters only. We shall consider how far this Intent is to be indulged. No Man shall create an Estate contrary to the Laws of his Country; we know none according to the Course of the Common Law. As for the other Words of the Will, Manchaug Farm is given for such a Purpose, as could not be answered by such an Estate as they contend for; he has it given to build an House, which he could not do, if he had only his Life in it. Co. Lit. 9, b. It is an old Principle, that paying is an Argument that the Land shall go. It has been said that a Devise of Woodland formerly in this Country conveyed a Fee Simple, and that it has been adjudged for any Words that can amount to an Intent that the De-vifee shall have the Advantage of the Whole of it, shall have a Fee; it is not the first or last Part of a Will that shall stand, but the Whole together. Viner, 324, Tit. Devise. If he intended he should reap the same Benefit, as he would if it had been a Fee, it shall be. Viner, 224, 13. Will to be taken altogether. Ibid. 182, 11, 12, 13. His Intent being contrary to Law, first Devisees take a Fee Simple. Ibid. 229. Swin. 165, 141. Entails disfavoured.—No Tail unless the first Words give a Fee Simple; none where it is given in any such Manner. The first Words may be controuled, where it is a plain Fee Simple, here it is not; he tries to invent a new Conveyance, his Words are apt to convey according to the Law of England; he must either give it according to the Custom of the Country, or in Fee Tail general or special. An implied Estate Tail has never been raised when the first Words were to give an Estate unknown to the Law of the Country. No Testator was ever interpreted to mean to give a Tail because that came nearest to his Intention.
    
      Mr. Gridley’s Authorities: Sid. 312—Rule that first and last Words relate to the whole; middle to the middle only. Moor, Cafe 153, p. 52. Plowd. Comment. 540. Viner, Tit. Devise, 182, 11. 3 Lev. 111. 4 Mod. 154. 3 Lev. 125. 3 Mod. 182. Styles, 276, 392.
    
      Mr. Auchmuty.
    
    I shall consider this by looking into the Words of the Will, collect the Intent, and compare it with the Rules of Law.—“His Brother and his Male Issue shall inherit.” These Words are descriptive of an Estate Tail, and no other. The first Words are liable to be restrained, controuled, or defeated by the last; if a last Word contradict the first, the last shall stand. 1 Lilly, 449. Co. Lit. 112, b. The Words relate as well to William as Paul. Cro. Ja. 448. This is a Case Mr. Otis said could not be found. Cro. Ja. 695, Chadock v. Cowley. It seems absurd that an express Eftate may be controuled by latter Words, and yet that where there is no certain Estate given by the first Words, that they shall not; I should think they might a fortiori. 9 Coke, 128, Sonday’s Case. 1 Ld. Raymond, 185, Baker vs. Wall. Ib. 568, Nottingham vs. Jennings. Comyns, 739, Brice vs. Smith. I cite these to show the first Words need not be express, and that the last shall explain the first. I utterly deny that the giving Woodland could by Law give a Fee; but if that be the Case, when the Testator afterwards explains his Meaning, that must cause it to be otherwise. As to the Practice of the Court, the Rules of Law by being recollected would destroy it. I believe no Practice agreeable to that Rule of Woodland can be brought, and if there can, not where there are other such Words as are here.
    As to the House, it does not appear that it was to build an House at Roxbury; he was at that Time building an House there, and the Devise, which takes no Effect till the Death of the Testator, might be some Years off. — Could he not have passed it by Deed, had that been his Intent ? It is much more rational to conclude, that, as he had given him a Farm, he intended he should live there, therefore gave him £6300 to build him an House there, to encourage the Settlement: There are two Tracts given William and Paul much in the same Words. I can’t find any Reason why they should be confined to Paul; all the Lands therein bequeathed, in Case one died without Issue Male, are given to the other; he designing to entail all his Lands to the Survivor of his Sons, and his Male Issue, he has done it. I agree he intended to exclude the Daughters; could he then think he was giving a Fee Simple, when he expressly excludes them? He has not given a general Estate Tail, but confined it to Male Issue—They say he is making a new Estate, I say he has made an old one. In the Case of Raymond, ’tis said he intended an Estate Tail, because the Daughters were excluded. Take it as a Tail, all Purposes will be answered, the Daughters will be excluded, the Heirs Male will have it; and ’tis a Tail with Crois Remainders, all which he seems to have had in View. The Heir-at-Law is favoured—so he is here: As to the paying, it is not always denotive of a Fee: The Wood is out of Roxbury, what is that to Manchaug? He has given that Farm, and ordered that Wood to be furnished; there is a Difference where a Sum in gross is ordered, and where an annual Sum not exceeding the Rents. Co. Lit. 9, b. There is an Authority that says, where he gives it specially, it is not an Inheritance. 7 Bacon. William could not be a Loser by such a Payment. Gilbert cites Cro. Eliz. 498. If the Devifor orders A to pay B a Sum in grofs, this gives a Fee, though not even then, I suppose, if he afterwards explains it otherwise. As to the Authorities of Viner, they relate only to the Construction of Wills, which we agree with them : As for the Case from Moor, of the Coats, () they were to be paid forever: It would be inconsistent, but that as the Incumbrance was perpetual, the Estate should be perpetual also. The other Moor Case is only that all Parts of a Will are operative, we agree to it, if they can be reconciled. How can it be supposed the Land as well as £300 are to go towards building him an House?—the other Words of the Will dispose of the Land otherwise, this is in Answer to the Grammar Cafe (); Plowden’s Case is only the Say of Council. Moor’s Case of the Item () is answered by Cro. Ja. 695. The Intention of the Will can be no otherwise answered than by Tail;—if a Tail not an Iota is lost.
    
