French v. M'Ilhenny

Upon this day the judges delivered their opinions. Tilchman C. J. This case arises on the will of Seth Rodgers, made the 3d October 1757; and the question is, whether the testator’s nephews took an estate in fee simple in the land devised to them. ' At the time of the argument of this cause in the Circuit Court of Dauphin county, it was supposed that the testator held the land only by warrant and survey, and it is probable that the court relied on that circumstance. Titles of this kind were formerly considered as personal estate; and accordingly it was decided in an anonymous case reported in 3 Dall. 477, that a devise to a man’s son of the “ improvement whereon the testator lived,” without other words, passed a fee simple, because the land was held by warrant only. According to the most accurate account I have been able to obtain, it was about the year 1758, that these equitable titles began first to be considered as real estate. It is now however ascertained that the land in question was held by patent by Seth Rodgers at the time he made his will. It is therefore the common case of a devise by a person seised of the legal estate in fee simple. The testator begins his will with the usual introductory clause, “ as for such worldly estate wherewith it has pleased u God to bless me in this life, I give, dispose and bequeath “ the same in the following manner.” He then gives his wife one half of his plantation during her natural life; and then, after giving several legacies, comes the devise to his nephews in the following words. “ Also to my nephew Seth “ Rodgers two thirds of my plantation, excepting what is “ above to my wife already willed. Also to my nephew “ Robert aforesaid, one third of my plantation, excepting also “ what is above willed to my wife.” After this follow legacies of money to several persons which it appears by the expressions of the will, the testator intended to include the whole of his personal estate. If I was at liberty to indulge my own conjectures', I should -think it probable that the testator intended to give a fee — 19 — feinipíe to his nephews. But as this is only a conjecture, 1 know not how to get over a principle which seems well established, viz. that the inheritance shall not be taken from the heir, unless the devise contains either proper words to create a fee simple, (to the devisee and his heirs) or words which have been construed as tantamount, as to the devisee for ever, or all his estate in the land to the devisee; or unless in some other part of the will an intent is manifested inconsistent with a less estate than a fee simple, as if the devisee is directed to pay a sum of money to a third person*, Now there are no words of that kind in this will. It is a simple devise of a plantation, excepting what had been given to the wife, which as much as to say, subject to the devise of one half of the said plantation before made to the wife for life*, There are indeed the introductory words, shewing an intention to dispose of all the estate; but although such words have been relied on, in conjunction with others, yet they have not of themselves the force to give a fee simple. The last case adjudged in England, which is an authority upon this subject, is Mudge’s Lessee v. Blight, in the year 1775. Cowp. 352. Lord Mansfield in delivering his opinion, declares, that where there are no words of limitation, the devisee can take only for life, because the principle is fully settled, and no conjecture of a private imagination can shake a rule of law. If the intent is doubtful, the rule must take place; so must it, if the Court cannot find words to carry a fee, though they have no doubt of the intent. Introductory words alone, will not do. "The opinion of Lord Mansfeld is entitled to great weight, because the liberality of his mind in general, and his strong inclination to carry the testator’s intent into effect without regard to form, is well known. Subsequent decisions in England, though not to be regarded as authority, shew that the opinion just recited is still considered as law there. In Mitchell's Lessee v. Sidebotham, Doug. 730. the testator devised “ all his lands, tenements, and houses in the parish of C.;’ the will had the introductory words sometimes relied on, and a devise of one shilling to the heir at law, which was certainly a strong circumstance to shew that it was intended the heir should have nothing but a shilling; but it was determined that the devisee took — 20 — only an estate for life. In the Lessee of Gaskin v. Gaskin, Cowp. 657, there was the same decision, although there were the introductory words, a devise of one shilling to the heir, and a devise of all the residue of the personal estate. In this case, Justice Aston cited Wright, Lessee of Shaw v. Russel, determined in the exchequer in 1761. After the introductory words, there was a devise of a house to testator’s grandson A. and after his decease to his two sons B. and C., and a devise of one shilling to the husband of the heir at law; held, that B. and C. took only for life. In Moor’s Lessee v. Mellor, 2 Bos. & Pul. 247. and 5 D. & E. 558, the same principle was decided by the court of King’s Bench, and