yet it did not apply in opposition to the | seized and possessed of, and entitled quashing of the second execution, which to, the equity of redemption in a tract of issued after the first was returned executed, land called Whitehall on Appamatox, conand remained in that state: for we think, taining 711 acres, which it is agreed was at that under the act of Assembly, a bond to his death of greater value than the Ochanreplevy, whilst the execution remains un-eachy and Finney wood lands,-what other quashed, is as complete an execution of the estate he possessed, or what debts he judgment, as if the estate had been sold owned is not stated, except what was due to the full amount of the debt, and the on the mortgage of the Whitehall estate to party is left to pursue his new remedy upon Theophilus Field.

the bond.

Judgment of the District Court reversed and that of the County Court affirmed.

Kennon v. M'Roberts and Wife.

April Term, 1792.
Wills-Construction-Devise without Words of In-

heritance-Residuary Clause*-Case at Bar.-R. M.
seised of three tracts of land, and entitled to the
equity of redemption in a fourth, made his will
in 1743, and after declaring that, as touching his

temporal estate. he desires the same may be employed as follows: directs, in the first place, that all his just debts shall be paid. He then devises to his eldest son, all his lands at O. and F. with some negroes and stocks. To his other son, all his lands at C. with other negroes and stocks. To his wife and daughter he gives all the rest of his estate real and personal (saving one negro, by name, whom he gives to his second son) but no words of inheritance are annexed to any of the devises. The inheritance in the land devised to the heir at law, descended upon him, and did not

pass under the residuary clause. Same Same Same.-In a general devise of lands, without limitation or restriction, the reversion will not pass under a general residuary clause, but will descend to the heir.

This was an ejectment brought by the appellees to recover a tract of land called Ochaneachy island in which the following case was agreed.

That Robert Mumford was in his lifetime seized in fee of the lands in dispute, called Ochaneachy island, of another tract called Finney wood, and of another 97 called Cargills. That he was also

That being so seized and possessed, the said Robert Mumford made his last will bearing date the 8th of September 1743, and after the usual clauses respecting his soul and body, he adds "as touching my temporal estate, my will and desire is that it shall be employed and bestowed as hereafter, in this my will, is expressed."

"Item: I will that all my debt I owe in right or conscience, shall be paid by my executors, within convenient time after my death."

"Item: I will and bequeath to my son Robert Mumford (his heir at law) all my lands at the Ochaneachy island, also all my lands of Finny wood, with six negroes (by name) and ten horses and mares.

"Item: I will and bequeath to my son Theoderick all my lands at Cargills on Roanoke River, containing 690 acres, with two negroes; Sam at Roanoke, and Jack at Rowanty, also ten horses and mares."

"Item: to my well beloved wife, and only daughter Elizabeth, I will and bequeath all the rest of my estate real and personal saving one negro girl to my son Theoderick."

And appointed his wife, Theophilus Field, and Theoderick Bland his executors.

That he died in the year 1745 leaving his said widow and children before mentioned, and that the will was proved and admitted to record.

That Robert and Theoderick entered into the lands to them respectively devised, and they, and those claiming under them, continued in possession, till their several deaths.

That Theoderick died in 1772 and Robert in 1783, that the latter was aged about eight years at the time of his father's death.

That Ann the widow died in 1770; the daughter Elizabeth (now wife of the lessor of the plaintiff) surviving, and that no partition or severance was made between them.

