Beall's Lessee v. Holmes

Buchanan,, Ch. J.

at this term delivered the opinion of the court. It appears that on the 21st of November 1T23, James Beall made his will, in which, immediately after an introductory clause in these words, “as touching my worldly estate wherewith it has pleased God to bless me in this life, I give,' devise and dispose, of, in the following form and manner, via.” he proceeds, ‘ ‘•Imprimis, I give and bequeath to my eldest son John Beall, all that tract of land called Rover’s Content, and another tract of land called Fiffe, and all that part of a tract of land called Good Luck, which lies on the east side of the Cabin Branch; and another tract of land called Dnimaldree. Item. I give and bequeath to my son .Nathan Beall, all that tract of land, called Easy Purchase, and a, tract of land thereunto adjoining, called Addition to Easy Purchase. Item. I give mid bequeath to my son James Beall, that part of a tract of land called Good Luck, which lies on the west side of Cabin Branch, and a tract of land called Lonehead. Item. I give and bequeath to my sons Robert Beall and Joseph Beall, all that tract of land called Lay Hill, it) be equally divided betwixt them. Item. I give and bequeath to my son Zcpkaniah Beall, part of a tract of land called MIL ion’s Park, and another tract of land called Cooper. Item. I give and bequeath to my daughter Sarah Beidl, part of a tract of land called Beall’s Manor.” lie gives her also ■:fi30 sterling, and bequeaths ¡filo sterling a year to a minister, and then goes on — ‘‘Item. I give and bequeath to my loving wife Sarah Beall, three negroes, viz. Logon, Ilocketfy and Peale, and my now dwelling plantation, during her natural life,” and adds a residuary clause in these words: ‘‘Item. I give and bequeath all the rest of my personal estate, viz. goods, chattels and negroes, to be equally divided amongst my children.” That James Bed’ll, the testator, died seized in fee simple of all the lands mentioned in the will, and that John Beall, one of the devisees, (under whom the defendant claims,) was his heir at law. And the question is, whether Robert Beall and Joseph Beall took an estate for life or in fee in the tract of land called Lay Ililll

It is an established tule of law, 5‘that express words of limitation, or words tantamount, are necessary in a devise to pass an estate of inheritance.” But in the consiruction of a will, the intention expressed by the testator, to be collected from the whole instrument, by comparing and considering the different parts together, if it be consistent with the rules of law, in relation to the nature and operation of the estate devised, must prevail, giving effect, if possible, in the exposition, to all the words of the will: and being supposed to be made when the testator is in extremis, and mops concilii, it is not necessary that technical terms, or any particular form of words, should be used to convey his meaning. Upon this principle it lias long been settled, that the word “heirs” need not be used in a will to create an estate in fee, but that any other words, which sufficiently show the intention of the testatoi’, to give to the devisee the whole of his interest in the thing devised, will have the same effect; as a devise to one in fee simple, or for ever, or toa mail and his successors; or his blood, or to a person geBerally to give and sel!, &c. which he could not do without having a fee in the land.

An “estate in land,” is defiried to be “Such interest as the tenant hath therein.” 3 Blk. Com. 103. lienee it is settled by an uninterrupted series of adjudications from an early period of juridical history down to the present day, that the word “estate,” in ¿ devise, is equivalent tó words of limitation, and sufficient tóVpass the fee simple; when not restricted by other words, nor appearing to be used by the téótator, as descriptive only, of the local situation of the land devised; and so (upon thé same principle,) will any other words having the same import. But though the ^Intention of the téstator is to goverii in the (construction of 'a will* yet that intention must, in thelánguáge of Mr. Justice Wilmot, in Baddelcy vs. Leppingwell, 3 Burr. 1541, be collected “ex visceribus testamenti;” it must be gathered; notfrorn what behas omittedto say, but from the words which ho has used, and when so ascertained, and not otherwise, shall prevail, if there bé also found in the Viscera apt words to effectuate it. Upon this same principle of giving effect to the intention of a testator, manifested by the expressions contained in his will, it is now well settled; that a general devise of land, charged with a gross sum, or with debts and legacies, to be paid at all events by the devisee, and not out of the rents and profits, will pass the fee, on the ground, that the devise being intended for the benefit of the devisee; the testator must have meant to give him such an estate as he could not lose by; and therefore, as, if he should chancó to die before he received from the land what he had paid, he would be. a loser, it was clearly the intention of the testator to give him mdre than an estate for life, which, there being no words of restriction, could only be- á fee simple. So also will a general devisó of land, with a charge upon tile devisee of the payment off a perpetual annual sum, or of an annuity for the life of the annuitant, &c. In the first case, because the charge being perpetual, the testator must have intended the fund to' be perpetual also, and consequently meant to give the fee; and in the lattér, because the annuity being of uncertain duration, requires an estate in fee to siipport it; and every devise being intended for the benefit of the devisee, the testator must in sucli a case necessarily mean to give him the inheritance. Upon the same ground of intention, it has Neen. held, that If there be a devise of land to one general» ly, with remainder over upon a limited contingency, as upon his dying under the age of twenty-one years, the first devisee will take an estate in fee simple, ' upon the principle, as said, that the devise over being limited only upon the contingency of his dying during his minority, the necessary implication is, that be intended to give him an absolute ’estate in fee, if he should attain his full age. But an heir at law can only .be disinherited by express words or necessary implication, his title being founded on the law, fwhich is certain,) and cannot'therefore be defeated by conjecture. Hence it is, that a devise of land, without words of limitation, or any other words being added, from which an intention to give an estate of inheritance can be clearly collected, passes only a life estate to the devisee, such a general devise importing in lato an estate for life. Upon some one or more of these principles, the different cases in the books will be found to have turned, where the question has been whether a devisee took an estate of inheritance, or for life only. And in construing wills, though there are scarcely two in which the same expressions are used, yet regard should always be bad to general rules of construction, established by adjudged cases.

