Lambert's Lessee v. Paine, 7 U.S. 97 (1805)

U.S. Supreme Court

Lambert's Lessee v. Paine, 7 U.S. 3 Cranch 97 97 (1805) Lambert's Lessee v. Paine

7 U.S. (3 Cranch) 97

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES

FOR THE MIDDLE CIRCUIT IN THE VIRGINIA DISTRICT

Syllabus

A devise of "all the estate called Marrowbone, in the County of Henry, containing by estimation 2,585 acres of land," carries the fee.

This was an ejectment brought in the Circuit Court of the United States for the Middle Circuit in the Virginia District in which John Doe, a subject of the King of Great Britain residing without the State of Virginia, lessee of John Lambert, another subject of the King of Great Britain, complains of Richard Roe, a citizen of Virginia, residing within the said state, and claims possession of a messuage and tenement containing 156 acres of land in the County of Henry, being part of a tract of land called Marrowbone.

The jury found the following special verdict, viz.,

"That George Harmer, being seized in fee of the lands in the declaration mentioned, on 25 June, 1782, made a paper writing, purporting to be his last will and testament, all written with his proper hand and signed by him, which will we find in these words"

" In the name of God, Amen. I, George Harmer, of the Commonwealth of Virginia, being perfectly well and of sound mind and memory, do make and ordain my last will and testament in manner and form following, that is to say all the estate, both real and personal, that I possess or am entitled to in the Commonwealth of Virginia I hereby give and devise unto my friend Thomas Mann Randolph of Tuckabo, and Henry Tazewell, of the City of Williamsburgh, in trust, upon these conditions that when John Harmer, my brother, now a subject of the King of Great Britain, shall be capable of acquiring property in this country, that they or the survivor of them do convey or cause to be conveyed to him in fee simple a good and indefeasible title in the said estate, and in case the said John Harmer should not be capable of acquiring such right before his death, then that my said trustees or the survivor of them do convey the said estate in manner aforesaid to John Lambert, son of my sister, Hannah Lambert, when he shall be capable of acquiring property in this country, and in case John Lambert should not, before his death, be capable of acquiring a title to the said estate, then I direct the same to be conveyed

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to my sister, Hannah Lambert, if she, in her lifetime, can acquire property in this country."

" But if the said John Harmer, John Lambert and Hannah Lambert should all die before they can acquire property legally in this country, then I desire that my trustees aforesaid may cause the said estate of every kind to be sold, and the money arising from each sale, together with intermediate profits of the said estate shall be by them remitted to the mayor and corporation of the City of Bristol in England, to be by them distributed according to the laws of England to the right heirs of my said sister, Hannah Lambert, to whom I hereby give all such money, excepting the sum of �100 lawful money to each of the aforementioned trustees, which shall be paid out of the first money arising from the sales aforementioned, or from the profits arising to my heirs. In witness whereof, I have hereunto set my hand and affixed my seal this 25th of June, 1782."

"We find that on 12 September, 1786, the said George Harmer, being seized as aforesaid, duly executed another writing testamentary, which we find in these words:"

" In the name of God, Amen. I George Harmer, being sick and weak in body, but in perfect mind and memory, do give and bequeath unto Doctor George Gilmer, of Albemarle County, all the estate called Marrowbone, in the County of Henry, containing by estimation 2,585 acres of land; likewise one other tract of land in said county, called Horse Pasture, containing, by estimation, 2,500 acres; also one other tract in the county aforesaid containing, by estimation, 667 1/2 acres of land, called the Poison Field. It is my desire that all my negroes, horses, and other property be sold, and after paying my debts, the balance, if any, be remitted to my nephew, John Lambert, out of which he shall pay his mother five hundred pounds. . . ."

"Afterwards, on 12 or 13 September, 1786, he departed this life without revoking the will or writing testamentary last mentioned and without any other revocation of the will first mentioned than the said writing testamentary of 12 September, 1786. We find that John Harmer, mentioned in the paper writing of June, 1782, departed this life about the year 1793. We find, that John Lambert, named in the paper writings

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aforesaid, the lessor of the plaintiff, and, if capable of inheriting lands in Virginia, heir at law to the said George Harmer; that he was born in England on or before the year 1750; that he has never resided in any of the United States of America, and is and ever has been, from the time of his birth, a subject of the King of Great Britain. We find that George Gilmer aforesaid, under whose heir and devisees the defendant holds, died in the month of November, 1793. We find that in the December session, 1798, the General Assembly of Virginia passed an act which we find at large in these words:"

" An act vesting in the children of George Gilmer deceased, certain lands therein mentioned (passed January 12, 1799)."

