I fully concur in the opinions delivered, and have seen no reason to change the sentiment I formed at the trial. I incline to think, that the intention of the testator, may be fairly and satisfactorily collected from all the words of the will taken together. Cowp. 238. Though the introductory words “touching such wordly estate,” &c., (Cowp. 356. 5 Term. Rep. 13. 3 Wils. 418. Dallas 226,) will not give a fee, where the expressions of the devise import an estate for life only, yet they will aid the interpretation in a dubious case, and assist in showing the intention of the testator. Cowp. 307. 5 Term. Rep. 14. Dall. 226. Annaly 143. In Denn v. Gaskin, Cowp. 660, the words of Lord Mansfield, are — “ If the testator had any way connected the introductory part “ as to all my wordly estate,” with the devise in question, it might have done; but the introduction is only this — “ as to all such wordly estate, as God has endued me with,” I give to A B, &c. so and so. Suppose he had given one-half his property by this will, the introduction would still have been proper. So if he had given the whole of his landed estate only, without disposing of the residue of his personalty, it would have been equally proper. He does not say in the introduction, that he means to dispose of all his wordly estate, but that with respect to it, he devises so and so.”
In the principal case before us, this objection does not hold ; because the testator here, unequivocally asserts his intentions of devising all his earthly property. The words are — “touching such wordly estate, wherewith it hath pleased Almighty God to bless me in this life, I give, demise (instead of devise) and dispose of the same, in the following manner and formand in the next immediate sentence follows the clause, containing the *384devise in question. In Ibbetson v. Beckwith, Forrest. 157, 160, considerable stress is laid by Lord Talbot, on the introductory words of the will of Thomas Beckwith, which are nearly similar to the present. So in 3 Burr. 1625.
Perhaps, the observation which sometimes occurs, (Doug. 760, 761,) that introductory words like those in the present case, are mere matter of form and not material, and are almost of course, as the language of the scrivener, may go too far, to prove much. Unfortunately, most of the disputes respecting the construction of wills, owe their source to the phraseology of the penners of them.
To carry into effect the manifest intention of the testator, the word or in the devise to his brother Hugh M’Faddin, must be construed into the conjunctive and. There is no defect of authorities on this head. Amongst many other cases, may be cited Pollex. 645. 2 Stra. 1175. 1 Wils. 140. S. C. 3 Atky. 390. 3 Term Rep. 470. The devise then to his brother of 200 acres of the patented land .being in fee simple, the devise to his nephew, Bernard Ferril, of the residuary 100 acres, will refer to and be connected with it.
In Cole v. Rawlinson, 1 Salk. 234, 2 Ld. Raym. 831, Holt’s Rep. 744, 3 Danv. Abr. 201, words sufficient to carry a fee simple in the first part of the devise, were connected with a subsequent part, so as to make that an estate in fee which would otherwise only have been for life. Here a comma is placed between the devises, the words “ and,” “ I leave,” and “other,” conjoining and connecting them together in one sentence. It is true, in the report of the case just cited in 2 Ld. Raym. 832, it is said, the estate would be otherwise, if the words “ I give ” had been repeated, for then they would have made it a new sentence, and disjoined it from the words of limitation. But I cannot see how the interposition of the words “ I leave,” in the will under consideration, can vary the construction on any solid principles. “ Leave ” is a term of relation, and implies a residue. Lord Chief Justice De Grey' observes, in Wright’s lessee v. Wright, 3 Wils. 419, that the devise of the Bell Tavern would not have carried a fee, but by connecting, it with what went before. A devise of testator’s lands at W. and all his interest in the estates of I. C., deceased, to L. A. for life^ and after L. A’s decease to E. S., charged with an annuity to I. T. for life, was held to give a remainder in fee to E. S. 5 Term Rep. 295; and Ld. Kenyon remarked, that he did not 'think it was forcing the expression “ interest ” too much, to apply it as well to W. as to the other estate. Will not the same remark hold here, as to the application of the words of limitation in the *385preceding part of the devise of 200 acres to the brother, to the subsequent devise of the remaining 100 acres of the same tract to his nephew ?
It is a common place observation, that cases in the books upon wills have no great weight, unless they are exactly in the very point. 2 Wils. 324. 3 Wils. 142. Though they may properly be argued from, if they establish general rules of construction, to discover the meaning of a will. 1 Burr. 233.