In the case before us, it has been contended with much ¡seal, and great ingenuity, that Robert Beall and Joseph Beall took an estate in fee simple, under the devise to them, of the tract of land called Lay Hill, upon the principle, that the intention of the testator, to be collected from the whole of the will taken together-, must prevail; and the main argument is founded upon the introductory clause of the will, “as touching my worldly estate, wherewith it ha? pleased God to bless mo in this life, I give, devise and dispose of, in the following form and manner, viz.” the devise to Robert and Joseph Beall, being a naked general devise of all that tract of land called Lay Hill, to be equally divided between them, without any words of limitation or any other words added — -on the ground that the introductory clause manifests an intention in the testator to have disposed of the whole of his estate; but it will be seen, on examination, that the argument drawn from the introductory clause alone, is not sustained by the English authorities. Where there are words in a devise^ which would be sions iii the residuary clause of a will; such as ^testamentary estate;” &c.' which aré ápplicable either to real of personal property; and áre not restricted in the devise to the personalty, but may include both, and it would be’ doubtful on the residuary clause alone in what sense they were Used by the testator; the introductory clause, if there be' óne, showing that he meant to dispose of the whole of his property, m'áy be called in aid of the interpretation, and they s'hall be taken in the largest sense, so ás to include1 the real property. Where the introductory clause of & will shows- that the testator intended to dispose of the whole of his estate, the subsequerit words will,- if possible; be so construed as to' pass the fee simple; in order to effectuate his intention riot to die intestate as to any of his property; but they must be such words as would of theiriselyes' be in law sufficient to car.ry á fee,1 if Used by the testator with that íntént, the office of the introductory ¿lause being óriíy toshow the intent with which they #ere used';’ ¿"rid if fio words can bé found, out of the introductory clause,which the law -considers sufficient to pass the fee, when? Used by á testator for that purpose, the rule of law, “that express words- of limitation^ or words tantamount, are ne->' cessary to pass an estate of inheritance,” must prevail, and the devisee can Only take an estate for life,- no matter-what conjecture or private' opinion maybe, which is no ground for a judicial determination;1 for the heir at law must inherit, unless the estate be given to somebody else by express words or necessary implication. A general devise of land, jvithowt words of limitation, or any other words being, ad-sufficient to carry a fee, if it was the intention of the tés» tator to give one, biit which intent does not clearly appear from the words-themselves, then if there be an iritroductoiy clause, it may be resorted to; to explain their meaning; rind if it manifests an intention in the testator, at the timé of making his will, to dispose of the whole of his estate, the words iii the subsequent operating clause; which otherwise would be of doubtful meaning; and consequently not sufficient to carry a fee, shall be takén in thatsensé which kccords with his intention before expressed in the introductory clause, and will pasi the inheritance; and thus effect will be given to all the parts of the wilt; So far have the English tribunals gone, and no further; For instance, (and it is' put only as á single example,) if there be expresded, imports in law an estate for life in the devisee;, there, is nothing on which a judicial doubt can arise, but a strict, and absolute legal certainty. In such a case, there being nothing open for construction and requiring explanation, it matters not wbgt was the intention of the. testator, having omitted to use apt words to effectuate that intention; and an introductory clause, showing that he had the whole of his estate in view when he made. his. will,-being only a -manifestation of what he intended to do, and not the operating clause, cannot of itself be sufficient tQ control a set-tied rule of law, and pass the fee simple. ■

In the case of Cole vs. Rawkinson, 1 Salk. 234, (1st Ann,) the words of the devise were, “I give, ratify, and. confirm, all my estate, right, title and interest, which I now. have, or may have in my power ‘to dispose of, after, my. death, in whatever I hold by lease from Sir John Freeman, and also the house called the Bell Tavern, to John BiP lingtsley,,~Agid it wag held by three judges, against Ilolt, tdi. J, that being but one sentence, the preposition “in” related as well to the “ Bell Tavern” as to the leasehold estate, and that the fee simple in th&PBell Tavern” passed to the devisee by force of the words “estate, right, title, and interest.” Holt did not deny the sufficiency of the words “estate,” &c. to pass a fee in a devise, but thought the preposition “in” related only to the leasehold property. In Bridgewater vs. Bolton, 1 Salk. 236. (2d Ann,) a fee was held to pass by the word “estate;” and per Holt, the word “estate” is genus genet alls simum, and includes all things real and personal.

These cases are adverted to, not because they are supposed to have any immediate bearing upon that under consideration, but because they, and others which it is unnecessary to cite, serve to show how far ba«;k. the word “estate” ip a will was held to be sufficient to pass a fee; and will thus assist in the understanding of the grounds or; \vhieh later cases have been decided.

