Morrison v. Semple

.Tilghman C. J. Judgment was entered in this case, in the Court of Common Pleas, without argument and by consent, in order that it might be brought up for the opinion of this Court. The question is, whether an estate for life or in fee passed to Steele Semple by the will of Samuel Semple. The will is very short and in the following terms: (Here the Chief Justice read the will). The counsel for the defendant in error, placed this case in as strong a light as it [97] would bear, but I have never entertained a doubt on the ^ subject. In whatever point of view it is considered, I perceive a plain intention with apt words to pass a fee simple. Here is a testator with an only child, (a daughter) who had a husband and two children. He makes no mention either of child or grandchild, but speaking of his son-in-law in the most affectionate manner, he gives him the whole of hjs real and personal property, and appoints him his sole executor. What can be concluded from this, but that the testator placing unbounded confidence in the husband intended to put eyery thing in his power. It is inconceivable that with any other intent, he should have observed a profound silence with respect to every other human being. It is a singular instance of confidence, but does not prove that the testator had no affection for his daughter or her issue. It proves that he was convinced of the honour and integrity of his son-in-law, and to an honourable and upright mind no obligation could be stronger than that which this will imposed. What is its language? “ I place every thing that “ is dear to me in your hands. The person and the fortune “ of my child are confided to you. I know that you will “ prove worthy of the trust.” But it is said that intention alone is not sufficient. The heir is not to be disinherited without words sufficient to pass the estate to some other person. It is true that we are not permitted to guess at the intention; it must be ascertained! from the words of the will. But if it can be so ascertained it shall be carried into effect. No technical words are necessary to pass a fee simple. Any expressions which show an intent to give an Absolute estate are sufficient. A devise of land to one for ever, or, “ to dispose of at his will and pleasure,” is a fee; because there is a manifest intent to give a fee. So a devise of one’s estate, or of all one’s right or interest in land, passes a fee for the same reason. The rule is this: Words which only.-describe the object devised,, giye no more than an estate for life; but words which comprehend the quantum of the estate, pass the fee. And this rule is not founded on any artificial principle, but on the plain ground of common sense and fair construction. When a man gives all his estate, it is as much as to/say, all the interest that he has in the subject devised. In the present instance the testator desig [98] nates no particular object, but gives in general, all his real and personal property. I can conceive no expressions more comprehensive.. The giving of the real and personal property by the same words, shews an intent to give the same interest in both, that is to say an absolute interest, for no man ever doubted that those expressions give an absolute interest in personal property. Property signifies the right ■ or. interest which one has in land or chattels. In this sense it is used by the learned and unlearned, by men of all ranks and conditions. We find it so defined in dictionaries, and so understood by the best authors. The possession of land maybe in one man, the property in another. There is a right of possession, and a right of property. Every scrivener who draws a conveyance, mentions not only the land itself, but also “ the right, title, interest and property of the grantor “ of, in, and to the same.” In common conversation we say that such a house or piece of land is the property of such a person. When therefore a man devises all his real property, he devises all the right and interest which he has in any lands or real estate. If he has a right in fee, simple a fee passes, otherwise the will is not complied with; for if the devisee takes but an estate for life, he does not take all but only part of the devisor’s property. Many cases were cited on the argument. I think it unnecessary to take particular notice of any of them. It is a principle undeniable, that when the words of a will indicate an intention to pass the whole interest of the devisor, the devisee shall take' á fee. Being clearly of opinion that such an intention is indicated by the expressions of this will, it follows that Steele Semple took an estate in fee in all the real estate of Samuel Semple. The judgment of the Court of Common Pleas must therefore be reversed, and judgment entered for the plaintiffs in error. Ye ates J. absent in consequence of sickness. Brackenridge J. concurred with the Chief Justice. Judgment reversed.