LAMBERT'S LESSEE V. PAINE. The third point, viz. that the will of 12th Sept. 1786, is only a partial, and not a total, revocation of the will of 25th June, 1782; and that this will passes and disposes of the reversionary interest of the testator's estate, according to the legal import of that will, was admitted by the opposite counsel, in case the second will devised a life-estate only. The fourth point, that by virtue of the Virginia statute transferring trusts into possession, the devise of 1782 transferred the legal estate to John Lambert, was also admitted, if he is not to be considered as an alien. The fifth point is, that John Lambert, if an alien, is yet capable of taking by devise, and is protected by the treaty of 1794, between the United States and Great Britain. By the 9th article of the treaty "it is agreed that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of his majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein; and may grant, sell, or devise the same to whom they please, in like manner as if they were natives; and that neither they nor their heirs or assigns shall, so far as may respect the said lands, and the legal remedies incident thereto, be regarded as aliens." The only doubt which can be raised upon this article arises from the word hold. But treaties ought to be liberally expounded, so as to meet the full intention of the contracting parties. There can be no doubt but the intention was to secure, not only actual possession, but rights which would have vested but for the alienage of the parties. This is apparent from the provision made for legal remedies, which would be wholly useless if the former expressions were meant to comprehend only lands in actual possession. If, therefore, Lambert is to be considered as an alien, yet the treaty destroys that bar to his recovery. LESSEE The sixth point is, that although Lambert should be LAMBERT'S considered as an alien, and is not protected by the treaty, yet he is capable of taking by devise, and of holding the land until office found for the commonwealth. He certainly has a good right against all the world, except the sovereign. In England, land purchased by an alien does not vest in the king until office found. Co. Lit. 2. (b.) Hargrave's note (3.) 5 Co. 52 (b.) Page's case, 1 Jones 78, 79. More, 325, Englefield's case. 2 Bl. Com. 293. If he had been tenant in tail, he might have barred the remainder. Gouls. 102. 4 Leon. 84. An alien may take by devise, Powell on Devises, 316, 317, 318. 2 Vez. 362. Knight v. Duplessis, and may hold until office found. "For," says Powell," when an alien takes by will, the estate, on the will's being consummate, vests in him, and he is in to all intents and purposes, as any other devisee would have been, until something further be done, to take the estate devised out of him again; for as long as the alien lives, the inheritance is not vested in the king, nor shall he have the land, until office found; but if he die before office, the law casts the freehold and inheritance upon the king for want of heirs, an alien having none. So that the title of the crown is collateral to the title by the devise, has no retrospect to the time of its being consummate, nor does it affect the land in the hands of the devisee, until another thing is done to entitle the king, not under the devise, but by right of his prerogative; viz. office found; the tenant being an alien, and consequently, though of capacity to take lands in his own right, yet not of capacity to hold them." Key, contra, contended, 1st. That George Harmer, by the will of 1786, devised a fee to Gilmer. 2d. That if he did not, yet the lessor of the plaintiff cannot recover. 1st. The word estate, in the devising clause of a will, where it refers to land, denotes and carries the testator's interest in the land. And there is no difference in con PAINE. LESSEE V. PAINE. LAMBERT'S struction of law, whether the words are "all my estate," or "all the estate." Both carry the whole interest of the testator. In the present case there are no words of locality that operate as description, and prevent the fee from passing. It is admitted that the word estate, where it is coupled with personalty, shall be restrained and will not carry the fee of lands; upon the principle noscitur ex sociis. This case is not within this distinction, because the word estate refers wholly to the land, and the whole personal estate is disposed of by a subsequent, independent clause. Consequently no cases can apply, but where the expressions are similar to those of the present will, and refer to lands. In the case of Wilson v. Robinson, 2 Lev. 91. 1 Mod. 100. 25 Car. 2. an. 1672, the words were "all my tenant-right estate at Brigis nd in Underbarrow," and it was held that they passed the fec. This is the general rule of law, and is uniformly supported by the authorities from the year 1672 to the present time; except the case ci ed by the plaintiff's counsel, from 2d P. Williams. The case in 2 Lev. 91, is exactly like the present; the word lands is used in the same sentence, and in the same manner as in the present case. The word estate, in wills, always means the interest, unless controuled by words of restriction. Words of 'ocality will not restrain the force of the word estate. in the case of the Countess of Bridgewater v. Duke of Bolton, 1 Salk. 236. 