In Tanner vs. Wise, 3 P. Wms. 294, there are.the introductory words, “as to all my temporal estate with which it has pleased God to bless me, I dispose of the same as follows;” and then, after giving some pecuniary legacies, &e. follows tlixs residuary clause, “all the rest of my estate, goods and chattels whatsoever, real and personal, I give to my beloved wife, whóm I make my executrix;” and it was decreed by Lord Talbot, that the devisee took ad, estate in fee simple in all the testator’s real estate, on the, ground that the. words ‘.‘temporal estate, ” in the introductory clause,, signified the same as ‘.‘worldly estate,” or all that- a man has in the world, and consequently took in both real and-personal estate, and that the word rest being a re-, lative term, it meant-the. rest of. his ‘.‘temporal estate.”Thus resorting to the introductory clause to ascertain the sense in which the word “estate”'was used by the testator, in the residuary devise; and as-it appeared.that he intend- • ed to dispose of. all he had, the word “estate”'was taken, in its largest sense, so as to cover, the real as well, as the, personal- estate; the, question being not as to the legal effect of the. word ‘.‘estate,” but only whether the testator meant, to apply it to his real property, leaving it (if he did. so intend,) to its operation, in law. In Ibbetson vs. Beckwith, Cases temp. Talb. 157, there,'is. this introductory clause, “as touching my worldly estate, wherewith it has pleased God to bless me, I. give, devise, and. dispose of the; same, in the manner following;’.’ and- then, after other devises, follows this: “Item. I give unto my loving mother, all. my estate at Norwith Close, North Closes, and. my farm held at Boomer, with all my goods and chattels as they now stand, for her natural life, and to my nephew Thomas Dadson, after her death, if .he will but change his name to Beckwith,’? &e. The only question raised was on the effect of. the word estate, which was held to pass the fee ta Thomas Dadson.

The principle of that case is, that all the parts of a will ought to be taken together, and that where it appears from the introductory clause, that the testator intended to dispose of all he had, (as it did, there,) if there are words in a subsequent devise which may carry a fee, they shall be considered as. used by the testator, with that intent, and will be held to pass the inheritance. With respect to the words “and my farm held at Boomer,”..no question appear^ to have been raised, upon them, nor does it appear from the qase, as reported, that that farm formed.any part of the matter in dispute; no argument therefore can be drawn, from the use of tiróse, words in that will.

In Grayson vs. Atkinson, 1 Wilson’s Rep. 333, the introductory clause of the will is the same as in Tanner vs. Wise, 3 P. Wms. 294, ‘as ta all my temporal estate wh.erm> with it hath pleased God to bless me, I give and devise the same as follows;” and after several pecuniary legacies being given, with directions for “selling all or any part of the real and personal estate for the payment of debts and legacies,” comes the residuary clause, in these words, “as to all the rest of my goods and chattels, real and personal, snovr.ablc. and immoveable, as houses, gardens, tenements, &c. I give to the said A.” Lord Ilardu-iclte decided, that A took a fee; that the testator, by the words “as houses, gardens, tenements,” &c. explained what he meant by tin? words “goods an^l chattels, real and personal, moveable and immoveable,” wlii.eli he said, without such explanation, would not have carried a¡ fee; that from his directing all., or any part of his estate, to be sold for the payment of debts and legacies, it appeared ho had it in view to dispose of the whole.; that the words tfes to all the rest,” plainly related to something mentioned before, that he was about to dispose of, which was all his temporal estate mentioned in the introductory clause, and which was sufficient in law to pass a fee, when the testator had one.

The ground of the decision, therefore, was, that the words of the residuary clause meant all the rest of the testator’s temporal estate; and the Lord Chancellor, by the expression, to be found in his argument “for intention at first is one. filing, and the execution of that intention is another,” negatives the idea of an introductory clause, showing the intention, of a testator to dispose of ail bebas, being alone sufficient to pass a fee, if there are no words In the devising clause that may in law carry it.

In Frogmorton vs. Holyday, 3 Burrows, 1618, after the introductory clause, .“as for all my wordly affairs and estate, &c. 1 do dispose thereof in manner following,” the testatrix devised ail estate in fee to her eldest son, and then devised to her sou John “all that house and garden in the tenure-and occupation of Edivard Gibson,” charged with an annuity payable out of the rents and profits, with a limitation over to her three daughters, if John should chance to die in his, minority.

In construing this devise, the court took into consideration every part of the will, including the introductory clause, in order to ascertain «hat the testatrix meant by the devise over, and decided, that John took an estate in fee simple, not by force of the introductory clause, but by reason of the limitation oyer, on the ground, that the i.C troduptory clause, and the other parts of the will taken, together, showing clearly, that the testatrix did not intend to die intestate as to any part of her estate; the limitation over only upon the contingency of his dying during his minority, proved that she meant the heirs at law should not have it, arjd furnished the necessary implication, that she, intended to, give to John, the devisee, an absolute estate ii\ fee, if he should attain his full age, Jt was th.e devise over, therefore, that worked the .effect of giying the inheritance to the devisee, and not the introductory clause! and if there bad been, no such devise over, the rule of law must have prevailed, for it yiis upon that, that the decision turned. The case of Hogan vs. Jackson, Cowper, 299, turned upon-the meaning of the word ‘.“effects” in the residuary clause of the will, in which the testator gave to his mother “all the remainder and residue of all the effects, both real and personal, which he should die possessed of,” and it was held by the court, that “effects” was' synonimous to property, that “real effects” meant real property, and that real and personal effects were synonimous to substance, which included every tiling that' could be turned, into money, and consequently, that under the residuary clause, the devisee took a fee in all the fee simple, estates^ of the testator. The introductory words, with all. the, other parts of the will, were considered by the court, for the purpose of ascertaining what the testator meant by the word “effects,” that is, to what description of property-ha meant to apply it, whether to real or personal, or to both, 'but no farther. And Lord Mansfield said, “that introductory words could not vary the construction of a devise, so as to enlarge the estate of a devisee, unless there were words in the devise itself sufficient to carry the degree of Interest contended fort-