" Section 1. Be it enacted by the general assembly that all the right, title, and interest which the commonwealth hath or may have in or to the following lands lying in the County of Henry, which George Harmer, by his last will and testament, devised to a certain George Gilmer, and which, since the death of the said George Gilmer, it is supposed have become escheatable to the commonwealth, to-wit, one tract called Marrowhone, containing, by estimation, 2,585 acres; one other tract called Horse Pasture, containing, by estimation, 2,500 acres; and one other tract called the Poison Field, containing, by estimation, 667 1/2 acres, shall be, and the same are hereby released to, and vested in, the children, whether heirs or devisees, of the said George Gilmer, deceased, to be by them held and enjoyed according to their respective rights of inheritance or devise under his will, as the case may be, in the same manner as if the said George Gilmer had died seized of the lands in fee simple, and an office had actually been found thereof, saving, however, to a certain John Lambert, who, as heir at law to the said George Harmer, claims the said lands, and to all and every other person or persons, bodies politic and corporate (other than the commonwealth) any right, title or interest, which he or they might or would have had in or to the said lands, or any part thereof, against the said children and devisees, if this act had never been made."

" Section 2. This act shall commence in force from the passing thereof."

"We find that George Harmer was at the time of his death seized in fee of the lands in the

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declaration mentioned, which are of the value of $3,000 dollars, and that George Gilmer, at the time of his death, was seized of the same under the devise to him from the said George Harmer. We find the lease, entry, and ouster in the declaration mentioned. On the whole matter, if the court should be of opinion that the law is for the plaintiff, we find for the plaintiff the lands and tenements in the declaration mentioned, and 20 cents damages, and if the court shall be of opinion that the law is for the defendant, we find for the defendant."

Upon this verdict, the judgment of the court below was for the defendant.

The transcript of the record contains a bill of exceptions by the defendant to the refusal of the court to the admission of testimony to prove that George Harmer, at the time he made the will in favor of Gilmer, declared to the person who wrote it that it was his intention to give Gilmer the fee simple.

There was also an agreement of counsel that if the court should be of opinion that the first will ought not to have been admitted in evidence because not proved before a court of probate, then so much of the verdict as relates to that will should not be considered as forming any part of this case.

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JOHNSON, J.

This is a writ of error from the Circuit Court of Virginia to reverse a judgment in ejectment given for the defendant.

The circumstances of the case come out on a special verdict, from which it appears that George Harmer, under whom both parties claim, was a citizen of the State of Virginia. That on 25 June, 1782, he made a will by which he devised "all the estate both real and personal which [he] possessed or was entitled to in the Commonwealth of Virginia," to certain trustees,

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"in trust and upon these conditions: that when John Harmer [his brother, then] a subject of Great Britain, shall be capable of acquiring property in this country, then they, or the survivor of them, do convey or cause to be conveyed to him, in fee simple a good and indefeasible title in the said estate,"

and in case John Harmer should not be capable of acquiring such right before his death, he then directs the conveyance to be executed to his nephew, the plaintiff, and in case of his not being capable of acquiring lands before his death, he directs the estate to be sold and the proceeds paid over to other relations.

In the year 1786, George Harmer executes another will which, as every part of it is material to the case before us, I will peruse at length. Here he read the will of 1786. 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, viz., in the year 1752, 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 part of the Marrowbone tract. The questions suggested are,

1. 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

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1. The general import and effect of the word "estate" as 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 disposition 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 decision 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

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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 anything 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 everything that he possesses. That such was the particular intention of this testator I think fairly inferable 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 everything that he possessed, both real and personal, in which latter case it would comprise even the lands previously disposed

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of. It follows, therefore, that in the clause in which he proposes 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 Albemarle 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 1/2 acres, called 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, nothing 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

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of the testator in 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 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 its 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 Countess of Bridgewater v. 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.

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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 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 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 pass 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 Horse Pasture and 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 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

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the plain 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 fulfill 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, if ever, used to express more than a local description of the thing itself.

As the opinion of a majority of the Court is in favor of the defendant upon the construction of the will, I do not think it necessary to say anything upon the doctrine of alienage, as that question may possibly come on in some other case in which it must be decided.

PATERSON, J.

The devise in the will of George Harmer was intended to convey some interest in the Marrowbone farm to George Gilmer, and the quantity of interest, whether for life or in fee, is the question now to be considered. It is a fundamental maxim upon which the construction of every will must depend that the intention of the testator as disclosed by the will shall be fully and punctually carried into effect if it be not in contradiction to some established rule of law. In such case the intention must yield to the rule. This intention is to be collected from the instrument itself, and not from extrinsic circumstances, and therefore the