*Wills-Construction — Intention. - See, citing the principal case on this question, the following: Wilkins v. Taylor, Wythe 345, 350, 352, 353; Cole v. Clayborn, 1 Wash. 265; Horde v. McRoberts, 1 Call 337: Watson v. Powell, 3 Call 308; Smith v. Chap- The proceedings in a suit in chancery man, 1 Hen. & M. 291; Ambler v. Norton, 4 Hen. & M. brought by the widow and daughter, to re44: Wyatt v. Sadler, 1 Munf. 541, 542, 543, 545, 546: John-deem the Whitehall estate is agreed, as son v. Johnson, 1 Munf. 552, 553; Minor v. Dabney, 3 also the payment of £830: 16: 4 on that acRand. 209: Goodrich v. Harding, 3 Rand. 282, 284, 285; count. Miars v. Bedgood, 9 Leigh 377: Wootton v. Redd, 98 12 Gratt. 205, and note: Hooe v Hooe. 13 Gratt. 247, 255: fool-note to Tebbs v. Duval, 17 Gratt. 349; Markells v. Markells, 32 Gratt. 556; Stonestreet v. Doyle, 75 Va. 368; Carr v. Effinger, 78 Va. 206; Cole v. Cole, 79 Va. 255; Randolph v. Wright, 81 Va. 612; East v. Garrett, 84 Va. 537, 9 S. E. Rep. 1120; Wallace v. Minor, 86 Va. 556, 10 S. E. Rep. 423; Hall v. Palmer, 87 Va. 356, 12 S. E. Rep. 618; Hurt v. Brooks, 89 Va. 500, 16 S. E. Rep. 358: Graham v. Graham, 4 W. Va. 322; Irwin v. Zane, 15 W. Va. 653. The principal case is reported with a note in 1 Am. Dec. 428.

*That the widow (who after her husbands death intermarried with Currie) and daughter with their husbands, in 1770 conveyed the Whitehall estate to Theoderick Mumford in fee, for the consideration of £1000, reserving the use of a moiety of the land, with the houses thereon to Mr. Currie and his wife, and to the survivor for life, and afterwards half that moiety to Mrs. M'Roberts, during widowhood, upon the contingency of her becoming a widow.

The District Court of Brunswick gave | ing the duration of their tenure, he meant judgment for the plaintiffs from which the defendant appealed.

The PRESIDENT delivered the opinion of the Court.

The principal questions made in this cause were: 1st, what estate the sons Robert and Theoderick took in the lands devised to them whether in fee simple or for life only? If the former, then the appellees have no title; if the latter, then

2d Whether the reversion in those lands passed under the residuary clause to the wife and daughter, or was undisposed of, and descended to the heir; and this latter supposition if true will be equally fatal to the title of the appellees.

For the appellant it is insisted that the fee passed to the sons.

1st Because the testator's debts are by the first clause in the will, charged upon the lands, and that this is sufficient to enlarge an estate, not given expressly for life, into a fee. That justice requiring, that all a man's property should be subject to the payment of his debts, slight words in a will, are sufficient to create a charge upon lands for this purpose, where the debts cannot otherwise be paid: cases cited Cas. Temp. Talb. 110 Prec. Ch. 430.

If this were a case between creditors, and the devisees of the lands, I think that such a construction would be made.

to give it absolutely. That if so, the court, rather than disappoint that intention, will carry the word estate, from the preamble, to each devise, so as to make the clause in question read thus: "as to my estate in the land at Ochaneachy, I give it to my son Robert," &c.

The counsel on the other side admit, that the testator's intention is to be the rule of decision; but with this restriction, that it is to be collected from the words of the will itself-and that it must consist with the law and settled rules of construction: that the rule, in common law conveyances "that where lands are conveyed without limiting any estate, they only pass for the life of the grantee," extends equally to wills, unless the testator use some words expressing his intention to pass a larger estate: that none such are to be found in this will, unless it be the word estate, in the preamble; which cannot have that effect, according to a late determination in the case of Wright and Wright &c., 3 Wils. 414.

To discover what is comprehended in the residue, we must view and discuss the preceding bequests, to ascertain what he has disposed of, and what remains undisposed of, for the word rest to act upon. But I would first premise, that we disclaim all legislative power to change the law, and only assume our proper province of declaring what the law is: we disclaim all But a charge which is by construction to authority to mould testator's will into any give a fee in lands devised, seems to stand form which fancy, whim, or worse passions. upon other ground. It must be direct might suggest; we regard his own words, charge of a sum in gross, either upon the and compare them with his circumstances, lands devised, or upon the person of the and the relative situation of the devisees. devisee, however small the sum may be; So far we approve of Mr. Fearne's general for life being precarious, it might end be- reasoning, tho' we may not accord with fore any part of the money were raised, so him in another assertion: namely, "that as to render that onerous, which was in-legal rules of construction ought not to tended to be beneficial to the devisee. 3 yield to the intention of ignorant testaBurr. 1533-1618 Cowp. Rep. 352.