In Loveacres vs. Blight, Cowper, 352, where the devise, on which the question arose, was in these words, “Item, I giye unto, John Mudge and Bobert Mudge, my two sons, &c. all and singular my lands and messuages, by them freely to be possessed and enjoyed alike,” the court reasoned from the introductory clause, and other parts of the will, to show what was the intention of the testator; but after stating “that thougli the introduction of a will, declaring that a man means to make a disposition of all his ivisrldiy estate, is a strong circumstance, connected with Clber words, to explain the testator’s intention of enlarging a particular estate, or of passing a fee where he has úísed no words of limitation, it will not do alone,” decided; that the devisees took an estate in fee, oil the ground; that by another clause the estate was charged with, a life annuity to be paid by them; “on the principle, that where any thing is directed to be doné, which, strictly speaking, an instate for life may not be sufficient to answer, the court will imply a fee. ”

The case of Baker vs. Stocker, 5 Term Rep. 13, was decided upon the same principle. After the words, “as touching all ditch temporal estate of lands, goods and chattels, as God hath endowed me with, I give and bequeath thereof as fbllowclh,” the testator devised to liis grand - son, John Baker; his dwelling-house, &c. paying yearly and every year, out of the said dwelling-house, the sum of 15s. unto his grand-daughter A. Ilalsiqff —aitil the court, alter declaring that the introductory words would not of themselves have carried the fee, ruled, that as the annuity was intended to continue during the life of the annuitant, {he devisee must of necessity take an estate in fee.

In Smith vs. Coffin, 2 Hen. Blk. 444; the question arose ápon the meaning of the word “testamentary” in the sweeping residuary clause of the will, in which the testator gave to his wife “all the rest and residue of his goods; chattels, rights and credits, personal and testamentary estate whatsoever, wheresoever, and in whose hands soever, not before particularly given and bequeathed” — It was a question entirely upon the construction of words; and in every such case the introductory clause may well be resorted te for assistance in the interpretation, not to control or vary their import in relation to the subject matter to which they are in fact applied, but to find out. if possible, to what description'of property the testator intended to apply them; and if they áre not. exclusively applicable to personal property; but may include real property, and it appears from the introduction that the testator intended to dispose of bis whole estate, it is evidence that he used them in their largest and most comprehensive sense, atrd they will be so taken, and be held to pass a fee, if they are sufficient in law to carry it; but not otherwise. And upon this principle the court proceeded in that case — they held, that the wbrd “testamentary” was as well applicable to real as to personal property, and as the introductory clause showed that the testator intended to dispose of all he had, they concluded that he meant to apply it to both; and being coupled with the word “estate,” which; (when unrestricted by other Words,) is per sc sufficient to pass a fee; they ruled that the devisee took a fee simple in the premises in question under the résiduary clause. The wills in thé following cases; referred to in argument; have no introductory words to assist in the interpretation: In Baddeley vs. Leppingwell, 3 Burrows, 1533, it was decided, that the devisee took a fee simple-under a general devise of lands to her, “she paying thereout forty shillings a year to her sister.” The court took a view of the whole will; and drew thé conclusion, from its different provisions, that the testator intended to dispose of the inheritance in the premises in question; but founded their judgment not on that general intent, but expressly on the ground that there was an annuity charged upon the property, for the life of the annuitant, which required a fee to support it; and that therefore the testator must have intended to give one;

In Wigfall vs. Brydon, 3 Burrows, 1895, the testatpr devised a house and stable, worth only one hundred pounds, first to her hushand for life; then to her brother for life, and then generally to seven children, with directions if her brother should die before her husband, that they should be divided amongst the children. The plaintiff, who claimed as heir at law, was nonsuited, and the court said there was enough upon the whole will to , show -that the testatrix intended the value of the house and stable should be divided among the seven children, And in Denn vs. Gaskin, Cowper, 659, Lord Mansfield, who decided the case of Wigfall vs. Brydon, says, “the ground the court went upon in that case was, that from the nature of the estate, and the ■ words used by the testatrix, they amounted in fact to a direction to sell the estate and divide the produce of if,”

In Goodright vs. Allin, 9 W. Blk. 1041, the devisee was held to take an estate in fee on the two grounds expressly taken by the court — 1st. That there was an annuity charged upon the property for the life of the annuitant, to be paid by the devisee, which required a fee to support it; and 2d. That the payment, of the debts and le•g&cies were charged on the real, as well as the personal estate. The substance of the case of Tofield vs. Tofield, 11 East, 246, is, that where a testator calls his real property, personal property, and devises it by that description, it. may pass:

In Shell vs. Pattison, 16 East, 221, the devise Was of all the remainder of the testator’s stocks, “with his free-bold property,” and the question turned upon the effect of the word “property” — the court held that it was synonymous to effects, which was in law sufficient in a will to pass a fee; that it was clearly used by the testator not as 'descriptive only of the thing, but of the quantum of his interest in it, and therefore decided that the fee passed to *the devisee.