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will of A can afford little or no aid in discovering the intention and expounding the will of B. Indeed, the number of cases which are usually cited in arguments on devises tend to obscure rather than to illuminate. When, however, a particular expression in a will has received a definite meaning by express adjudications, such definite meaning must be adhered to for the sake of uniformity of decision and of security in the disposal of landed property. It cannot be questioned that the word "estate" will carry everything, both the land and the interest in it, unless it be restrained by particular expressions, for "estate" is genus generalissimum, and comprehends both the land and the inheritance. 1 Salk. 236; 6 Mod. 106; Pr.Ch. 264; 2 P.W. 524; Ca.Tem.Talbot 157; 1 Vez. 226; 2 Vez. 179; 3 Atk. 486; 5 Bur. 2638; 1 Term 411. The word "estate" is the most general, significant, and operative that can be used in a will, and according to all the cases may embrace every degree and species of interest. If the word "estate" stand by itself, as if a man devise "all his estate to A," it carries a fee from its established and legal import and operation. Standing thus per se, it marks the intention of the testator, passes the inheritance to the devisee, and controls the rule in favor of the heir at law. It is true that this word, when coupled with things that are personal only, shall be restrained to the personalty. Noscitur a sociis. The word "estate" may also, from the particular phraseology, connected with the apparent intent of the testator, assume a local form and habitation, so as to limit its sense to the land itself. Here uncommon particularity of description is requisite, so as to leave the mind perfectly satisfied that the thing only was in contemplation, and nothing more.

A description merely local cannot be extended beyond locality without departing from the obvious import of the words, and thus making, instead of construing, the will of the testator. But when no words are made use of to manifest the intention of the testator that the term "estate" should be taken not in a general but in a limited signification, then it will pass a fee, because the law declares that it designates and comprehends both the subject and the interest. Nay, such is the legal import and operation of the word "estate" that it carries a fee even when expressions of locality are annexed. To illustrate this position by apposite and adjudged

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cases, if a man in his will says, "I give all my estate in A," it has been held that the whole of the testator's interest in such particular lands passed to the devisee though no words of limitation are added. 2 P. Will. 524. So the word "estate" was held to carry a fee though it denoted locality, "as my estate at Kirby Hall." 2 Atk. 37; Tuffnel v. Page; S.C. Barn. Cha.R. 9. On which Lord Hardwicke observed that though this is a locality, yet the question is whether it is such a locality as is sufficient to show the testator's intention merely to be to convey the lands themselves, and not the interest in them. He was of opinion that the words were descriptive both of the local situation and the quantity of interest. And in Ibbetson v. Beckwith, Lord Talbot observed that the word "estate," in its proper legal sense, means the inheritance, and carries a fee. Why, indeed, may not locality and interest be connected, and the same words express and convey both? To exclude interest in the subject, the expressions coupled with the word "estate" must be so restrictive and local in their nature as to convey solely the idea of locality, and not to comprehend the quantum of interest, without doing violence to the words and intention of the testator. Besides, it is a just remark repeatedly made by Lord Hardwicke and Lord Mansfield that where a general devise of land is narrowed down to an estate for life, the intention of the testator is commonly defeated because people do not distinguish between real and personal property, and indeed "common sense would never teach a man the difference," and therefore judges have endeavored to make the word "estate" in a will amount to a devise of the whole interest unless unequivocal and strong expressions are added to restrict its general signification. It would be a laborious and useless task to enter into a minute and critical investigation of the great variety of cases which bear on this subject. They are collected in a note by the editor of Willes' Reports 296.

From the whole scope and complexion of the will of George Harmer it is evident to my mind that the testator intended to dispose of all his property, both with regard to the quantity and quality thereof. He did not mean to die intestate as to any part of his estate, but on the contrary it was his manifest intention to leave nothing undisposed of by his will. He directs that all his negroes,

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horses, and other property sold, &c., which plainly indicates what his intention was in regard to the lands which he had previously devised. This last clause evinces and illustrates the meaning of the testator, and removes every particle of doubt from my mind as to the true construction which ought to be put on the word "estate." To effectuate this intention, the term "estate" is to be taken in its largest signification as comprehending both the subject and the interest, the land and the inheritance.

Amidst the great mass of cases arising on wills, it is impossible to select any two that are exactly similar. The variety of expressions is infinite, and it is from the language that we are to discover the intent. The same word, indeed, may be taken in a different sense in different wills and even in different parts of the same will owing to its juxtaposition, its associations, and the manner in which it is placed and used. The case of Bailis v. Gale, 2 Vez. 48, may serve to elucidate the devise under review in more points than one. "I give to my son, Charles Gale, all that estate I bought of Mead after the death of my wife." These expressions seem strongly to mark locality, in contradistinction to interest. But what says my Lord Hardwicke?

"I am of opinion that both the thing itself and the estate, property, and interest the testator had pass by the devise. Several questions have arisen in courts of law and equity on devises of this kind, but all the latter determinations have extended and leaned as much as possible to make words of this kind comprehend not only the thing given, but the estate and interest the testator had therein. But it is objected the pronoun 'my' is not added; there was no occasion for it. It was necessary he should use such words as point out the whole interest in the land, which is sufficiently done by the other words, for he bought of Mead the land and the fee simple in the land, which is agreeable to the construction of the word 'estate,' being sufficient to describe the thing and the interest, as it is in the case of 'all my estate.'"