If the money charged be to be raised by rents and profits, or if the land be made liable only upon the event of the personal estate becoming deficient, a fee will not be created; because in neither case can the devisee be a loser by taking an estate for life. 3 Cowp. Rep. 236.

99

100

tors:" since it is on account of that ignorance, that their words are to be taken in the sense in which such men commonly use them, and not in that technical sense affixed to them by professional men. In Hodgson v. Ambrose, Dougl. 323

a distinction is made which seems to be a sensible one, to wit: if the testator use *The will now under consideration legal phrazes, his intention should be condirects the testator's debts to be strued by legal rules. If he use those that paid by his executors, without prescrib- are common, his intention, according to the ing the mode, and contains no words common understanding of the words he exempting the legal fund, and charging uses, shall be the rule. them upon the lands or upon the perThe apparent clashing of the cases relied sons of the devisees-so that the resid- upon in this discussion, induced the court uary estate is alone burthened with them, to trace the subject to its foundation, to see and the lands in question can only be re- if they could discover a principle so certain sorted to, as an auxiliary fund, to make up and uniform, as to direct a satisfactory dethe deficiency--and as an application for cision either way. that purpose could only be made by the creditors, there seems to result from considerations of this sort no necessity to create a fee in the devisees.

When upon the adoption of the feudal system in England, an arrangement was made of the various tenures by which lands were to be holden, the mode and form of 2d, It is insisted that a fee was intended creating each of them was pointed out, and to pass, because in the preamble of the will, the power of each particular tenant over his the testator declares an intention to dispose estate settled: it was natural to suppose of his whole estate; and when he devised that their technical forms would not always lands to his sons generally, without limit- be attended to, and therefore it became

necessary to provide a rule for cases, where money, produced a new contending spirit, the duration of the estate was not de-averse from perpetuities of land in the same scribed. families, and favorable to alienations. Common sense would have dictated, that It was this spirit which enabled Henry an absolute estate should pass by a convey- the 7th to gratify his wish of lessening the ance unlimited as to duration, and contain- power of the Barons, by introducing the ing no provision for its return to the fictitious fine and recovery, as an effectual grantor, at a future period, or on a contin- bar of estates tail, and all remainders and gency. But reason was made to yield to reversions depending upon them, and this the spirit of a system, unfriendly to alien- became a new and common mode of conations, or divisions of lands: and there- veyance. fore, the rule that such conveyances passed only an estate for life, was established. The same spirit established the rights of primogeniture, and, (aided by the statute de donis,) permitted estates tail, and all lesser estates to be carved out of the fee simple; the residue ultimately continuing in the grantor, capable of being disposed of when the paticular estates should be ended. This disposition gave what was called a remainder in fee-but it often happened, that the fee was not disposed of; and generally in such cases, as this now before the court, when that fee rested in the donor as part of the old estate, it acquired the character of a reversion, and descended to 102 *In the construction of wills (more the heir at law.

This spirit of the feud, is mentioned, as explanatory of those rules of construction, which, in favour to the heir at law, narrow as much as possible the operation of all conveyances, calculated to disinherit him. By the American revolution, and some of our laws, we have happily got rid of 101 the feudal system, and the rights of primogeniture; so that the favour hitherto claimed by heirs at law in the construction of conveyances affecting their rights, will no longer be heard of, in cases happening after January 1787, when those laws took effect: but the intention of testators will become in reality the rule, which, though hitherto avowed to be such, hath been so refined away as in many instances to have been sacrificed to rigid technical terms.

However it may be as to such new cases, the present, as well as all others which may come before us, arising at a prior period, must be decided according to the law of that time, as far as we are enabled to discover it.