affirmed on a writ of error in the house of lords. I think the principle of not disinheriting the heir without sufficient words, ought if possible to be more strictly observed here than in England; because there the eldest son is the heir, but here the law is more equitable, and all the children together are considered as heirs. The case of Lambert’s Lessee v. Paine, 3 Cranch 97. decided by the Supreme Court of the United States, was cited on the argument of this case. It was a devise of “ all the estate “ called Marrowbotte in the county of Henry containing by “ estimation 2500 acres.” Three judges, against Judge Washington, held that the devisee took a fee. This opinion was founded solely on the import of the word estate, which has been held to refer not only to the local situation of the land, but to the interest which the testator had in it. The word plantation never was construed in that sense; and it is worthy of remark that Judge Patterson, in giving his opinion in Lambert v. Paine, thus expresses himself: “ some expres- “ sions in a will, as I give my farm, my plantation, my house, “ my land, do of themselves contain no more than a descrip- “ tion of the thirig, and carry only an estate for life.” On the same principle (the import of the word estate) was decided the case of Wilson v. Wilson, before Judge Teates at the Circuit Court of Dauphm county, September 1805. The testator devised “ all his real estate” to his five nephews, each share and share alike. In considering the case now before us, I confess it was my wish to find words which might authorize the opinion — 21 — that the testator’s nephews Seth and Robert Rodgers took an estate in fee; but I can find no words which can be so con- ' strued, without breaking down an established principle, and thus opening a door for uncertainty and confusion. I am therefore of opinion that they took no more than an estate for life in the land devised to them, and that the judgment of the Circuit Court be reversed. Brackenridge J. stated the material devises, and then proceeded as follows: Were we at liberty to construe the above words as we would construe the words of any other writing, no doubt could be entertained but that the testator by giving the plantation, or giving any part of it, intended that gift to be to the extent of the interest he had in it. Because such is the meaning and acceptation of the terms, in conversation and in writing. It would be so understood by the people. But it will be said we are not at liberty to construe a will, according to the common meaning of the words; but according to the technical acceptation of the terms. It is a maxim, that the intention of the testator shall prevail; yet that must be consistent not only with the rules of law as to the extent of his gift, but with the rules of construction as to what he does give. This restraint upon alienation by devise, was unknown to the Roman law, and had no place in our law with regard to devises of goods and chattels. It would seem to have come from the strictness of the common law conveyance, the courts going a certain length in applying the rules of construction in one case to the other; not so far as to say “ that words of inheritance shall be ne- “ cessary to give a fee, or words of procreation an estate tail,” 2 Black. Com. 381.; yet so far as to say, that the popular acceptation of a term shall give Way to technical construction, however inconsistent this with what is laid down by the same writer, in the same place, “ that a devise be favourably expounded to pursue if possible the will of the devisor, who for want of advice or learning may have omitted the proper or legal phrases.” In Perrin v. Blake, Lord Mansfield observes, “ that as the “ law allows a free communication of intention to the testa- “ tor, it would be a strange law to say, now you have com22 “ municated that intention so as every body understand^ “ what you mean, yet because you have not used a certain “ expression of art, we will cross your intention, and give “ your will a different construction, though what you mean “ to have done is perfectly legal; the only reason for contra- “ vening you, is because you have not expressed yourself as “ a lawyer.” Yet on a writ of érror in the exchequer chamber the contrary doctrine prevailed; and it was held to be the principle, “ that the testator shall be permitted to fulfil “ his intention, so far as such construction is consistent with “ the established rules of construction.” Collec. fur. 229. The inconsistency of this principle with that of “ serving “ the intention” was such, that from an early period we find the courts giving a meaning to terms in support of the intention, which they technically had not before that time; as that the Word estate shall be construed to give a fee; “ that “ it shall be- understood to comprehend, not only the thing, “ but the interest in it.” 2 Peere Will. 524. So in 3 Peere Will. 295, where temporal estate is said to mean -worldly estate, and the rest of my estate, temporal estate, which without the word heirs would have sufficed to pass a fee. And in 1 Wilson 333, after the introductory words, “ all my temporal estate,” a devise of “ all the rest of my goods and “ chattels, real and personal, moveable and immoveable, as “ houses, gardens, tenements,” without making use of the word estate, or any words of limitation, was held to give a fee. In Brown v. Taylor, 1 Burrows 270, the word legacy by relation is construed to carry land. Lord Mansfield says “ this “ is plainly a will of the man’s own drawing. The explana- “ tion of the word legacy, must be governed by the inten- “ tion of the testator; and to this purpose some stress may “ be laid upon this introduction of the professed disposition “ of all his ‘ worldly estate.’ Common people do not make “ a distinction between money and land.” Yet in the case of Mitchell v. Sidebotham, Doug. 730, this freedom of thinking would seem to have been restrained somewhat; for in this case, which was, “ I give and bequeath “ to A. all my lands at Cf it was held that an estate for life only was given, notwithstanding the introductory words, u for those worldly goods and estate with which it has — 23 — “ pleased God to bless me.” “ I verily believe,” says Lord Mansfield', “ that in almost every case, where by law a general" “ devise of lands is reduced to an estate for life, the intent of “ the testator is thwarted; for ordinary people do not distin- “ guish between real and personal property. The rule of law “ however, is established and certain, that express words of “ limitation, or words tantamount, are necessary to pass an es- “ tate of inheritance.c All my estate’ orf all my interest’ will “ do: but ‘ all my lands lying in such a place,’ is not sufficient. “ Such words are considered descriptive merely of the local “ situation, and only carry an estate for life. Nor are words “ tending to disinherit the heir at law sufficient to prevent his “ taking, unless the estate is given to somebody else.” In Hogan v. Jackson, Cowp. 307, he again admits this rule of construction, which by analogy to the law of conveyance would seem to have been adopted to some extent in the construction of devises; but he shews an astutia in giving a technical meaning to popular language in order to support the intention. It may be worth while to give his words at some length. “ The law of England formerly admitted of no tes- “ tamentary dispositions of real property. This restriction “ took place on the introduction of military tenures, and was “ a branch of the feodal doctrine of non-alienation without “ the consent of the Lord. But when the rigor of the re- “ striction became by degrees to be relaxed, and tenants were (l permitted to make dispositions by testament, a devise of w land operated as an appointment to uses, in nature of a u legal conveyance. As such, the courts of law in the con- “ struction of them, held, that a devise affecting lands could “ operate only on such real estates as the testator had at the “ time of executing and publishing his will, and not upon “ any after purchased or acquired lands; because there M could be no legal conveyance at common law of what a “ man should acquire in future. Another distinction, found- “ ed upon the notion that a will affecting lands is merely a “ species of conveyance, and derived from the same source, “ is this. The law of England, in the conveyance of real “ estates, requires words of limitation in the donation or “ grant, to the creation of a fee. Without the word heirs, “ general or special, no man can create a fee at common law u by conveyance. When wills therefore were introduced. — 24 — “ and devises of real property began to prevail, being con- “ sidered as a species of conveyance, they were to be govern- “ ed by the same rule. Therefore, by analogy to that rule, “ in the construction of devises, if there be no words of “ limitation added, nor words of perpetuity annexed, which “ have been held tantamount, so as to denote the intention of “ the testator to convey the inheritance to the devisee, he “ can only take an estate for life. For instance, if a testator “ by his will says, I give my lands, or such and such lands “to A.; if no words of limitation are added, A. has only “ an estate for life. Generally speaking, no common person “ has the smallest idea of any difference between giving a “ person a horse and a quantity of land. Common sense “ alone could never teach a man the difference; but the dis- “ tinction now clearly established, is this, if the words of the “ testator denote only a description of the specific estate or “ lands devised, in that case, if no words of limitation are “ added, the devisee has only an estate for life. But if the “ words denote the quantum of interest or property that the “ testátor has in the lands devised, there, the whole extent “ of such his interest passes by his gift to the devisee. The “ question therefore, is always a question of construction, “ upon the words and terms used by the testator. It is now “ clearly settled, that the words 1 all his estate’ will pass “ every thing a man has: but if the word ‘ all’ is coupled “ with the word ‘ persona/’ or a local description, there, the “ gift will pass only personalty, or the specific estate parti- “ cularly described.” In Fletcher v. Smiton, 2 Term Rep. 656. it was determined that the word estates