The principle contended for by the counsel for the appellant is, that whenever, from the introductory clause of b will, or any other parts of it-, the mind Can be satisfied that the testator had in view a disposition of the whole of bis property, the lee simple shall pass, under a general devise of land, without any words of limitation, or any other Words being added, which, when applied to real property, are in law sufficient to carry a fee. Bat ftot one of these cases goes the length of sustaining any such principle; neither of the will's, in the five last cases, had any prefatory Words showing the object of the testator. The first, Baddely vs. Leppingwell, was decided on the ground that there was an annuity charged upon the estate for the life of the •annuitants. Wigfall vs. Byrdon, on the ground that the devise amounted, in fact, to a direction to sell the property ‘and divide the proceeds. Goodright vs. Mien, on the ground that there was an annuity for the life of the annuitant charged upon the property, to be paid by the devisee, hnd also that it was charged in the hands of the devisee With the payment of the debts and legacies. Tofield vs. Tofield, on the ground that the testator manifestly intended, by the words he used, to include his real property; and Shell vs. Pattison, on the ground that the word “property”' is equivalent to the word “estate,” and when applied to real estate sufficient per se to pass the fee. In the other: class of cases, all the wills had introductory words, showing that the respective testators had in view the whole of their property, but in neither of them were introductory Words held to be sufficient to give to a general devise,, without words of limitation, the effect to pass an estate lb, fee. But they were all decided on very different princU pies. Tanner vs. Wise, Ibbetson vs. Beckwith, and Grayson vs. Atkinson, on the ground that the word “estate,” when.applied to real property in a devise, and not used as a description only of the specific land* but denoting the quantum of interest or property that the testator has in, the land devised, is of itself sufficient to carry a fee. Frogmorton vs. Holyday, on the ground that a devise to one generally, with á limitation over on the contingency only of his dying during his minority, gives a fee to the first devisee. Hogan vs. Jackson, on the ground that the word “effects” being synonymous to substance or property, when applied in a devise to real estate, is of itself sufficient to pass a fee. Loveacres vs. Blight, and Baker vs. Stocker, on the ground that a general devise of land charged with, an annuity for the life of the annuitant,' passes the fee. And Smith vs. Coffin, on the ground that the words “testamentary estáte” being applicable ás well to real as to personal ¿state* áre¿ when applied in a devise to real property, sufficient to Carry the fee¿ In Tanner vs. Wise, Ibbetson vs. Beckwith, Grayson vs. Atkinson, Hogan vs. Jackson, and Smith vs. Coffin, the prefatory words were taken into consideration, hot because of any effect they were Supposed to have in passing, the fee, but as auxiliaries only, helping to show to what the respective testators intended to apply the operative words, in the devising clauses. And in Frogmorton vs. Holyday, Loveacres vs. Blight, and Baker vs. Stocker, only to strengthen the necessary implication arising in the first, from the limitation over, and in the two last, from the charge of á life annuity.

In Frogmorton vs. Wright & Kershaw, 3 Wilson’s Rep. 414, and 2 W. Blk. 889, (the same case*) the prefatory words of the will were, “as touching the disposition of my temporal estate, as it hath pleased God Almighty to bestow üpon me, Í give and dispose thereof, as followeth:” and the' particular devise upon which the question arose was in these words,” Item, I give unto William Wright* my nephew, two houses, at Seaeroft, with a croft and appurtenances belonging to them, now in the occupation of John Carter and Elizabeth Thornton. ” There was also a bequest of five shillings a year to the testator’s brother ami heir' at law. The judgment of the court was, that WilHam Wright, the devisee, took only an estate of life; and the chief justice, Be Grey, in delivering the opinion, said 4‘it may seem probable, that the testator’s intention was, that his nephew William should have a fee, but it is a clean rule that there must be express words, or a necessary implication to disinherit the heir at law; neither of these appear in the present case, and therefore the legal operation of the words of the will must govern.”

In Callow & others vs. Bolton, 2 W. Blk. 1045, the testator gave all his real and personal estate to his wife for life, and then at or immediately after her death, devised to his, son Paul, generally, “all that his land lying and being in Dudley.and gave to his grandchildren, who were his heirs at law, live shillings each. The question was, whether Paul took an estate for life or in fee. And the court said, inhere was nothing in the case to exempt it from the gene» ral rule of law, which declares, that a gift to a man of lands, without expressing for what estate, vests only an estate for life;” and therefore, decided, that lie took only a life estate. This case is cited in Right vs. Sidebotham, Doug. Rep. 759, and there the introductory words are stated to have been “as touching such worldly estate, wherewith it hath pleased God Almighty to bless me with,”

In Denn vs. Gaskin, 2 Cowp. 657, immediately after the Words, “as to all such worldly estate as, God has enduetf me with, I give and bequeath as follows,” the testator devised “all that his freehold, messuage, and- tenement, lying in Gaitsgill, in the parish of Dalston, together with all houses, barns, orchards, edifices, and appurtenances, whatsoever, reputed as part thereof, or belonging to the same, unto Matthew Robinson, George Robinson and Thomas Robinson, equally to them, my sister’s sons.” He then bequeathed ten shillings to his heir at law; and in the residuary clause bequeathed “all the rest of his goods, chattels, and personal estate whatsoever,” without mentioning any real property, to Matthew, George, and Thomas Robinson« Lord Mamjield, and the other judges, declared their belief, and argued from the disinheriting legacy to the heir af law, and the bequest in the residuary clause of all the testator’s personal property, without any notice being taken of any real estate, to show that he Intended to give to Ato'-' thew, George, and Thomas Robinson, a fee simple in the premises devised to them; but said there were so worth M. be found in the will to take the. case out ofthe.vule of-law, and decided that they took only an estate for:. life. Aston, Justice, cited the case of Wright vs. Russel, in which, after the. preamble, “as touching the disposition of all such Worldly estate, p.s it hath pleased God to bestow upon me, I give, &c,” the testator devisedg house to his grandson Henry, and. after his decease, tp. his two s.ons Thomas anti William, and then, gave qne. slbbing to the husband of the, Ji.eir at law, and Thomas and - William were held tp take an estate for life; and Lord Mansfield added, that though the, intention is ever so, apparent, the heir at law must of course, ipheidt, unless the estate is given to somebody else. This, is a. strong case, and'cited and much relied upon as authority in some of the subsequent cases.