      Mr. Trowbridge.
    
    We all agree that the whole Will is to be taken together; that if the first Words are doubtful, the last may explain them, but if the first are express, the latter shall not controul them. It must be absurd to suppose that the Farm as well as Money was given to build an House; in some Cases the Item may couple, in some not. 5 Co. 7, Wyndham’s Case. 6 Co. 61, Catesby’s Case. That the Word “and” is to be governed according to the Subject-Matter. — If there is any particular Estate limited, paying does not make a Fee. 1 Vent. 227. Gilb. Law of Devises. Comyn’s, 539, Brice vs. Smith. Those Lands which he gives his Daughters, he expressly entails, so he does what he gives his Couzins, and uses the Word defend as he does here; as for the Word Inheritance, an Estate Tail 
      is as much an Inheritance as a Fee Simple. As for the Manner of England, I deny that he meant Common Law, he only intended it should be partable as here; If his Intent could not be answered according to the Rules of Law, the Law will mould it into such one, as is most agreeable to his Will and Design.
    
      Mr. Gridley.
    
    The Intent of the Devisor shall be the Pole Star of the Will, and then every Iota shall have its Force, if it can consistent with the rest. I agree that the Subject-Matter must govern in all Cases; the Subject-Matter here is a Supply to William to build him an House. With Regard to Mr. Trowbridge’s Authorities, I see not how they are applicable; the first is a Common Law Conveyance, to be judged by Common Law Maxims, to be taken moil strongly against the Grantor; here the Intent of the Devisor is to be pursued; — If the £300 is given for the House, the Lands are given; they are tied by an indissoluble Band, and can’t be separated, but by a Violence upon Common Sense. The Moor Case has Item, here is none. We must consider of our Country and Real Estate here : To a Person unacquainted with our Estate, this might seem strange, but to us who know Real Estates are liable for the Payment of Debts, and are by Acft of Parliament made Chattels Real, for the Payment of Debts, () that they are almost the only Things we have to trade upon, and that they continue in a Family scarce over three Generations, ’tis not strange they should be put upon the same Footing with Personal Estate. In this I take it, both must be supposed for the same Purpose, it is a Construction arises from the Necessity of the Thing, and the Nature of Real Estate here. As for the Objection against our Construction, that it is uncertain how long he would live; there was an House for Paul, and one designed for William; if there was none erecting, ’twas for one hereafter to be built, if one was built, to finish it or to reimburse him. As for the after Words; whether they shall destroy the Force of the First—the Words “ after the Manner of England,”—it being unlimited, it must be Common Law; who would suppose Tail Male to mean the Manner of England ?
    “The Heirs Male, and after to the Female;” the whole Complexion is to the Creation of a new Estate; this last ought to be wholly laid aside, this extraordinary, impossible Clause.
    If this Clause operate at all, it can’t take to the Manchaug Farm; if that can be satisfied elsewhere, it need not be applied here; let it go to the Roxbury Lands. 9 Mod. 154, Adams vs. Clark.
    