in a will, carries a fee, unless coupled with other words which shew a different intention. Lord Kenyon says, “ there are cases in which nice distinc- “ tions have been taken between a devise of an estate at such “ a place, and a devise of an estate in a particular place; and “ Lord Hardwicke alluded to it in the case cited from Vesey; “ but he added, that there is no case in which it was held “ that a fee passed by the devise of an estate, if the testator “ added to it, 1 in the occupation of any particular tenant.” “ And I admit that the word ‘ estate’ may be so coupled “ with other words as to explain the general sense in which “ it would otherwise be taken, and to confine it to mean — 25 — “ farms and tenements. The word 4 estates’ has been held 44 equivalent to 4 estate,’ unless other words be added to ex-44 press a different intention. In the case of Tilley v. Simpson, in the Court of Chancery, E. 1746, Lord Hardivicke 44 said, it would be productive of bad consequences to con-44 fine the devise to a chattel interest, unless there were other 44 words to shew that it was so intended to be restrained.” Buller J. — 44 This is a question merely on the intention of 44 the testator; and I think it is apparent, on reading the 44 whole, that it was his intention that every thing he had, 44 should pass by it.” Grose J. — 44 Where-the devisor inten44 ded to confine the operation of the word 4 estates,’ he ad-44 ded, 4 for life;’ but in the latter clause there are no words 44 of restraint added.” In a note to this case, we find a reference to that of Tilley v. Simpson in Chancery, Easter 1746. The testator, after declaring that he intended to dispose of all his worldly estate, and making several devises to different persons, gave and bequeathed all the rest and residue of his money, goods, chattels and estate whatsoever to his nephew A. B. The question was, whether a beneficial interest in a real estate not before disposed of, would pass to the nephew by this devise. Lord Hardwicke chancellor, was of opinion that it would. He said, 44 where the court have restrained the word estate to 44 carry personal estate only, hath been where it hath ap44 peared that it was the intention of the testator it should be 44 so undei'stood.” Yet in Moor v. Mellor, 5 T. R. 559, where the devise was 44 all the rest of my lands and tenements,” it was determined that but an estate for life passed. Lord Kenyon said, 44 had 44 there not been such a current of authorities as we find 44 in the books, since the passing of the statute of wills, to 44 further (as it has been called) the intention of the testator, 44 perhaps it would have been better if the same strict words 44 had been required in testamentary dispositions of land as 44 in those by deed; because then the language of passing 44 estates would have been so familiar that few questions 44 would have arisen on wills. For it has been often observed, 44 that few questions arise on the construction of deeds, when 44 compared to those which daily arise on wills. But we are 44 bound to consider the series of authorities on this subject — 26 — “ as the law of the land; and it would be extremely danger- “ ous, now, to remove those landmarks of real property, on “ which mankind ha\ e acted for such a length of time. In “ many of the cases that have been litigated, and in which it “ has been decided that the first devisee was only entitled “ to a life estate, one cannot but suspect, privately speaking, “ that it was the intention of the devisor to give the absolute^ “ property to the first taker; and Lord Mansfield used to “ observe that the common class of men imagined that they “ could give a fee simple by the same words that are suffi- “ cient to give a piece of plate. But the contrary of such a “ supposition has now been decided by so many authorities, “ that it would be dangerous to shake them; and in deciding “ on the construction of wills, we must not indulge in conjectures or wishes, but determine on the words used ac- “ cording to those authorities. Where the word ‘ estate’ has ^ occurred, that word has been held ex vi termini to pass a “ fee. The courts indeed have gone as far as they could, to “ give the absolute interest to the first devisee: but there are “ certain limits which they have put upon their construction “ of wills, and we must take care not to transgress them. “ Privately speaking, I think the devisor meant to give an “ estate in fee to his wife, but we are compelled by the au- “ thorities to say that she only took an estate for life.” Grose J. — “ In the construction of wills, we must be guided “ by those rules which we find established in former cases. “ And one rule is clear, that the heir at law is not to be “ disinherited, unless the devisor’s intention to disinherit him “ can be collected from the words of the will. What is a u sufficient proof of that intention, is not indeed accurately “ defined, as applicable to every case that may arise: but “ there are some rules laid down upon this subject, to which “ we are bound to adhere; and one of them is, that if a man “ give his house to A. without other words, it is only a de- “ vise for life, whatever may be our conjecture of