LAMBERT'S

LESSEE

V.

PAINE.

1. The general import and effect of the word estate, as applied to a devise of realty.

2. Whether its general import is controuled or altered by the subsequent words used in a similar sense in the will of 1786.

I consider the doctrine as well established, that the word estate, made use of in a devise of realty, will carry a fee, or whatever other interest the devisor possesses. And I feel no disposition to vary the legal effect of the word, whether preceded by my or the, or followed by at or in, or in the singular or plural number. The intent with which it is used, is the decisive consideration; and I should not feel myself sanctioned in refining away the operation of that intent, by discri minations so minute, as those which have been attempted at different stages of English jurisprudence.

The word estate, in testamentary cases, is sufficiently descriptive both of the subject and the interest existing in it. It is unquestionably true, that its meaning may be restricted by circumstances or expressions indicative of its being used in a limited or particular sense, so as to confine it to the subject alone; but certainly, in its general use, it is understood to apply more pertinently to the interest in the subject. To one not accustomed to the discriminations of technical refinement, it would seem that no doubt could be entertained as to the interest devised to Gilmer. The plain, ordinary import of the words would convey the idea of an absolute disposition of every article of property disposed of by the will. That words of inheritance are necessary to convey a fee, is certainly a good general rule of the common law; but, in the case of wills, it is entirely subordinate to expressions of the testator's intention.

In the case before us, there is no necessity for extending the decision of the court beyond the words made use of in disposing of the Marrowbone tract. But it is contended, that the words adopted by the testator, in devising the two other tracts, are used in the same sense as those in the first devising clause, and being of a

1

LESSER

V.

PAINE.

more restricted signification, ought to limit the word LAMBERT'S
estate to a description of the mere locality. I think
otherwise. When a word is made, use of to which a
clear legal signification has been attached by successive
adjudications, it ought rather, in my estimation, to con-
troul the meaning of those of a more equivocal purport.
But the construction of a will ought to depend much
more upon
the evident intent of the testator, than upon
the strict import of any term that he may make use of.
Too critical an examination of the diction of a will is
rather calculated, to mislead the court, than to conduct
it to a just conclusion.

I infer the intent of the testator, in the case before us, from the following circumstances, extracted from the special verdict.

1. In the first clause of the will of 1782, the testator makes use of the expression "all the estate both real and personal which I possess or am entitled to in the commonwealth of Virginia," evidently under an im pression that the word estate is sufficient to convey a fee; because, out of the estate, thus devised to his trustees, he instructs them to convey to his brother, or ne phew, in the alternative stated, a good and indefeasible title in fee simple.

2. There is no reason to infer, from any thing in this case, that the testator intended only to make a partial disposition of his property; that he intended to die intestate as to any part of it. The fair presumption generally is, that he who enters upon making a will, intends to make a full distribution of every thing that he possesses. That such was the particular intention of this testator, I think fairly inferible from the general nature of the residuary bequest. The word other, in my opinion, is referible to the whole preceding part of the will, and excludes, as well the lands devised to Gilmer, as the negroes and horses which he directs to be sold. We must give it this construction, or else suppose, either that the word property, here used, is confined to personalty, or, that it includes every thing that he possessed, both real and personal; in which latter case it would comprise even the lands previously disposed

LESSEE
V.

PAINE.

LAMBERT'S of. It follows, therefore, that in the clause in which he proposes to dispose of the whole residue of his property, he omits making any disposition of any interest in the lands in question; evidently, as it impresses me, upon the supposition that he had already disposed of his whole interest in them. What object could the testator propose to himself by dying intestate as to the remainder, in fee, in the lands in question? He knew that his heir at law was an alien, and, as such, incapable of holding lands under a government to which he did not owe allegiance. This circumstance is evident from the will of 1782; and it is equally evident, from the same will, that he felt that repugnance, which is common to all men, at the idea of suffering his lands to escheat, and knew the means of preventing it.

I am, therefore, of opinion, upon the first point, that George Gilmer took a fee in the land, which is the subject of this suit; and this opinion disposes also of the second point, and renders it unnecessary for me to consider the third.

WASHINGTON, J. The only question in this cause which I mean to consider is, whether the will of George Harmer, made in 1786, passes to George Gilmer an estate in fee, or for life in the Marrowbone land. The words of the clause containing the bequest are, "I give to Doctor George Gilmer, of Albemarle county, all the estate called Marrowbone, lying in Henry county, con taining, by estimation, 2,585 acres, and likewise, one other tract called Horse-pasture, containing, by estimation, 2,500 acres; also one other tract containing, by estimation, 667 1-2 acres, called Poison-field.