In Right vs. didebotham, Douglas, 759, the testator, aftfer the. words, “for those worldly goods and chattels, wherewith it has pleased Almighty God tp bless me, I give, and dispose in manner;, following,” gavp to his sister and heir at law one shilling; and after some other bequests, devised certain lands to his. wife,, her Ipeirs and assigns, tor, ever, and. added, and “I giye and bequeath to, my loving wife aforesaid, allm/y lanfis,tenements' andhouses, lying in, the .parish, &c., to wit, the house I now live in, with the, yard, gat den and oiithouses, and all other appurtenants thereunto belonging.% The question was, what estate di<i, the devispe take in the. last mentioned premises? And it was adjudged, that she took only an estate'for life. Lord Mansfield declaring he had no doubt that the testator’s intention was to disinherit the heir at law, but that the rule of law was established and certain.

In Child & Wife vs. Wright & others, 8 Term Rep. 64, it appears that the testator had three grandsons, James Wright, John Wright, and James tamper. After the prerfatory words, “as touching such worldly and personal estate wherewith it has pleased God to blessme in this life, I give, devise, and dispose of the. same, in the following manner,” he devised all hi? estate, real and personal, to. ,hii wife, for life, and after, her death, devised to James Wright all his “lands,” freehold, copyhold apd leasehold, in the county, of Esse®. He also devised'to James, all his'' “estate,” freehold and copyhold, lying in Huntingdonshire.,^ To John he dpvised all his “estate,” land, &c. called the, €pal .Vard,” &c, and to James Camper, who was foe heir at law, be devised the house he lived in, together with other houses and lands by name.

The devise to the heir at law was general, without any words of limitation} that to John Wright had the word '‘estate;’’ the first devise to James Wright was general oí" his lands in Essex, without any words of limitation, and the second was of his “estate” in Huntingdonshire. The ipnly difference between the two devises to James Wright was, that in one the word “lands”- was used, and in the ipther the word “estate,” and the question was, whether ha took an estate in remainder, after the death of the widow, for life or in fee, hi the lands, m Essex, under the first devise? Indulging private conjecture, it vvould seem that the testator meant in each devise to give the same quantum pf interest, without imagining any difference in the legal effect of the words “land” and “estate,” but used tliemas synonymous terms, and that the devisee, ought to take accordingly; and from the introductory clause, it v?a§ manifest that the testator intended to dispose of the whole of his estate. But the word “land” denoting only the kind of property devised, and not the quanto,ni of the testator’s interest in it, and therefore not being sufficient in law to pass, a fee, the court, bound by the established rule, decided that the devisee took only an estate for life.

In Doe vs. Allen, 8 Term Rep. 497, the introductory? words of the, will are, “as to what real and personal estate it has pleased Almighty God to bless me with, I give and dispose of the same as followed);” and after some directions respecting payment of debts and funeral expenses, the testator devised all his messuages, lands, tenements and hereditaments whatsoever, situate, lying, &c. without any words of limitation, to Hfilliarp Mien, to whom, after some specific legacies to another, he also gave, in the residuary clause, all the rest of his personal estate, making no mention of any real property; and it vvas held, that William Mien took an estate for life only in the ¡«remises devised to him. The question in Doe vs. Child & wife, 4 Bos. & Pull. (1 New Rep.) 335, arose upon, the same will and the same clause, (though for a different part of the property devised,) on which the question in Child & wife vs. Wright & others, 8 Term Rep. 64, was decided, and the same decision was made.

In Doe vs. Clarke, 5 Bos. & Pull. (2 New Rep.) 343, the, testator, after the words, “as to that wordly estate where» with it hath pleased God in his kind providence to entrust me, I dispose thereof in the following'manner,” devised to his wife for life certain houses and appurtenances in Swan Lane, and made a general devise, without any words of limitation, of a part of the same premises to his son William, after the death of his wife; there were also general devises of other real property, without words of limitation, to the heir at law, and another remaining spn. ' The question upon that will was, whether T'Hlliqm took an estate in remainder in fee, or for life, after his mother’s death, in the premises so devised to himS. And it was held, that he took only a life estate. And in Drewry vs. Barron, 11 East, 220, Lord Ellenborough said, “.they were tied down by a positive rule of law, that in the devise, of real property, where there are no words of limitation, and no necessary implication from the words of the devise to give a larger estate, the devisee can only take an estate for life.” In that case, the testator, after the words “as touching such wordly estate wherewith it has pleased God to bless me in this life, I give, devise, and dispose of the same, in the following manner and form,” gave to his brother and his heirs a cottage-house, and then devised to his wife “all and singular his lands, messuages and tenements, by her freely to be possessed andenjoyed,” without any words of limitation. The judges thought that if was. the. intention of the testator to give to his widow an estate in fee, but be? cause there were no words, of limitation added to the devise, determined, that she 'took an estate for life.

In all these cases the introductory words, aided in some, of them, by disinheriting legacies to the heir at law, in others by general devises without limitation, to the heir at law, in one by the circumstance, of the sweeping residuary-clause being confined to. personalty, and in another by both a similar residuary clause apd a disinheriting legacy to the heir at law, were made to yield to the rule of law; and they go most clearly to show, that the rule is imperative, and must prevail, where no words, are to be found in, a devise to control it, or take the case out of it. The intention of the testator is in every case to be consulted, and-must govern the construction of the will, when there is any thing open to construction; but when the words of the devise have a fixed and definite meaning, and import in. law nw estate for life, the introductory clause, showing that he meant to dispose of all his property, cannot enlarge it to an estate in fee.