'Whatever doubts, however, may arise on the mere penning of this will, every difficulty in my idea is removed on the ground chiefly relied on, by my brothers who have preceded me.
The intention of the testator may be discovered by circumstances. Ambl. 182. The circumstances and clauses of a will are to be united and taken together, in order to collect the intention. Per Wilmot, J. And circumstances twisted together will interpret a devise to be in fee, which on the face of it is only for life. 3 Burr. 1625. S. C. 1 Bl. Rep. 535. In the Bell Tavern ease, one argument of the testator’s intention was, that he could not design “ so vain and useless an estate” to the devisee, as an estate for life after an estate tail. 1 Salk. 234. The value of property devised sometimes deserves consideration. Grouldsb. 99.
It is admitted, that the 300 acres of patented land on the waters of Warrior’s Run, whereof the testator died seized, were of inferior quality, wholly woodland and unimproved at the time of his death. What then would bo the effect, if his nephew, Bernard Ferril, should be supposed to take an estate merely for life in one third part thereof ? Why was partition to be made by the executors ? In what manner could an allotment of his separate share conduce to his advantage ? Ho could not cultivate the land, for it was not arable; ho could not cut down timber to enable himself to build a house, or to work the land ; he could do no act to make the land useful or beneficial to himself. Indeed, if with the book cases on wills relative to lands very differently circumstanced from our own, we adopt the English decisions as to waste, (on which I avoid giving any opinion,) the cutting down trees would bo considered as waste in the tenant for life, and operate as a forfeiture of his estate. A devise, from the cases cited by the Chief Justice, implies a bounty. But adopting the construction, that the “ dear nephew ” of the testator was entitled only to a life estate in 100 acres of woodland, it would be a strange instance of benevolence on the part of the uncle, to subject him necessarily to the payment of taxes, on account of his freehold interest! It is needless to add, that *386independent of judicial determinations, it could not be tbe intention of tbe testator to lay a burthen on the devisee, under the pretext of a gift.
I will only add, in the words of Ld. Kenyon in 5 Term Rep. 294, “ for near half a century, it has been the wish of the courts to give effect to the intention of the devisor, as far as they can. It has frequently been observed, that in almost every case, where the words of the devise have been so restrained as to give only an estate for life, the decision has been against what may be supposed to have been the private intention of the devisor. And Lord Mansfield often said, that it appeared to him, that persons in general who made their own wills, thought that the same words were sufficient to pass an estate of inheritance, that are used to convey a mere chattel interest.”
Smith, J.It is admitted, that the land devised was unimproved at the testator’s death, and of inferior quality. Now the law intends that the devise was for the benefit of the devisee, and not for his prejudice. 6 Co. 16. Where the devisee may by possibility sustain a loss, a fee passes without words of inheritance.
In the principal case, the devisee could not cut timber to build a cabin to shelter himself and his family ; he could not clear ground to plant anything for his sustenance on the land, without a certain expense. He might have died after expending his time, labor and money in cultivating the wilderness, before he had received any benefit. Was this then the intention of the testator ? Such intention cannot be collected from the words of this will, nor can it be inferred, consistently with the rule of law, that a benefit is intended and imported in every devise. The devisee was also liable to' the payment of taxes. Eor although the land might be sold for the taxes, yet it seems to me, that the owner is also liable to an action for the taxes assessed on his land. Therefore, applying the words of the testator, to the subject matter of this devise, according to Cowp. 238, it is clear, that we are bound by the principles of law, which I.have laid down, as well as bj the justice and equity of the case, to declare, that Bernard Eerril took a fee simple in the 100 acres of woodland unimproved, devised to him by his uncle John M’Eaddin.
I give no opinion, whether or not the words of this devise, had they been applied to cultivated land, which might have yielded benefit, without any expense to the devisee, would have given him an estate in fee, or for life. Nor will I say, that if the devisee was entitled to an estate for life only, in these one hundred acres of woodland, it would be waste, by which such estate would be forfeited, in such tenant for life to cut down timber for his necessary buildings, and render the land fit for *387agriculture; so that such cutting of timber did not injure the inheritance, and aa as conducted in such a manner as would be necessary to be done by an owner of the inheritance, for shelter and sustenance.
Judgment for the defendant.