The first question in this case is, what, estate passed to William Willisj by the will of his father Henry WillisP
The testator having declared his intention to dispose of the whole of his estate in the beginning of his will, devised to his son William in the words following. (Here the Chief Justice read the devise to William.) After this, follow several devises and bequests, among which is one by which part of the personal estate is given to the said William. A legacy of 40/. is then given to the testator’s daughter Mary, to be paid by the said William by instalments. The remainder of the land .is then given to his son Richard in the follo wing terms. (The Chief Justice then read the devise to Richard.)
If the devise to William is abstracted from the rest of the will, it must be considered as an estate-tail by direct and necessary implication. There are no words of limitation annexed to the gift to him, nor is it expressed to be for his life, nor is there any express devise to his issue; but the estate is not to go over to Richard, unless William should die without issue. Here is a plain intent to provide for the issue, which can no otherwise be effected than by vesting an estate-tail in their father. But there is not the least intimation of an intent to give a fee-simple. Failing issue of William, the land is to go to Richard.
It is contended however on the part of the defendants, that by considering this devise to William in connexion *464with other parts of the will, it will appear that a fee- " simple was intended for him, with an executory devis'é to Richard, to take effect on the contingency of William’s dying without issue, in the life of Richard. The parts relied on, to shew this intent to give a fee-simple, are the introductory words of the will, expressing a design to dispose of the whole estate, and the legacy of 40/. to be paid by William. These introductory words have been more or less regarded by different judges. I will not say, that they are not to carry some weight in doubtful cases; but I am not disposed to allow them much consequence, where it is pretty clear from the other parts of the will, that an estate less than a fee-simple is intended; because, I believe, that in most cases the testator has a general intent to dispose of his whole estate, whether he says so in the beginning of his will or not. If however this intent of disposing of the whole estate is to have any effect, it will be best applied to the devise over to Richard, in case of William’s death without issue; for in such case, it is to be supposed that the tfestator intended to give a fee. This supposition is strengthened by adverting to the devise of the remainder of his plantation to Richard, and if he should chance to die without issue, then to fall into the possession of William, by them freely to be possessed and enjoyed. These expressions, “ freely to be possessed and “ enjoyed,” shew a strong intent to give a fee, and have been adjudged sufficient to convey it. It may be concluded then, that in the devise over, in both instances, the testator meant to give a fee. As to the payment of 40/., if it had been annexed to the devise to William, and if there had been no expression in the devise to William, shewing an intent to give an estate-tail, then indeed, under the authority of adjudged cases which have been cited, and from the reason of the thing, independent of authorities, William would bv virtue of that payment have taken an estate in fee-simple; because it is presumed, that by every devise it is intended to confer a benefit on the devisee; and it might happen that the payment of a sum of money might be an injury instead of a benefit, if the devisee took an estate less than a fee. But although this argument is satisfactory, where a devise is made in general terms without expressing any estate, yet it has *465no weight in cases where the estate of the devisee is plainly indicated; because the devisee has no right to claim a greater estate than the testator intended for him, and if he dislikes the conditions, he may refuse the devise. Besides, the payment of 40/. is not annexed to the devise of land to William; but between the devise of the land and the direction to pay the money, a bequest of personal property to William intervenes, ■so that we cannot say that the testator ordered William to pay the money in consideration of the devise of the land. Much stress was laid by the defendants’ counsel on these expressions — “ the above lands must fall into the possession “ of his brother Richard.” From hence they inferred, that the estate given to Richard was to take effect on a contingency to happen during his life, and not after an indefinite failure of issue of William. Without deciding on the accuracy of this construction, it is sufficient to remark, that supposing it to be just, it by no means follows that William was to take an estate in fee. It is quite consistent that William should take in tail, with a contingent remainder to Richard, to take effect on William’s dying without issue in the life of Richard. Considering this will in all its parts, I am of opinion that William took an estaté-taií in the land devise'd to him.
2. The next question is, has this estate-tail been barred? The defendants say it has, although no common recovery was suffered; because Henry Willis,■ whose will is dated in the year 1764, was not seized of a legal estate, but only an equitable one, the legal estate not having been at that time granted by the proprietaries of Pennsylvania. Cases were cited to prove that the statute de donis does not extend to equitable estates; and that in such cases the issue are barred by the deed of their ancestor without common recovery. I think it unnecessary to consider those cases, because in this state a warrant and survey, attended with the payment of the purchase-money, (which was the case here) is to be considered in the same light as the legal estate in England. We have no Court of Chancery to compel a specific performance of contracts, so that we have been in the habit oí considering that as done, which Chancery would compel to be done. It has always been supposed that estates of this kind are not to *466be distinguished as to the mode of conveying them, from estates strictly legal. This was the opinion of the learned and respectable judge, before whom this cause was tried in the Circuit Court, and I fully agree with him.
3. I will now consider the third point in this cause. It was strongly urged in the Circuit Court, that supposing the estate-tail not to have been barred, the plaintiff ought not to recover, because he had assented to the sale made by his father, and had given no notice of his title to the defendants, who are purchasers for a valuable consideration without notice. On the other hand, it was contended on the part of the plaintiff, that the defendants could not be considered as purchasers without notice, because they claim under a deed, which recites the patent to William Willis, and the patent refers to the will of old Henry Willis, by which the estate-tail is created. The learned judge who tried the cause was of opinion, that the purchasers were not bound to look further back than the patent, and no doubt this opinion must have had great weight with the jury. This is a principle of very great importance, considering the vast mass of property which is held without patent in this commonwealth. It may have very extensive and alarming consequences, if every purchaser from a patentee is to be considered as having no notice, and not bound to take notice of any thing prior to the patent. In cases like the present, where the prior title is referred to in the patent, there is no reason why the purchaser should not take notice of it. The will of Henry Willis was recorded,, and it was the fault of the purchasers not to examine it. Why should the son of William Willis be barred of his estate, because the purchasers under his father neglected to look into a will to which their title deeds referred them? The cases cited for the plaintiff prove, and indeed the defendants’ counsel do not deny, that by the principles of the common law, the purchaser in such cases is bound to take notice; but they say that those principles ought not to be extended here, because in this country the business of conveyancing is transacted by ignorant people. I cannot give my assent to this argument. If admitted in this case, it will be urged in every other, till at length all principles will be *467prostrated under the plea of ignorance. It appears to me, that on this point the jury were misdirected in point of law. *
4. The last question is, whether under these circumstances a new trial should be granted? Against a new trial it is urged, that this is a hard case, in which there have been two verdicts for the defendants. I perceive that it is a hard case, and I am extremely sorry for it. It is always hard on a man, who has the misfortune to purchase a bad title. But I must not suffer my feelings for the defendants to carry me so far as to do injustice to the plaintiff. If the cause had gone to the jury, in the manner which I conceive it ought by law to have been submitted to them, I should have been against a new trial. It must be a very extraordinary case indeed, in which I could be induced to give my opinion for a new trial, after two verdicts on matters of fact. But that is not the present case. I can have no assurance that the jury would have found the same verdict, under a different direction as to the point of law which has been mentioned. I must therefore, with reluctance, give my opinion, that this court cannot without injustice refuse the plaintiff a new trial.
Yeates J. concurred with the chief justice upon all the points. Brackeniudge J. was of the same opinion.New trial granted.