6 Mod. 106. S. C. the words were "all other my estate real and personal not otherwise disposed of by this my will, for to be given by him to his children as he shall think convenient, I solely trusting to his honour and discretion that he will give them such provision as will be necessary." "Et per Holt, Ch. J. who delivered the resolution of the court, the rents pass by these words "all my real and personal estate," for the word estate is genus generalissimum, and includes all things real and personal, and the fee of the rents passes, at least the whole estate of the devisor; for all his estate is a description of his fee. In pleading a fee simple, you say no more than seisitus in dominico suo ut de feodo; and in formedon, or other action, if a fee simple be alleged, you say cujus statum the demandant now has." And he held "that devising all his estate, and all his estate in such a house, was the same, and that all LAMBERT'S his estate in the thing passed in either case." The next case is that of Barry v. Edgeworth, 2 P. Williams 523, anno 1729, which overrules the case of Chester v. Painter, cited by the plaintiff's counsel from 2 P. Williams 335, anno 1725. In this case of Chester v. Painter, the court probably took the whole will together, and from the testator's having used the word heirs in some of the devises, and omitted it in the devise in question, concluded that it was not his intention to pass the fee.. In the case of Barry v. Edgeworth, the words were all her land and estate in upper Catesby, with all their appurtenances," and the master of the rolls held it to be decided by the case of the Countess of Bridgewater v. the Duke of Bolton, Salk. 236; and said, "the" word estate naturally signifies the interest rather than the subject, and its primary signification refers thereto; and although the devise be of all her land and estate in upper Catesby, this is not restrictive with respect to the estate intended to pass by the will, but only as to the land." "And as the word estate has been agreed and settled to convey a fee in a will, it would be dangerous to refine upon it; for then none could give any opinion thereupon." This case refers to that of Murry v. Wyse, 2 Vern. 564, anno 1706, where the words "all the rest and residue of his real and personal estate whatsoever," were held to pass a fee. Precedents in Chgn. 264. S. C. In the case of Ibbetson v. Beckwith, Cases Temp. Talbot, 157, the words were, "as touching my worldly estate, wherewith it hath pleased God to bless me, I give, devise, and dispose of the same in the manner following." Then follow two devises of "estates," burthened with the payment of debts and legacies, which were admitted to carry a fee; after which came the devise in question: "Item, I give unto my loving mother all my estate at Northwith close, North closes, and my farm held at Roomer, with all my goods and chattels as they now stand, for her natural life, and to my nephew Thomas Dodson, after he death, if he will but change his name to Beckwith; if he does not, I give him. only £20, to be paid him for his life out of Northwith close, North close, and the farm held at Roomer; which I give her upon my nephew's refusing to change LESSEE V. PAINE. KESSEE PAINE. LAKEERT'S his name, to her and her heirs forever." The question was, whether Thomas Dcdson took an estate for life, or in fee. The Lord Chancellor decreed that he took the fee; and said, that the word estate carries the fee, and that no case had been cited "to warrant the altering the known legal signification of it." See also Gilb. Devises, 25. So in the case of Bailis v. Gale, 2 Vez. 48, anno 1750, the testator devised to his wife all that estate he bought of Mead for so long as she shall live; and in another clause said, "I give to my son, Charles Gale, all that estate Ibought of Mead, after the death of my wife." The Lord Chancellor said, that the word "estate is admitted to be sufficient to make a description not only of the land, but the interest in the land," and he held that the fee passed to Charles. The case of Hogan v. Jackson, Cowp. 306, shows that the word estate is sufficient to pass all the interest of the testator in the thing devised. So in the case of Loveacres v. Blight, cited from Cowp. 355, Lord Mansfield says, "the word estate comprehends not only the land or property a man has, but also the interest he has in it." And in Denn v. Gaskin, Cowp. 659, he puts the words," all my estate," as an example of an expression tantamount to words of limitation. See also the case of Hodges v. Middleton, Doug. 434, where the argument of counsel is strong to the same effect. All the subsequent cases refer to that of Barry and Edgeworth, 2 P. Will. 523, and none of them refer to that of Ches ter and Painter, in 2 P, Will. 335. The case of Right v. Sidebotham, cited from Doug. 763, does not apply to the present case, as the words of that devise were, "all my lands,' tenements and houses," and not all the estate, as in our case. The authority from Gilb. on Devises, p. 24, is answered by p. 25; and the reason why a fee did not pass in the case in p. 24, is, because the word estate was coupled with personalty. The case of Frogmorton v. Wright, cited from Wilson, 418, had no words descriptive of the testator's interest, and the case of Fletcher v. Smiton, cited from 2 T. R. 660, is a strong case to show that the word estates will carry the fee, unless restrained by other words, clearly showing a contrary intention. A description of the place cannot, in reason, restrict the operation of the word |