The rule of law most certainly is, that where, in a devise of real estate, there are no words of limitation superadded to the general words of bequest, nothing passes but an estate for life; but since, in most cases, this rule goes to defeat the probable intention of the testator, who, in general, is unacquainted with technical phrases, and is presumed to mean a disposition of his whole interest, unless he uses words of limitation, courts, to effectuate this intention, will lay hold of general expressions in the will, which, from their legal import, comprehend the whole interest

1

LESSEE
V.

PAINE.

of the testator in the thing devised. But if other words be LAMBERT'
used, restraining the meaning of the general expressions,
so as to render it doubtful whether the testator intended
to pass his whole interest or not, the rule of law which
favours the right of the heir must prevail. Thus, it has
been determined, that the words "all my estate at or in
such a place," unless limited and restrained by other
words, may be resorted to as evidence of an intention to
pass, not only the land itself, but also, the interest which
the testator had in it. But words which import nothing
more than a specification of the thing devised, as "all my
lands," "all my farms," and the like, have never been
construed to pass more than an estate for life, even when
aided by an introductory clause, declaring an intention to
dispose of all his estate. Except for the establishment of
general principles, very little aid can be procured from ad-
judged cases in the construction of wills. It seldom hap-
pens that two cases can be found precisely alike, and in
the present instance, I do not recollect that a single one
was read at the bar which bears an analogy to it. The case
of Wilson and Robinson, which comes the nearest to it, is
of doubtful authority. No reasons are given by the court
for their opinion, and, consequently, it is impossible to
know whether it was or was not influenced by other parts
of the will. Ibbetson v. Beckwith was decided upon a
manifest intent to pass the inheritance arising out of the
different parts of the will taken together, amongst which
is to be found an introductory clause which, the chancel-
lor savs, affords evidence that the testator had in view his
whole estate. The cases of the Countess of Bridgewater
v. the Duke of Bolton, and Bailis v. Gale, only lay down
the general principle which is not denied, that the word
"estate" in a will, standing alone, and unqualified by other
words, is sufficient to pass the whole of the testator's in-
terest. The words "all my land and estate," in the case
of Barry and Edgeworth express so plainly an intention
to give a fee, that I only wonder a question could have
been made of it. They are quite as strong as if the testa-
tor had given the land, and all his interest in the land,
where the word estate or interest, unless construed, as
was done in that case, would have been perfectly nuga-
tory. In Goodwin v. Goodwin, the chancellor doubted
whether the word estate was not so limited and restrained
by strong words of locality and description as to deprive
it of the interpretation generally given to it.

LAMBERT'S

LESSEE
V.

PAINE.

In the case now under consideration, there is no introductory clause declaratory of an intention in the testator to dispose of the whole of his estate; yet, I admit, that if he had devised all his estate called Marrowbone, without using other words calculated to limit the technical meaning of the word estate, the cases cited by the defendant's counsel would establish, beyond a doubt, that a fee passed. But I cannot read this clause of the will without feeling satisfied that the testator did not mean to use the word estate in its technical sense. For he not only varies the description of the tracts of land called Horsepasture and Poison-field, so as to show that, with respect to them, he only meant to describe their situation and quantity; but, by using the word "other," it is plain, that with respect to the Marrowbone estate, his design was the same. Unless, in the disposition of this latter estate, he had described, or intended to describe it as so much land, he could not, with any propriety, speak of the Horse-pasture estate as another tract of land. It will hardly be said that the devise of the last tracts pass more than an estate for life, unless the word estate, before used, can be transferred to those tracts, so as to impart to the expressions there used, the technical meaning given to the word estate where it stands alone. But I cannot perceive how this is to be done without supplying words not used by the testator, and which there is no necessity for doing in order to make sense of the clause as it stands. It would, I think, be going too far to supply more than is necessary to make each devise a complete sentence, and then to introduce the preposition "in" for the purpose of making sense of the whole. Yet, if this be not done, the word estate cannot, in respect to the Horse-pasture and Poison-field tracts, be pressed into the service, and made in any manner to fit the sentence.

If only an estate for life in the Horse-pasture and Poison-field tracts passed to George Gilmer, it will, I think, be very difficult to maintain, that the word estate, in the same sentence, governed by the same verb, and coupled with the words which describe those tracts of land, can be construed to pass a fee.

The testator certainly uses the words estate and tract of land, as synonimous expressions; and then the question will be, whether the generality of the first shall en