It has also been contended, in addition to the argument drawn from the prefatory words in this cas?, that the circumstance of there being a devise of lands to the eldest son and heir at law7, and which, together with the devises to the other children, is of the same character with that in question, furnishes evidence that the testator intended to give an estate in fee to eacn, and that the residuary clause, containing only a bequest of personal property, proves that lie supposed he had done so. But those circumstances* either alone, or when taken together, with an introductory clause manifesting the intention of the testator to make a disposition of the whole of his property, are not conceived to be sufficient to control the rule of law.

In Child & wife vs. Wright & wife, Doe vs. Child & wife, and Doe vs. Clarke, there were general devises of land, without words of limitation, to the respective heirs at law, as in this case, and in Doe vs. Child & wife, thought by Sir James Mansfield to be an imposing circumstance. In Denn vs. Gaskin, and Doe vs. Allen, there were sweeping residuary bequests of personal property only, as here, which in Doe vs. Allen was urged by counsel in argument 3,s a strong circumstance. And in Frogmorton vs. Wright, Callow & others vs. Bolton, Doe vs. Gaskin, Wright vs. Russell, and Wright vs. Sidebotham, there were disinheriting legacies to the heirs at law, from which quite as strong an argument might be drawn as from a general devise to the heir at law, without words of limitation; and in each ©F the cases of Wright vs. Russell, Child & wife vs. Wright & wife, Doe vs. Child & wife, and Doe vs. Allen, there was the strong additional circumstance, that the devise ia question was a limitation over, after an estate for life. Besides, it is' apparent in this case that the testator could not have supposed that he had disposed of his entire interest in the whole of his property; because the devise to his wife of his dwelling plantation is expressly for life, and no disposition is made of the reversion. It would seern too, speaking from conjecture, that parts of two other tracts of land are. not given to any body; lor he devises to Zephaniah Beall, pari of a tract of land called Allison’s Park, and to Sarah Beall part of a tract of land eajled Beall’s Manort without taking any notice in his will of the oilier parí oí either of those tracts;

These things* though théy áre not mentioned as governing thé decision of this court, ydt they certainly weaken the argument iti favour of a feé, drawn from the supposed intention of tíié téstalóf to dispose of the whole of his estate; and entirely negative the idea, that from the circumstance of the résiduat-y clause containing otily a bequest of personal property, he siipposed he had before parted with all his interest iti his real estate; Since it is manifest, on the face of the will, that he knew he had not disposed of the reversion in the dwelling plantation, having expressly given to his wife an estate for life only, in that tract of land, and hence the construction contended for, though it should prevail, would not gratify the supposed intention to dispose of the .whole interest. Thé mistake here, has been in the application of the principle, that the intention of the testator shall prevail; It shall prevail in expounding words in a devise of dubious import, as to the subject matter to which théy relate; as, if5 the question be, whether they include real property, or are applicable only as used to personalty* it shall prevail in determining the question, whether the words of the devise denote only the specific thing or land devised, or whether they denote the quantum of the testator’s interest therein; it shall prevail whenever the testator makes use of words in the devise, sufficient in law to effectuate it, when the words of the devise'may in law Carry a fee.

The true and safe rule of construction is, that the whole of the will shall be taken together to find out what was the object and intention of the testator at the time of making it, which, where it clearly appears, (no matter how irregularly expressed,) ought to prevail* if when applied to the subject matter of the devise' there' are found apt or sufficient words in law to effectuate that intention.

The Virginia decisions* which áre entitled to great respect, are the other way, there the principle has been differently applied* and the rule of law made to yield to the general intention' of the testator, which lias alone been held sufficient to carry a fee without any words in the devise, which in law would bear it. Kennon vs. M‘Roberts, 1 Wash. Rep. 96, was not decided on that ground, the' case having gone off on another point; but the court very lífoadly expressed the opinion, that the word “estate,” vised in the introductory clause alone, might be transposed to the devising clause, so as to enlarge the interest devised, from a life estate, according to the legal import of the word's of the devise, to an estate in fee. Davis vs. Miller, 1 Call, 127; Watson vs. Powell, 3 Call, 306; and Wyatt vs. Sadler’s heirs, 1 Munf. 537, were all decided Upon that principle; though in the first; the concluding words of the will, “this is my will and the way f desire my estate to be disposed of,” were also taken notice of by the court. In the last case, however, of Wyatt vs. Sadler’s heirs, not only Were there lib words of limitation ill the devise, but the introductory words were, “as to what worldly goods it hath pleased God ió give me, I leave and bequeath as follows:’' neither the word “éstate” nor any equivalent word being used; yet the devisee under a general devise of land, without any words of limitation, was held to take a lee, ihaá giving, under the supposed intention of the testator, an effect to words in the preamble, which if used in a devise in a will, without a preamble, would not have such an effect. But however great our 'deference for the tribunals of that and the other sister states, we cannot agree to unite with them in such a departure, (as we thinlc,) from a long settled rule, which has become the law of the state. The same rule has been recognized and acted upon by the courts of Pennsylvania. in Busby vs. Busby, 1 Dallas, 226, the prefatory words of thé will were, “as io what worldly estate I am bléssed with, Í dispose of as follows:” The testator then, after a devise of lands in fee to his son, devised certain other lands, without any words of limitation, to his wife. He then gave to his wife, in lieu of her dower, one third of such of Ins personal property as should remain after the payment of debts, legacies, and funeral expenses, and bequeathed the remaining two thirds to his son and his live daughters. The question was, as to what estate the wife took in the premises devised to her, and the court decided, on the authority of Frogmorton vs. Wright, that she took only an estate for life. In Lambert’s Lessee vs. Paine, 3 Cranch, 97, there were no introductory words showing the intention of the testator, but the devise was immediate of “ail the estate called Marrowbone in the county of Henry, containing,” &c. “likewise one other tract of land in said county called,” &c. The question was, whether the dé; visee took an estate in fee or for life only, in the tract of land called Marrowbone, which depended upon the sense in which the word “estate” should be taken, whether descriptive only of the particular tract of land devised, or as denoting the quantum of the testator’s interest in the land; Which being entirely a question of construction upon words of dubious import in a devise, the whole will was examined by the court, for the purpose of ascertaining in what sense the word was used by the testator, that is, whether he used it as a word of description only, or to déhote the quantum of his interest in the land; and the court being of opinion, that as there used, it was not descriptive only, of the particular tract of land devised, but denoted the quantum of the testator’s interest, decided that the devisee took an estate in fee; and Washington, J. said, “that words which import nothing more than a specififcatión of the thing devised, as all my lands, all my farms; hiid the like, have never been understood to pass inore than ad estate for life, even when aided by an introductory clause, declaring an intention to dispose of all his estate.”