A general observation may here be made: that all the legal artillery now played off against the heir, was furnished by the above mentioned bias, to fortify his title; but if it may be thus turned against him by the rules of legal warfare, we cannot help it: we have only to enquire, if it do defeat him or not.

The feudal Rule "that where an estate was conveyed without limitation, no more than an estate for life passed, and the reversion descended to the heir," acted for a long time merely on feoffments and grants, the only conveyances then in use; and in such, the rule has constantly prevailed.

But it may be remarked, that as the personal wealth of the nation increased, a desire in the rich commoners, to realize their

The same spirit operated more powerfully in the next reign, producing the statute of uses, the parent of conveyances by lease and release and giving new vigor to covenants to stand seized to uses. This, and the statute of inrolments, gave rise to bargains and sales for money; and finally the statute of wills enabled proprietors of lands to dispose of them, by their last wills at pleasure.

These new statutory conveyances received a much more liberal interpretation, to favor the intention of the parties, than were indulged to those at common law, but which need not now be mentioned.

particularly,) an extensive latitude has been allowed, on account of the extremity, in which they are often made, not admitting of counsel being called in, but inducing the necessity of resorting to any person, however unskilful, who may be at hand. And it is not improbable, that the respect which all men have agreed to pay to the will of the dead, might have had considerable influence.

That the intention of the testator is to give the rule of construction, is declared by all the judges both ancient and modern. Ld. Holt and some others more modern, emphatically call that intention, the Polar Star, which is to guide our decision—and in a late case of Hodgson v. Ambrose, Doug1. 323, the court say, that this is the governing rule, to which all other rules of construction must yield.

If this were a new question, I believe there would be no great difficulty in deciding, that the rule, which prescribes technical terms for the passing of different estates in common law conveyances, did not extend to wills at all; since no such terms were prescribed to testators, by the statute of wills, which enabled them to dispose of their lands at pleasure. But the judges, after laying down the true rule built upon intention, unfortunately admitted, that if there were no words of limitation, the common law rule must prevail; by which they tied a gordian knot, which they have since struggled to unite. It would have been better if they had cut it at once.

This rule however of construing wills according to intention, is laid down with some limitation, as 1st, The disposition, intended to be made, must not conflict with the rules of law: which I understand as applying to restraints upon the creation of perpetuities, devises in Mortman, and the like; and of course, it has no influence upon this question.

2d, The intention must be collected from | technical terms are necessary, but they the will itself. will lay hold of or (as some express themselves) will catch at any slight expressions, and make them answer the purpose.

This is true, if we admit those words to be explained by the relative situation of the parties, and the circumstances of the testator; which, a multiplicity of cases prove, ought to be considered. Thus explained, this limitation will be regarded.

3d, The intention is not to prevail against settled and fixed rules of construction.

104 *At first indeed, they went no farther, than to supply the omission of the word heirs, necessary to give an inheritance in common-law conveyances, by other words tantamount to it. Such as to him and his assigns, to him and his seed, to him forever, to him and his----and such like.

If we could discover those settled rules of construction, we would pursue them. But, after all our researches, we are much inclined to arm what is said by judge Wil- But in the progress of their struggle for mot in Baddeley v. Leppingwell, 3 Burr. the intention, against this rigid, unjust 1533. that cases on wills serve rather rule of law, they went further, and made 103 *to obscure, than illuminate questions various other words answer their purpose. of this sort;" in which the present It was in this manner that the word esmay be classed. So it is said by the court, tate was taken into the service, which in in Jeffereys v. Poyntz. 3 Wills. 141. "That its vulgar and common meaning, is decases on wills may guide as to general scriptive only, of the quality of things: as rules of construction, but, unless a case land &c. and not of the interest in them. cited be in every respect directly in point, Yet to serve this beneficial purpose, they and agree in every circumstance, it will have given it a more extensive signification, have little, or no weight with the court, so as to make it comprehend as well the who always look upon the intention of the thing as the testator's interest in it; and so testator as the polar star to direct them in to pass a fee, which it would no more do in the construction of wills." common-law conveyance; than if there were no limitation whatever. For tho' lord Holt in the case of the countess of Bridgewater v. the Duke of Bolton, 1 Salk. 236, says "the word estate is genus generalissimum, and comprehends both the thing and the interest," yet that was in a case of a will; and lord Mansfield in Mudge and Blight before mentioned, expressly says, "It was on the ground of the judges laying hold of any expression to favor the intention, that a devise of all one's estate, or of all his estate at A, passed a fee." See also 2 Ld. Ray. 311 Salk. 234.