the devi- “ sor’s intention. On the authority of the cases alluded to, I “ am compelled to say that in this case the widow took only “ an estate for life.” In Palmer v. Richards, 3 T. R. 356, Lord Kenyon says, “ the court will not anxiously seek for words to disinherit “ the heir at law, though they will endeavour to give effect “ to the intention of the testator. No person who reads this — 27 — u will, except a lawyer, can have any doubt on the meaning “ of it.” Buller J. — “ There is hardly any 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. But such is the rule of law, that unless some words “ are used which the law considers sufficient to carry a fee, “ the devisee can only take an estate for life, though indeed “ slight expressions are sufficient to pass the” inheritance, “ where the Court thinks that such is the devisor’s intention. “ No technical words are necessary in a will to give a fee; “ but if any words are inserted to effectuate which it is “ necessary that a fee should pass, that is sufficient.” In Childwife v. Wright and others, 8 T. R. 67, there was a devise of all estate, lands, &c. lying and being, &c. Lord Kenyon observes that “ it has been frequently lamen- “ ted that the same technical words were, not required in “ wills as in deeds; because had such a rule been adopted, “ few questions .would have arisen on the construction of “ wills. Certain rules have been adopted by which the real “ property of this country has been governed for ages, and “ it would be too much for us now to overthrow them. I am “ therefore of opinion that J. W. only took. an estate for “ life.” And Ashhurst J. remarks that “ it is better for the “ public that the intention of one individual should be de- “ feated, than a series of decisions on which the property of “ this country depends should be shaken. Stare decisis is a “ maxim in our law. Where there is a general devise of lands “ without any words of inheritance, the law says the devisee “ shall only take an estate for life, and such is the present “ case.” I would ask whether it has not been as much lamented, or at least as lamentable, that the maxim of debet intentioni servire had ever been broken in upon in the case of wills, by introducing the idea of a technical construction; and whether that has not been the cause of the uncertainty. That the compound construction of the common acceptation of terms-, and the technical meaning, has been the cause of uncertainty, no one can doubt. In 2 Peere Will. 741, in the argument of sir Joseph Jek-yl as master of the rolls, we have these observations: “ I am sensible there is a diversity of opinions. — 28 — “ among the learned judges of the present time, whether the “■ legal operation of words in a will, or the intent of the tes- “ 'tator, should prevail? For my part, I shall always contend “ for the intention where it is plain, and I think the strongest “ authorities are on that side; for if the intention is sometimes “ to govern, as it is admitted it must, and not always give “ way to the legal, construction, and yet at other times shall “ not govern, there will then be no rule to judge by, nor will “ any lawyer know how to advise his client; a mischief which-“judges ought to prevent.” The same question arising from the same will, where the same plaintiff was defendant, was argued and decided in the Court of Common Pleas, seven years afterwards, and is reported 1 Bos. & Pul. N. S. 342, where sir James MansJield expresses himself thus: “This case has been long de- “ pending, not so much on account of any doubts entertained “ by my brothers, as by myself, the rest of the Court being f‘ of opinion that the defendant is entitled to judgment; “ and though I now defer to the opinion of my brothers and “ the judges of the Court of Ring’s Bench, yet I must “ declare that if it had fallen to my lot onty to decide the “ case, I should have decided it in favour of the lessor “ of the plaintiff. Though I am bound therefore to say “ that this-is still my opinion, yet I entertain it with great “ doubts of its solidity. Many cases have been cited, on “ which it would be wasting time to observe. My brother “ Heath, indeed, has furnished me with a case which is “ stronger than any, but to which I never could have agreed. “ In almost all the cases where questions of this sort have “ arisen, it has been next to impossible, out of a court of “justice, to doubt of the testator’s intention to give the thing “ absolutely to the devisee. When a man gives a house, he “ supposes that he gives it in the same manner as he gives a “ personal chattel. On the other hand, it may be said, that “ as the common sense of mankind proves the intention to “ give an absolute estate, particular circumstances indicating “ such intention cannot prove it more strongly than the “ genei-al devise; and that nothing therefore ought to be “ relied upon but express words in the will. And this cer- “ tainly is the safest side; for it cannot be denied that where “ wills are interpreted on the force of particular circum29 “ stances, indicating particular intentions, decisions so “ founded are more likely to lead to litigation than those “ which are founded upon adherence to the