    
      
      (3) This was a review of a “ plea of partition ” brought by the younger children of William Dudley, against Thomas the eldest son. The Ipecial verdict found that the premises were the same called by the testator his “ farm, of a thousand acres at Manchaug,” that William died intestate, and that Thomas then entered on the premises; “ if therefore the said William, by force of the will aforesaid, took an estate in see simple in the thousand acres aforesaid, then they find for the defendants costs; otherwife they find for the original defendant and now plaintiff.”
    
    
      
      (4) The MS. report of the arguments in this case bears evidence of being the original minutes taken in court. A little confusion, and an occasional defect in grammar, are thus accounted for.
    
    
      
      (5) See post, Baker v. Mattocks.
      
    
    
      
      (4) The report of the case accordingly breaks off at this point in the MS., and is resumed between the cases of Gardner v. Purrington and Rogers v. Kenrick, decided at the next term. For convenience, however, it is printed as a whole.
    
    
      
      (5) Erroneously cited ; the “ Case of the Coats ” is Smith v. Syndal, 2 Salk. 685.
    
    
      
      (6) Sid. 312.
    
    
      
      (7) Moore, case 153.
    
    
      
      (8) Anc. Chart. 292.
    
   The Chief Justice

delivered the Judgment of the Court in Favour of the Fee Simple. () 
      
      (9) This judgment is recorded as of September term at Worcester, but the entry bears evidence of having been inserted at a later date. The decision was undoubtedly given, as here reported, at February term in Suffolk. It also appears that “ immediately upon entering up this judgment, the said Thomas moved for an appeal to his Majesty in Council, which the Court did not allow.” The Province Charter provided for an appeal to the King in “ personal actions ” only. Anc. Chart. 32.
      It is to be regretted that we have no means of ascertaining on what ground this decision was given. If the Court were satisfied that the land, as well as the money, was given “toward building the house,” it was evidently excepted from any operation of the subsequent general clause. But if the effect of that clause became necessary to be considered, a more difficult question must have arisen. The words directing a descent “according to the manner of England,” &c., seem clearly to intend a common law descent, in opposition to the law of the Province. But the words which immediately follow, “If either of my sons die,” &c., would seem to import an indefinite failure of issue, and to give the brothers estates in tail male general, with cross remainders, also in tail male. Abbott v. Essex Co. 18 How. 202. Hall v. Priest, 6 Gray, 18, and cases cited. The question cannot be better stated than in Mr. Otis’s words. ante, p. 20 — “Can an implied estate tail ever be raised, when the first words give an estate unknown to the laws of the country?” In the case of Banister v. Henderson, post, 131, Mr. Auchmuty says that “the point of charge had weight” in this case. This seems hardly probable, as one was directly on the rents and profits, and the other a charge of wood to be furnished from the land itself. See 24 Pick. 139. And even a personal charge of a sum in gross will not enlarge a clear estate tail, though only arising by implication. 2 Jarman on Wills, (1st Am. ed.) 172. 5 T. R. 535. 2 B. & Ad. 318.
     