Lambert's Lessee v. Paine. 3 C. after paying my debts, the balance, if any, be remitted to my nephew, John Lambert, out of which he shall pay his mother 500l.," &c. The testator died soon after executing the last-mentioned will. His brother, John Harmer, died in 1793, having never become a citizen. The jury further find that John Lambert, the plaintiff, is a British subject, was born before the revolution, namely, in the year 1753, and is heir at law to the testator. The treaties with Great Britain, and an act of Virginia, vesting in George Gilmer any interest that may have escheated, are also found in the verdict. The land sued for is a part of the Marrowbone tract. The questions suggested are1. What estate is conveyed to George Gilmer by the will of 1786? 2. If but an estate for life, does the will of 1782 remain unrevoked as to the remainder, so as to convey it to the plaintiff? 3. And last. Is John Lambert disqualified to inherit as an alien; or, if incapable, generally as such, is he not protected by the treaties existing between this government and Great Britain, particularly the 4th article of the treaty of London? To form a judgment on the first point, it is necessary to consider, * 1. The general import and effect of the word estate, as [* 128 ] applied to a devise of realty. 2. Whether its general import is controlled or altered by the subsequent words used in a similar sense in the will of 1786. I consider the doctrine as well established, that the word estate, made use of in a devise of realty, will carry a fee, or whatever other interest the devisor possesses. And I feel no disposition to vary the legal effect of the word, whether preceded by my or the, or followed by at or in, or in the singular or plural number. The intent with which it is used is the decisive consideration; and I should not feel myself sanctioned in refining away the operation of that intent, by discriminations so minute as those which have been attempted at different stages of English jurisprudence. The word estate, in testamentary cases, is sufficiently descriptive both of the subject and the interest existing in it. It is unquestionably true, that its meaning may be restricted by circumstances or expressions indicative of its being used in a limited or particular sense, so as to confine it to the subject alone; but certainly, in its general use, it is understood to apply more pertinently to the interest in the subject. To one not accustomed to the discriminations of technical refinement, it would seem that no doubt could be entertained as to the interest devised to Gilmer. The plain, ordinary import of the words would convey the idea of an absolute disposi Lambert's Lessee v. Paine. 3 C. tion of every article of property disposed of by the will. That words of inheritance are necessary to convey a fee, is certainly a good general rule of the common law; but, in the case of wills, it is entirely subordinate to expressions of the testator's intention. In the case before us, there is no necessity for extending the deci sion of the court beyond the words made use of in disposing of the Marrowbone tract. But it is contended that the words adopted by the testator, in devising the two other tracts, are used in the same sense as those in the first devising clause, and being of a [129] *more restricted signification, ought to limit the word estate to a description of the mere locality. I think otherwise. When a word is made use of to which a clear legal signification has been attached by successive adjudications, it ought rather, in my estimation, to control the meaning of those of a more equivocal purport. But the construction of a will ought to depend much more upon the evident intent of the testator, than upon the strict import of any term that he may make use of. Too critical an examination of the diction of a will is rather calculated to mislead the court, than to conduct it to a just conclusion. I infer the intent of the testator, in the case before us, from the following circumstances, extracted from the special verdict. 1. In the first clause of the will of 1782, the testator makes use of the expression "all the estate, both real and personal, which I possess, or am entitled to, in the commonwealth of Virginia," evidently under an impression that the word estate is sufficient to convey a fee; because, out of the estate, thus devised to his trustees, he instructs them to convey to his brother, or nephew, in the alternative stated, a good and indefeasible title in fee-simple. 2. There is no reason to infer, from any thing in this case, that the testator intended only to make a partial disposition of his property; that he intended to die intestate as to any part of it. The fair presumption generally is, that he who enters upon making a will, intends to make a full distribution of every thing that he possesses. That such was the particular intention of this testator, I think fairly inferrible from the general nature of the residuary bequest. The word other, in my opinion, is referable to the whole preceding part of the will, and excludes, as well the lands devised to Gilmer, as the negroes and horses which he directs to be sold. We must give it this construction, or else suppose, either that the word property, here used, is confined to personalty, or, that it includes every thing that he possessed, both real and personal; in which latter case [* 130] it would comprise even the lands previously disposed of. It follows, therefore, that in the clause in which he proposes Lambert's Lessee v. Paine. 3 C. to dispose of the whole residue of his property, he omits making any disposition of any interest in the lands in question; evidently as it impresses me upon the supposition that he had already disposed of his whole interest in them. What object could the testator propose to himself by dying intestate as to the remainder in fee, in the lands in question? He knew that his heir at law was an alien, and, as such, incapable of holding lands under a government to which he did not owe allegiance. This circumstance is evident from the will of 1782, and it is equally evident from the same will, that he felt that repugnance, which is common to all men, at the idea of suffering his lands to escheat, and knew the means of preventing it. I am therefore of opinion, upon the first point, that George Gilmer took a fee in the land which is the subject of this suit, and this opinion disposes also of the second point, and renders it unnecessary for me to consider the third. WASHINGTON, J. The only question in this cause which I mean to consider is, whether the will of George Harmer, made in 1786, passes to George Gilmer an estate in fee, or for life, in the Marrowbone land. The words of the clause containing the bequest are, "I give to Doctor George Gilmer, of Albermarle county, all the estate called Marrowbone, lying in Henry county, containing, by estimation, 2,585 acres, and likewise, one other tract called Horse-pasture, containing, by