general rule, “ that unless there be express words of limitation, or some- “ thing which renders it necessary to give an estate of inhe- “ ritance, the heir at law shall not be disinherited. Whenever “ a case is decided on circumstances, others, who are to “ judge afterwards, may receive a different impression from “ the same case; whereas the adherence to a general rule is “ more calculated to avoid uncertainty. I am bound to think “ that the opinion of my brothers is founded on more solid “ grounds than mine.” The weight of seven judges against him, the foiir judges of the Court of King’s Bench, in the case before determined, and his three associates in the Court of Common Pleas, in the present case, led him to concede this; but I think the time not far distant, when even in those courts the rule will be otherwise. The sense which would strike the common mind generally, will be the test of the meaning. In Burnsal v. Davy, 1 Bos. & Pul. Chief Justice Eyre, says, “ Technical rules are not to be relied on in explaining “ the intention of testators, and yet cases of intention are “ much embarrassed by authoritiesBut in Moor v. Mellor, 2 Bos. & Pul. 250, M'Donald,, Chief Baron, who delivered the opinion of the judges in camera procerum, lays it down, “ that in order to preserve uniformity, and consequently “ security, in administering the law of real property devised “ by will, it is necessary that the sense which has been put “ upon particular modes of expression should be adhered to.” In Braidon v. Page, in a note to 1 Bos. & Pul. 261, Lord Mansfield is reported to have said, “ that there is hardly an “ instance, where the words of a devise are restrained to a “ life estate only, in which the intention of the testator is “ not contravened; for common men are ignorant of the “ difference between land and money. This being so, the “ courts have been astute to find out if possible from other “ parts of the will, the intention of the testator.” And in the case to which this is a note, Chief Justice Eyre says, “I “ think that we do not want the authority of cases at this “ time of day, to establish the rule of law, that in the con- “ struction of a will, whether the words used be technical or — 30 — “ not technical, or even of vulgar and common parlance, the “ court is to put that sense upon them, in which, on a fair “ consideration of the whole context, they collect that the “ testator intended to use them.” But to come nearer home, I extract the note of Judge Tucker to his 2 Black. Com. where he quotes Pendleton President, as follows: “ that the intention of the testator is “ to give the rule of construction, is declared by all the “judges both ancient and modern; but the judges, after “ laying down the true rule built upon intention, unfortu- “ nately 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 struggled to untie. It -would “ have been better to have cut it at once.” What has been the doctrine on this head in the state of Pennsylvania? From the case in 3 Dall. 4//, the devise was to “ my son James the improvement whereon I now live.” The premises were held by warrant; and the only question was, whether an estate for life or in fee vested in the testator’s son James by the devise. The court decided that the devisee took an estate in fee. This decision is under the year 1798, and in the Supreme Court. The will under which the lessor of the plaintiff claimed, is stated to be of the 8th of October 1745. Whether this decision was on the ground of considering the subject of the devise real property, or but a chattel interest, does not appear; though how it could be considered otherwise than as real estate, though with but an equitable title, I do not know. A bare improvement might have been considered as a chattel interest at a certain period, and I believe was by some, so that an inquisition was not necessary to condemn; but I do not know that any idea of this kind prevailed, where there was the inception of an office right. Be that as it may, lam prepared to go the whole length of declaring independence of the decisions ofthe English courts^ subjecting the construction of a will to technical rules. In this case however it may not be necessary, if the technical construction will support the intention of the testator. There is left to the widow one half of the plantation during her natural life; to Seth two thirds of the plantation, except what is above to the wife already willed; and to Robert one third, &c. This must be a remainder of at least one half of — 31 — the plantation. Will not such a devise in remainder carry a fee? According to Wallace v. Jackson, Cowper 290, on a devise of lands to the mother during her natural life, and after legacies and annuities to the heir at law and to several relations, a devise to the mother of “ all the remainder and “ residue of all his effects real and personal,” the mother took a fee simple by this residuary clause, in all the testator’s fee simple estates. It must be admitted there was a technical term in this case, effects, which had been holden to be equivalent to estate, and to carry a fee; and also the words “ remainder” and “ residue;” and the stress of the decision in,favour