THIS was an action of ejectment for an undivided third of four hundred acres of land in North West Fork Hundred, and the only question presented by it, involved the construction of the following devise in the will of Hezekiah Morris, deceased. "Item — My will and desire is that my son Constantine T. Morris should have all my lands, including my mansion, plantation, and tract of land, and all other pieces or parts or tracts of land that I am at this time, or may at my death be possessed of, and also all the remainder of my personal estate after the legacies before named and my just debts are paid." The testator left to survive him as his heirs at law three sons, Cannon Morris, William Morris, Constantine Morris and the issue of one daughter, Sarah Ward, deceased, wife and relict of Joseph Ward, deceased, namely, Harmonia Scott, late Harmonia Ward, wife of Nathan Scott, lessors of the plaintiff, and Hambleton Ward, who died intestate and without issue, after the death of the testator. In the preceding items of his will, the testator had bequeathed a pecuniary legacy to each of these heirs at law by name, except, to the devisee of his real estate, his son Constantine T. Morris, concluding and terminating the item, or clause of bequest to each respectively, with the following words: to have the aforesaid legacy "and no more of my estate." The teatator died and the will was probated in 1824. Constantine T. Morris, his son, entered into possession of the lands in question under the *Page 236 foregoing item and devise to him in the will, and held the same, until they were sold on a judgment recovered against him and execution at sheriff's sale and bought by-Jacob Charles, who afterward sold and conveyed them by deed of bargain and sale in fee to Amos Stayton who was the landlord of the real defendant and tenant in possession. Constantine T. Morris was now dead. that the heirs at law in this case could only be disinherited, or deprived of their legal right of succeeding to the inherintance in fee simple of the land in question, by descent and operation of law, by express terms, or words contained in the will, or by a plain and unequivocal intention appearing upon the face of the instrument when carefully and attentively considered, or by necessary implication of law, giving an estate in fee in the land devised to the devisee. There were no such express words in this will, and the court could not discover any such intention sufficiently apparent and certain in the whole body of it, when taken together, to control the legal signification and construction of the immediate item in question, and which must prevail in the absence of any words of inheritance, or limitation, or other technical and legal expressions necessary to create and confer a title by devise in fee simple. *Page 241
As to the implication of law so much and strongly pressed by the counsel for the defendant in the concluding portion of his argument, it was well settled, and had been so recognized in a still more interesting and intricate case lately very ably and elaborately argued in the Court of Errors and Appeals in the case of Graham's Will,Doe d. Harrington v. Dill, 1 Houst. 410. On that point the general principle of law, is that where there is a devise. of lands without any words of inheritance or limitation, accompanied with a direction in the will, or with a charge on the devisee of the land personally, to pay a sum of money as a debt, or a legacy for instance, to another, the law by implication enlarges the estate in that case devised, and which would otherwise be but a life estate, to an estate and devise in fee simple. But where the legacy, or debt is not so charged, but is charged on the land itself so devised, or upon the estate of the testator generally, or upon his personal estate in particular, the implication does not arise, and the devise is not enlarged from an estate for life of the devisee to an estate in fee. By the terms of the will, however, in this case, each of the legacies bequeathed in it to the other heirs at law of the testator, is directed by him in the respective items in which they are given, to be paid, not by the devisee, as devisee of the land, or by him personally or individually, but out of his estate, by his executor therein after mentioned, and then in the concluding clause of the will, he afterwards bequeaths the remainder or residue of his personal estate to the devisee of the land in question, after his just debts and the foregoing legacies are paid out of it. There was therefore no implication of law on the principle just stated, in this case, to enlarge the devise to a fee; and we have no hesitation in saying to the jury, as it is purely a question of legal and judicial construction of a will, that Constantine T. Morris, the devisee, took but an estate for the term of his life in the lands in question under this devise, and as it was the only question in the case, the verdict should be in favor of the plaintiffs. *Page 242