Doe, on the demise of Chamberlain v. Owings

GrasoN, J., delivered the opinion of the Court. The question presented for the consideration of this Court upon this appeal, arises upon the construction of that clause in the -will of John C. E. B. Boone, which is in the following words: “ I give unto my daughter, Eleanor Parlot Boone, one-half of all my household stuff, wagon and horses, and all cattle, together with all farming utensils; likewise, one-half of all and everything that shall fall to me, the said John C. E. B. Boone, at my mother, Sarah Boone’s decease.” The question to be determined is whether Eleanor Parlot Boone took a fee or a life estate in one-half of that land which had been devised by the will of Thomas Boone, to his wife, Sarah Boone, for life. In construing wills, the intention of the [454] testator, to be gathered from the whole will, is to prevail, if that can be accomplished 'consistently with the rules of law. “ The word heirs need not be used to create an estate in fee, nor any technical terms, nor any particular form of words; but any words sufficiently showing the intention of the testator to dispose of his whole interest in the thing devised, will have the same effect as a devise to one in fee-simple or forever, or any other words having the same import.” Dougherty, et al. vs. Monett’s Lessee, 5 G. & J., 461. When the intention of the testator does not clearly appear from the words used in a clause of a will which is to be construed, then a resort may be had to the introductory clause, if there be one, to explain their meaning, and if, by it is manifested an intention upon the part of the testator, to dispose of the whole of his estate, the words in the clause to be construed, which otherwise would be of doubtful meaning, and consequently not sufficient to pass the fee, shall be taken in that sense which accords with the intention expressed in the introductory clause, and will pass the inheritance and give effect to all parts of the will. Beall vs. Holmes, 6 H. & J., 210. Looking to the introductory clause of the will now under consideration, it is perfectly manifest that the testator intended to dispose of his whole estate, and to die intestate of no part of it. That clause is in the following words: “ and as touching such worldly estate wherewith it hath pleased God to bless me in this life, I give, devise and dispose of the same in manner and form, followingshowing a clear intention to dispose of the whole of his estate. This being his intention, are the words used in the devise to Eleanor Parlot Boone, sufficient to pass the fee ? It is well settled that the words “ estate ” and “ property ” used in a devise will carry the fee. Beall vs. Holmes, 6 H. & J., 208, and the cases there cited. It has also been held that the words “ all I have,” “all I am worth,” “everything I die possessed of,” will pass the fee. Huxtep vs. Brooman, 1 Brown’s C. C., 437; Davenport vs. Coltman, 9 M. & Wels., 481. Having the intention of [455] the testator plainly and clearly manifested in the introductory clause of the will, to dispose of his whole estate, the words “ all and everything,” are sufficient to pass the fee. They are of similar import, and as comprehensive as the expressions “ all I have,” “ all I am worth,” or “ everything I may die possessed of.” In the case of Beall vs. Holmes, at page 227, Judge BuchaNAN, who delivered the opinion of the Court, in reviewing the case of Owings vs. Reynolds, in 3 H. & McH., says that in that case the expressions in the introductory clause were, “ as to what it has pleased G-od to bless me with,” by which, he says: “ it is clearly manifested that the testator had the whole of his property in view, as if the word estate had been used; the word what having reference to everything he had, and the will itself containing devises of real as well as bequests of personal property.” If the word “ what ” had reference to everything, the testator had, and was equivalent to the word “estate,” how can it be contended that the words “ all and everything ” are not equivalent to the word “ estate?” The clause of the will now under consideration, devises to Eleanor Parlot Boone, “ one-half of all and everything ” that shall fall to the testator at the death of his mother, and the terms used are as effective to pass to her the fee in the one-half of the lands, which would fall to him at his mother’s death, as if he had devised to her one-half of all the estate which would fall to him at his mother’s death. But it was contended that inasmuch as the devise to Stephen Parlot Boone, was to him and his heirs, it followed that the testator knew what terms were requisite to pass the fee, and therefore, that the omission of such terms in the devise to Eleanor, indicated an intention to give her but a life estate in the lands devised to her. In this view we cannot concur. Having shown that it was the manifest intention of the testator to dispose of his whole estate, and that he used words sufficient in law to pass the fee in his devise to Eleanor, and that it was his intention to give her the fee, the omission to use technical words of inheritance is to be attributed to the [456] want of skill in the testator or draftsman, and not to an intention to give her but a life estate; and this view of the case is strengthened by the fact that it very clearly appears from the will that Stephen and Eleanor, of whom he speaks as his “ son ” and “ daughter,” were the principal, and almost the sole objects of his bounty. In the case of Burke and Fattle vs. Chamberlain, 22 Md., 310, Chief Justice Bowie, in delivering the opinion of the Court, construed this particular clause of John C. E. B. Boone’s will, so as to pass the fee to Eleanor Parlot Boone; and, although this clause of the will was not involved in that case, yet the views expressed upon it at that time commend themselves to the approval of this Court. (Decided 14th April, 1869.) - Since that decision, it is too late to contend that the devises to Stephen and Eleanor do not pass real estate, that decision having determined otherwise. From these views, it follows that the prayer of the appellant' was properly rejected, and that the judgment of the Court below must be affirmed. Judgment affirmed.