of the widow is laid upon these words. But it seems to be a rule, of even technical construction, that if it can be collected from the words of the will, what were the ideas of the testator with regard to the effect of the terms used by him, that sense shall prevail. In Bowes v. Blacket, Cowp. 239, Lord Mansfield agrees that “ if from the whole of the will taken together, and ap- “ plied to the subject matter of the devise, it can be found “ that the testator’s intention was to give a fee, it has been « very properly and very truly admitted at the bar, that it “ ought to be so construed as to give effect to such inten- “ tion.” Now it is clear from the limitation tb the widow during her natural life, that he had conceived that but for this, the giving one half of the plantation would have carried a fee of that half. Independent therefore of the ordinary use of language, there is here evidence, ex visceribus testamenti, of the extent and meaning affixed in the mind of the testator to the devise of a plantation. It follows, by necessary implication from the qualification, that he thought, that by giving a plantation, without saying more, he would give a fee. It may seem, therefore, that we have at least some countenance from the rules of technical construction, and that we are not altogether without legal help in eliciting the testator’s intention in this case. At a dead lift therefore, I think this may do: and that without infringing on the doctrine of the cabala in substance, we may say that, by the word plantation a fee under this will may pass, since the expressio unius, natural life, est inclusio alterius, which must be something more; and if any thing more, it cannot be less than a fee. — 32 — I should, be much better satisfied to go back at once, an<^ ^egin where the courts have gone wrong-, and to take the meaning of- a will as I would that of any other writing-. It will not bear examination to say, that this will lead to controversy; or if it did, how does it reconcile contradiction, to say that intention shall govern, and yet set it aside. It is inconsistent with the nature of the case to suppose, that a man in extremis can have the benefit of legal assistance, or that in ordinary cases, where he does not call for it, he ever thinks of legal terms or the want of them; he uses the words of common language, and ought to be so understood. Courts will differ about the meaning and effect of a legal term, and there is a much greater chance of a concurrence of opinion on the popular import of a word. I am confident there will be a beginning some time of emancipation from this affectation of mystery, in a science which has its foundation in reason and common sense. As to estates having passed under this or that will, and the decisions thereupon, let what has taken place stand; why should it affect wills yet to be construed, or yet to be made? And this is the only consideration that can 'stand in the way, or can constitute an impediment. In the case before us the particular estate hewn out of the whole, the one half of the plantation to the,xoife during her natural life, and the devise of two thirds to Seth, and one third to Robert, excepting xvhatwas devised to the xuife, implies a devise of all but xvhat is excepted, and this is a fee simple in the whole after the expiration of the life estate. On the breaking of this case, and on the argument, I was inclined to think that on. the decisions of the English courts, there was but a life estate by the words of the devise; but of the intention I had no doubt; and with a willingness to support the intention, I may perhaps have gone farther than the strictness of technical construction in the English courts may warrant. But upon the whole, in support of the intention in this case, I will venture to give judgment for the plaintiff. The Court being thus divided in opinion, Mr. Duncan for the defendant .observed, that judgment could not be entered for the plaintiffs unless a majority of the court concurred therein; the judgment in the Circuit Court having been — 33 — entered by consent, without prejudice, and without even hearing an argument on the part of the defendant. Ye ates J. thereupon said, that he thought the case had come up by appeal from the opinion he had delivered, though the defendant’s counsel had not argued the case. But if any misunderstanding prevailed on that point, he had no hesitation in declaring that he adhered to the opinion he had formerly given. The introductory words in the will he looked upon as a strong circumstance, when aided by the manner in which the testator had devised his plantation. When he meant to give an estate for life therein, he expressly said so; and his silence as to the extent of the estate devised to his two nephews, evinced that he meant to give them an estate in fee simple, as fully and absolutely as he himself held it. Judging on the whole of the will, he apprehended that the intention of the testator might be fairly collected from thence to give his nephews an estate of inheritance in his plantation, without infringing the settled rules of construction of wills, which had obtained either here or in the English courts. Judgment affirmed.