1 Read in this connection pp. 527-529 only. - Ed.
(7.) Effect if the Words of Inheritance be in the Covenants Only.
30 New Jersey Law, 505. - 1860. [Reported herein at p. 483.]
b. Inter vivos - under modern statutes.
(1) Some of these statutes declare that the word "heirs" shall not be necessary in order to create or to convey a fee, but leave the estate created in the particular case to be determined by construction without any guiding rule of presumption.
(2) Other statutes provide that a grant of real property shall pass all the estate or interest of the grantor unless the intent to pass a less estate or interest shall appear by the express terms of the grant or by necessary implication therefrom.1
c. By devise under the ancient "statute of wills" JACKSON ex dem.
9 Johnson (N. Y.), 222. - 1812.
Ejectment. A verdict was taken for plaintiff, subject to the opinion of this court.
Per Curiam. - Upon this will it is clear, upon the established principles of construction, that the defendant's father took only an estate for life. The words of the will are, "I give and bequeath unto my eldest son, Daniel Wells, all that part of a lot of land that I now live on [northward of the north road and also three lots on the broad meadow].''
1 N. Y. R. P. L. §§ 205, 210. - Ed.
Here are no words of limitation or perpetuity, though it appears, from other parts of the will, that the testator understood their force and effect, and knew how to use them; nor is there a single word or expression, which denotes anything more than a description of the land devised. There is nothing which alludes to the quantity of interest which the testator had in the land. It is a mere designation of its local situation, and to give this devise the effect of a fee would overset a volume of adjudged cases, and throw the law of devises into inextricable confusion and uncertainty. The cases of Denn v. Gaskin, Cowp. 657; Right v. Sidebotham, Doug. 759; Doe v. Wright, 8 Term Rep. 64, and Doc v. Child and Wife, 4 Bos. & Pull. 335, may be cited out of an almost endless series of authorities, as very much in point, and perfectly decisive.
The next question is, whether the remainder of the testator's interest in the premises, after the termination of the life estate, was not devised to the lessor of the plaintiff. He gives to the lessor, in fee, "all the rest of his estate, both movable and immovable, of every kind not disposed of," and then charges it with some debts and legacies, and in default of his paying the same, the testator directs that so much of the estate so devised to him, should be sold, as should be requisite to pay the debts and legacies. This point is as clear as the other. All the rest of his estate, not disposed of, is a general, sweeping clause, that must most obviously embrace the interest in question. After this clause, there could be no dying intestate as to any part of the estate. The authority to the executors to sell any part of his estate on nonpayment of the debts and legacies, cannot be considered as a restraint or qualification of the residuary clause, so as to detach the interest in question from it; for an interest in remainder is capable of being sold no less than a vested interest.
Judgment for plaintiff.
6 Binney (Pa.), 94. - 1813.
Ejectment brought by the guardian of Edward and Sarah Semple against Morrison and others.
One Samuel Semple left a last will and testament by which he gave all his "real and personal property" to Steele Semple, under whom defendants below (Morrison and others) claim Plaintiffs below claim the land in question as heirs of Samuel Semple, asserting that
Steele Semple (who is now dead) took only a life estate therein. The judgment below was for the Semples. Morrison appeals.
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 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 his 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 every 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 honor and integrity of his son-in-law, and to an honorable 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 forever, 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 give 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 designates 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, shows 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 may be 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 a 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.