23 Wendell (N. Y.), 452. - 1840.
EJECTMENT by the heirs-at-law of Prudence Taplin to recover of defendant certain lands devised to her by the will of her husband. Defendants allege that Prudence took only a life estate under said will. Verdict below for plaintiffs, subject to the opinion of this court.
By THE Court, Cowen, J. - This ejectment seems to have been brought on the authority of Loveacres ex Jem. Mudge v. Blight, Cowp. 352, decided in 1775. The introductory and devising clauses in that case cannot, as the counsel for both parties in the principal case seem to agree, be distinguished in their import from the words used in the will before us; and they were held to carry a fee. But it is very plain, as the counsel for the defendant contends, that this was not in virtue of their own proper force. They were helped by various other parts of the. will; among others, there was a charge on the land incompatible with the idea of a mere estate for life. That is mentioned and much relied on by Lord Mansfield; and, as is well known to the profession, has often been considered of itself decisive in enlarging the estate to a fee. The will began, " as touching my worldly estate," etc. Then, after some intermediate provisions, " I give unto John and Robert Mudge all and singular my lands and messuages, by them freely to be possessed and enjoyed alike." It is true, Lord Mansfield relied on the introductory words, as manifesting an intent in the testator to dispose of all his worldly interest; and with that he joined the words freely to be possessed, etc. And he agreed that, independent of these and other circumstances which he took up and connected together from the whole will, there were no words of limitation, such as heirs, or what were tantamount. Introductory words of much stronger import have always been denied as sufficient of themselves, though they may help other words. Vid. Ram. on Wills, 65, 66. And no case holds that simply connected with the words freely to be enjoyed, etc., the whole will carry a fee. To do this, where there are no words of express limitation, all the cases agree that the will should contain some provision in respect to the land necessarily inconsistent with the estate being for life. Freely to be enjoyed, etc., may come much short of this.
I have thus, in some measure, followed the counsel for the defendant, who has much elaborated the case in Cowper. I entirely agree with him, that it will be found on due consideration, to have been so mixed and compounded with various circumstances in the will, as by no means to form a reliable guide in deciding the case at bar. I do not find, however, that the force of the words in question were at all reconsidered, as he supposes, in Denn ex dem. Gaskin v. Gas-kin, Cowp. 657, or in Wright ex dem. Shaw v. Russell, id. 661, the case stated by Ashurst, J. from MSS.; though I really think either of them stronger for a fee than the one at bar; and the general reasoning of the court is quite in point against seizing on equivocal words, in order to give the will such an effect. It is remarkable, that in each of the latter cases a disinheriting legacy was given to the heir at law; a circumstance which I should suppose of much more decisive weight than the doubtful provision, freely to be enjoyed, etc. The wills also contained the usual general clause, manifesting the testator's intent to dispose of all his estate. Yet they were held to carry but life estates, and the heir at law recovered.
Thus stopping with Lord Mansfield's decisions alone, one would suppose it impossible to maintain the plaintiff's pretensions upon the will before us. But I am surprised that the defendant's counsel should have overlooked the case of Goodright ex dem. Drewry v. Barron, II East, 220, decided A. D. 1809, in which his own views were adopted by the King's Bench, and which I cannot distinguish from the case before us. There the will was thus: " As touching such worldly estate wherewith it has pleased God to bless me in this life, I give, devise and dispose of the same in manner following: "1. A cottage to T. D. and his heirs." Then: "Also I give and bequeath to my wife Elizabeth, whom I likewise make my sole executrix, all and singular my lands, messuages and tenements by her freely to be possessed and enjoyed." The question was whether the wife took a fee; and held not. The case was ably argued; and Lord Ellenborough, C. J., Le Blanc, J., and Bayley, J., who spoke to the question seriatim, they being the only judges who heard the argument, all concurred. The case in Cowper, 352, was fully considered ; and they agreed, that the introductory words, and the words freely, etc., as used in East, would not of themselves carry a fee, because they were not necessarily incompatible with an estate for life. They agreed that the case in Cowper, 352, must have gone, not on these alone, but only as considered in connection with various other explanatory circumstances, such as incumbrances imposed, etc. Only one of the learned judges, Le Blanc, J., adverted to the use of the word heirs in the devise to T. D. as indicating that the testator understood the value of that word. Lord Ellenborough and Bayley, J., took up the matter on the neat point as presented in the principal case. The former agreed that the introductory words might be material; but alone they made nothing. "They were not sufficient of themselves to carry a fee; but juncta juyant." He said that, in the absence of express words to limit the estate in fee, there must be some words from which an intention to pass the fee would be necessarily implied. Bayley, J., taking up this rule, said " the only words on which any doubt could arise are ' freely to be possessed and enjoyed;' but they may mean freely during her life; they may mean free from all charges; free from impeachment of waste; they may indeed also mean freely for all purposes against the heir; but as it is not certain that the testator used them in this latter sense, we cannot give them so extended a meaning against the heir."