estimation, 2,500 acres; also one other tract containing, by estimation, 667 acres, called the Poison-field. * The rule of law most certainly is, that where, in a devise of real estate, there are no words of limitation superadded to the general words of bequest, no thing passes but an estate for life; but since, in most cases, this rule goes to defeat the probable intention of the testator, who, in general, is unacquainted with technical phrases, and is presumed to mean a disposition of his whole interest, unless he uses words of limitation, courts, to effectuate this intention, will lay hold of general expressions in the will, which, from their legal import, comprehend the whole interest of the testator in [* 131 ] the thing devised. But if other words be used, restraining the meaning of the general expressions, so as to render it doubtful whether the testator intended to pass his whole interest or not, the rule of law which favors the right of the heir must prevail. Thus, it has been determined, that the words "all my estate at or in such a place," unless limited and restrained by other words, may be resorted to as evidence of an intention to pass, not only the land itself, but also the interest which the testator had in it. But words which import nothing more than a specification of the thing devised, as "all Lambert's Lessee v. Paine. 3 C. my lands," "all my farms," and the like, have never been construed to pass more than an estate for life, even when aided by an introductory clause, declaring an intention to dispose of all his estate. Except for the establishment of general principles, very little aid can be procured from adjudged cases in the construction of wills. It seldom happens that two cases can be found precisely alike, and in the present instance, I do not recollect that a single one was read at the bar which bears an analogy to it. The case of Wilson v. Robinson, which comes the nearest to it, is of doubtful authority. No reasons are given by the court for their opinion, and, consequently, it is impossible to know whether it was or was not influenced by other parts of the will. Ibbetson v. Beckwith was decided upon a manifest intent to pass the inheritance arising out of the different parts of the will taken together, amongst which is to be found an introductory clause which the chancellor says, affords evidence that the testator had in view his whole estate. The cases of The Countess of Bridgewater v. The Duke of Bolton, and Bailis v. Gale, only lay down the general principle, which is not denied, that the word "estate" in a will, standing alone, and unqualified by other words, is sufficient to pass the whole of the testator's interest. The words "all my land and estate," in the case of Barry v. Edgeworth, express so plainly an intention to give a fee, that I only wonder a question could have been made of it. They are quite as strong as if the testator had given the land, and all his interest in the land, where the word estate or interest, unless construed, as was done in that case, would have been perfectly nugatory. In Goodwin v. Goodwin, the chancellor doubted whether the word estate was not so limited and restrained by strong words of locality and description as to deprive it of the interpretation generally given to it. [* 132 ] *In the case now under consideration, there is no introductory clause declaratory of an intention in the testator to dispose of the whole of his estate; yet, I admit that if he had devised all his estate called Marrowbone, without using other words calculated to limit the technical meaning of the word estate, the cases cited by the defendant's counsel would establish, beyond a doubt, that a fee passed. But I cannot read this clause of the will without feeling satisfied that the testator did not mean to use the word estate in its technical sense. For he not only varies the description of the tracts of land called Horse-pasture and the Poison-field, so as to show that, with respect to them, he only meant to describe their situation and quantity; but, by using the word "other," it is plain, that with respect to the Marrowbone estate, his design was the same. Unless, in the disposition of this latter estate, he had described, or intended Lambert's Lessee v. Paine. 3 C. to describe it as so much land, he could not, with any propriety, speak of the Horse-pasture estate as another tract of land. It will hardly be said that the devise of the last tracts passes more than an estate for life, unless the word estate, before used, can be transferred to those tracts, so as to impart to the expressions there used, the technical meaning given to the word estate where it stands alone. But I cannot perceive how this is to be done without supplying words not used by the testator, and which there is no necessity for doing in order to make sense of the clause as it stands. It would, I think, be going too far to supply more than is necessary to make each devise a complete sentence, and then to introduce the preposition "in" for the purpose of making sense of the whole. Yet, if this be not done, the word estate cannot, in respect to the Horsepasture and the Poison-field tracts, be pressed into the service, and made in any manner to fit the sentence. If only an estate for life in the Horse-pasture and the Poison-field tracts passed to George Gilmer, it will, I think, be very difficult to maintain that the word estate, in the same sentence, governed by the same verb, and coupled with the words which describe those tracts of land, can be construed to pass a fee. The testator certainly uses the words estate and tract of land as synonymous expressions; and then the question will be, whether the generality of the first shall enlarge *the plain [*133 ] and usual import of the latter words, or the latter restrain the technical meaning of the former? I know of no case where the word estate is used at all, in which its general import is limited and restrained by so many and such strong expressions descriptive of the land, and totally inapplicable to the interest of the testator, as in the present. The words, the estate called Marrowbone, lying in Henry county, containing, by estimation, so many acres, excite, at first, no other ideas than such as respect the name and situation of the land, with the number of acres contained in it. The description would be equally accurate, whether the interest of the testator were a fee, or a term for years. If, then, we are to search after and to effectuate the intentions of men supposed to be unacquainted with legal phrases, and are, on that account, to construe the words they use with indulgence, I think we shall be more likely to fulfil this duty by limiting the general import of a technical word, which, in its common use, is entirely equivocal, and is rendered particularly ambiguous in this case by the words which immediately attend it, than by giving to the words, tract of land, a meaning which they do not, in themselves, import, and are seldom, |