The case of Lippett vs. Hopkins & others, 1 Gallison, 454, did not turn at all upon the effect of the introductory words of the will, but Lippett, the devisee, was held to take a fee under his father’s will, expressly upon the ground, that a devise to one generally, with a limitation over, only upon the contingency of his dying before he should attain the age of 21, gives an estate in fed to the first devisee, for which Frogmorton vs. Holyday, (cum aliis,) is referred to as authority; and the judge who decided the case, after stating the rule of law so often adverted to, said, “nor is it sufficient for the téstator to express a general intention to dispose of all his property, to turn an estate, otherwise for life, to a more enlarged estate. For though general introductory words to this effect may sometimes aid in the construction of doubtful and obscure clauses, yet they are not permitted to supply material defects, or to convert a •life estate into a fee.”

We are not, however', without decisions by the courts of this state, and of this court, on which we think we may safely rest, and by which, we hold ourselves bound. In Owings vs. Reynolds, at December term, 1810, the will has these preialoty words, “and as to what it has pleased God to bless me with, I dispose as follows,” &c. and immediately following, the testator by a general devise, without limitation, &c. gave to his eldest son and heir at law sixty acres of land, part of a tract of land called Taylor’s Forrest. lie then devised the residue of that tract of land to his wife during her natural life, and after her death generally to his son Lot Owings, &c. and it was held, that Lot took only an estate for life, hi that case, as in this, there was an introductory clause; in that case, as in this, there was a. general devise without limitation to the heir at law'; and in that case, as in this, there was an express estate,for life given to the widow. Here there is a residuary clause, relating to personal property only, in that case there was no, residuary clause, which furnishes as strong a presumption, that the testator supposed he had disposed of the whole aflús estate, as can arise from a residuary clause of personalty only; and every argument in favour of a fee, that can be raised in this case, was equally applicable to that, with the additional circumstance, (among other things more strong,) that there, the devise to Lot Owings was a limitation over, after an estate for life; and the circumstance^ that the word “estate,” which is to be found in the preamble of this will, but was not used in the preamble to Ow - ings’s will, makes eo manner of-difference, in, that case the expressions were, “as to what it lias pleased God,” &c. by which it is as clearly manifested, that the testator had the whole of his property in view, as if the word “estate” had been used, the word what having reference to every thing he had, and the will itself-containing devises of real-as well as bequests of personal property.

Walters vs. Walters, in this court, at June, term 1811, was decided upon the same principle; the introductory words were “as for my worldly goods, which it hath pleas-, ed God to bless me with in this life,-1 give and dispose of In the following manner and form.” After directing the payment of his d^bts and funeral charges, the testator made a general devise, without any limitation, of part of a tract of land, to one of his sons, and then made a similar devise of another part' of the same land to Ms son Benjamin Walters. To the heir at law he devised- certain lands for life, and ail the other devises in the will were without words of limitation, &c. and it was ruled that Benjamin Walters, took only an estate for life. The residuary clause. V33 held to be applicable to the personalty only; and Chctse> ph- L in delivering the opinion of the court said, that the testator, in the introductory clause, manifested an intention to dispose of the whole of his estate. Which he. clearly did, if that, kind of introductory clause manifests any thing; for the first thing disposed of in the will, was, part of a tract of land, which shows, that the words “worldly goods” were intended to be applied, as well to real as to personal property. And in Tofield vs. Tofield, 11 East, 246, it was decided, that where a testator calls his real estate, personal, property, it may pass by that description. From these cases, that under consideration cannot in principle be distinguished. We are therefore of opinion, that JRobert Beall and Joseph Beall, took a life estate only in the premises in question under the will of their father. James Beall; the devise to them being general without words of limitation, or any other words added, sufficient to carry a fee, but the expressions used, being such, as import in law an estate for life.

It may perhaps be safely assumed, that every man, when, about to make his will, has the whole of his estate inyiew, and that the belief, often repeated by Lord Mansfield and, other distinguished judges, “that in almost every case,, where a general devise is restricted to an estate for life, the intention of the testatoi; is defeated,” is not without foundation, and yet they felt themselves bound by the. rule of law. If the question here, was a mere question of intention, there would not be much difficulty in conjecturing what estate the testator meant to give; but the. question is not what lie intended to do, but what according to long settled principles of construction he did do. Perhaps it would be better if the rule were changed, and that in every case the fee should pass, unless restrained by words of limitation- But that can only regularly be effected by an act of legislation, with which we have nothing to do.

It is high time that the question involved in this case was set at rest, and this elaborate, and I fear tiresome examination of it, has been gone into, in order that it may Bow be finally settled.

JOTGMENT AFFIRJUEIX,