The appellees, in applying this objection to the present case, insist upon it as a settled rule of construction, that where lands are devised without limitation, and no words are used to shew an intention to give a fee, the rule of law that only an estate for life passes, prevails. And this is laid down as a general position by most of the judges, who speak upon the subject: but from their manner of expression, and from their application of it to particular wills, it will appear to have but little influence upon their decisions.

In Bows v. Blacket, Cowp. Rep. 236, a singular decision is made. It was a devise, "of all his freehold and leasehold lands, and all his estate and interest therein to his wife for life," remainder to two sisters as tenants in common, chargeable with the payment of debts and legacies; and it was determined that only an estate for life passed to the sisters.

In the case of Mudge v. Blight, Cowp. Rep. 352. lord Mansfield says, "I really believe that every case determined upon the rule of law, directing an estate for life, if there be no limitation, defeats the intention of the testator."

In the case before us, in the devises to his two sons, he gives to Robert all his land at Ochaneachy island and Finneywood; and to Theoderick all his lands at Cargills, without any words of limitation whatever. The word estate is not used in the devise, nor are there any other expressions, indicating an intention to give a fee.

But it insisted upon at the bar, 1st, That his intention is apparent from the relative situation of the testator, with the several devisees; since he could not intend to disinherit the grandsons who were to bear his name in favor of the issue of a wife and daughter.

be

It must be confessed, that such an intention would make the testator invert the order of every family provision; giving sons only an estate for life in lands, for whom perpetuities would generally created, if not restrained by law, and instead of a present provision for a wife, give her a reversion after estates for life to her infant children; from which she could expect no benefit, tho' her issue by a second husband, might take the estate from the testator's grand-children.

To the same purpose is judge Buller, in Palmer v. Richards, 3 Durnf & East 356. "There is hardly a case of this sort, where only an estate for life is held to pass, but that it counteracts the testator's intention: for where a testator uses general words he means to dispose of every thing he has." When therefore we find judges declaring that the intention of the testator is to be their guide, and that the rule of law now insisted on violates that intention, (as I believe all mankind will agree it does, for the reason given by judge Buller,) it is no 105 *To suppose such an intention in wonder, that we find them constantly dethe testator is absurd in the extreme, claring, that tho' the rule must prevail if and I am persuaded, that there is no person there be no words to controul it, yet no who believes he so intended it.

2d, The counsel then insisted that rather | gether by the word also, and therefore the than disappoint this apparent intention, word estate as carried to the devise of the the court will carry the word estate from Bell tavern so as to pass a fee. the preamble, to each clause in the will, so as to bring the case within the rule, that a devise of the estate passes a fee.

2d, If the assertion of the chief justice 107 "that there is no case where the word estate, in the preamble, had been adjudged to give a fee in lands afterwards devised without limitation," be true, then this single case might decide the present; but if it shall appear to be unfounded, it 106 will evince the decision to have *been made without due consideration, and the authority of the case must be given up. The cases cited upon that occasion were Hob. 65,-1 Salk. 236,-1 Vern. 85,-Prec. Chan. 264, -2 Vern. 690,-3 P. Wms. 295,Cole v. Rowlinson, 1 Salk. 234, was also cited -In this case nothing is said about the preamble, but the devise being of all the testatrix's estate, right, title and interest, in whatever he held by lease from sir John Freeman, and also the house called the Bell tavern, of which she had only the reversion in fee after an estate tail in the son, to whom she devised it; the whole was considered as one sentence, tied to