So in the present will the words, "I give all the estate called Marrowbone" contain a description of the land and the interest in it. The case in Vez. is particularly

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applicable and worthy of attention in another respect, as it affords a complete answer to the distinction, which was ingeniously raised and attempted to be sustained between the import of the word "my" and "the," in devises like the present. The counsel for Lambert contended that the word "the," "all the estate," was descriptive of the thing, whereas, the word "my," "all my estate," was descriptive of the interest as well as of the thing. But in the case of Bailis v. Gale, Lord Hardwicke held with great clearness that there was no difference between a devise of all my estate at N and a devise of all the estate at N, and that a fee passed in either case. Nor ought this opinion to be considered as extrajudicial, for the counsel in Bailis v. Gale insisted that the pronoun "my" was necessary to make the devise carry a fee, and therefore it claimed very properly the notice and decision of the court. According to this opinion, a devise of the estate called Marrowbone, in the County of Henry, must have precisely the same construction and effect, as a devise of all my estate called Marrowbone, in the County of Henry, which, it appears to me, would unquestionably give a fee.

Some expressions in a will as "I give my farm, my plantation, my house, my land," do, of themselves, contain no more than a description of the thing, and carry only a estate for life, because unconnected with words of inheritance or other words of a similar import. For we are not permitted to enlarge the estate of a devise unless the words of the devise itself be sufficient for that purpose. In the present devise, the words, "all the estate called Marrowbone" are competent to carry the degree of interest contended for on the part of the defendant, and this construction accords with the intention of the testator as disclosed by his will. Whether it would not have been more beneficial to society to have observed from the first the same technical phraseology and strictness of legal terms in devises as in conveyances of landed property is a question which may amuse the theoretical jurist, but which as judges we cannot seriously discuss, for it is a leading axiom in our system of jurisprudence, not to be shaken by judicial authority,

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that the intent of the testator, so far as it is consistent with the principles of law, must be attended to and control the decision. I am therefore of opinion that the words "I give to George Gilmer all the estate called Marrowbone, in the County of Henry" give a fee, being descriptive equally of the quantity of interest and locality of the thing devised.

CUSHING, J.

The first question in this case is whether the devise to George Gilmer, in the will of George Harmer, made in 1786, carries a fee by the words "all the estate called Marrowbone, in the County of Henry, containing, by estimation, 2,585 acres of land," &c.

Wills are expounded more favorably, to carry the intent of the testator into effect, than conveyances at common law, which take effect in the lifetime of the parties, wills being frequently made by people enfeebled by age or indisposition and without the aid of counsel learned in the law. Therefore words not so technical for the purpose have in a great variety of cases, for above a hundred years, been construed by the judges to carry a fee which would not do so in a deed.

In a number of cases, the word "estate" has been determined to comprehend the whole interest in the land. Among those adduced, there are several which appear to me essentially in point to the present case.

In the case 2 Lev. 91 (a case which has since been held, by good judges, to be good law), a devise of "all my tenant right estate, at B. in Underbarrow," was determined to import a fee.

I see no essential difference between that case and this except the particle "the" instead of the pronoun "my," which, in common sense and in the opinion of Lord Hardwicke, makes no difference. "All the estate" is at least as extensive and comprehensive as "all my estate."

In 2 P. Will. 523, the words "all my lands and estate in Upper Catesby, in Northamptonshire," were adjudged

Page 7 U. S. 139

to carry a fee. That agrees with the case at bar except that the word "lands" precedes "estate," which I think immaterial. "Estate" is the most operative word.

In the case of Bailis v. Gale, 2 Vez. 48, a devise of "all that estate that I bought of Mead" was determined by Lord Hardwicke to be of a fee. This, I think, is substantially like the case at bar, and by him, "that, the," or "my" makes no material difference. Add to this, what seems to make the point conclusive, the testator appears to have a design to dispose of his whole estate.

The other cases cited do not appear to contradict these, but, varying in some circumstances, seem not so directly applicable; yet by the spirit and reasonings attending them they tend to confirm the rectitude of the other decisions which are more directly in point.

The latter part of the devise in question, of several tracts of land immediately succeeding the devise of "all the estate called Marrowbone, in the County of Henry,", &c., if considered as not carrying a fee, I conceive, would not, however, control or restrict the prior part of the devise of "all the estate called Marrowbone," &c. Rather than that, I should suppose the former part would carry spirit and meaning to the latter. But that is not necessary now to be determined.

The first point being determined in favor of the defendant, the former judgment must be affirmed.