LESSEE V. PAINE. large the plain and usual import of the latter words, or LAMBERTS the latter restrain the technical meaning of the former? I know of no case where the word estate is used at all, in which its general import is limited and restrained by so many and such strong expressions descriptive of the land, and totally inapplicable to the interest of the testator, as in the present. The words, the estate called Marrowbone, lying in Henry county, containing, by estimation, so many acres, excite, at first, no other ideas than such as respect the name and situation of the land, with the number of acres contained in it. The description would be equally accurate, whether the interest of the testator were a fee, or a term for years. If, then, we are to search after and to effectuate the intentions of men supposed to be unacquainted with legal phrases, and are, on that account, to construe the words they use with indulgence, I think we shall be more likely to fulfil this duty by limiting the general import of a technical word, which, in its common use, is entirely equivocal, and is rendered particularly ambiguous in this case by the words which immediately attend it, than by giving to the words tract of land, a meaning which they do not, in themselves, import, and are seldom, if ever, used to express more than a local description of the thing itself. As the opinion of a majority of the court is in favour of the defendant upon the construction of the will, I do not think it necessary to say any thing upon the doctrine of alienage, as that question may possibly come on in some other case, in which it must be decided. PATERSON, J. The devise in the will of George Harmer, was intended to convey some interest in the Marrowbone farm to George Gilmer; and the quantity of interest, whether for life or in fee, is the question now to be considered. It is a fundamental maxim, upon which the construction of every will must depend, that the intention of the testator, as disclosed by the will, shall be fully and punctually carried into effect, if it be not in contradiction to some established rule of law. such case, the intention must yield to the rule. This intention is to be collected from the instrument itself, and not from extrinsic circumstances; and, therefore, the In LESSEE V. PAINE. LAMBERT'S will of A can afford little or no aid in discovering the intention and expounding the will of B. Indeed, the number of cases which are usually cited in arguments on devises, tend to obscure rather than to illuminate. When, however, a particular expression in a will has received a definite meaning, by express adjudications, such definite meaning must be adhered to, for the sake of uniformity of decision, and of security in the disposal of landed property. It cannot be questioned, that the word "estate" will carry every thing, both the land and the interest in it, unless it be restrained by particular expressions; for estate is genus generalissimum, and comprehends both the land and the inheritance. 1 Salk. 236. 6 Mod. 106. Pr. Ch. 264. 2 P. W. 524. Ca. Tem. Talbot, 157. 1 Vez. 226. 2 Vez. 179. 3 Atk. 486. 5 Bur. 2638. 1 Term Rep. 411. The word "estate" is the most general, significant, and operative, that can be used in a will, and, according to all the cases, may embrace every degree and species of interest. If the word "estate" stand by itself, as if a man devise "all his estate to A," it carries a fee from its established and legal import and operation. Standing thus per se, it marks the intention of the testator, passes the inheritance to the devisee, and controuls the rule in favour of the heir at law. It is true, that this word, when coupled with things that are personal only, shall be restrained to the personalty. Noscitur a sociis. The word "estate" may also, from the particular phraseology, connected with the apparent intent of the testator, assume a local form and habitation, so as to limit its sense to the land itself. Here uncommon particularity of description is requisite, so as to leave the mind perfectly satisfied, that the thing only was in contemplation, and nothing more. A description merely local cannot be extended beyond locality, without departing from the obvious import of the words; and thus making, instead of construing the will of the testator. But when no words are made use of to manifest the intention of the testator that the term "estate" should be taken, not in a general, but in a limited signification, then it will pass a fee; because the law declares, that it designates and comprehends both the subject and the interest. Nay, such is the legal import and operation of the word "estate,” that it carries a fee, even when expressions of locality are annexed. To illustrate this position by apposite and ad LESSEE V. PAINE. judged cases: If a man, in his will, says, "I give all my LAMBERT'S estate in A," it has been held, that the whole of the testator's interest in such particular lands passed to the devisee, though no words of limitation are added. 2 P. Will. 524. So the word " estate" was held to carry a fee, though it denoted locality, "as my estate at Kirby-Hall." 2 Atk. 37. Tuffnel v. Page. S. C. Barn. Cha. R. 9. On which Lord Hardwicke observed, that though this is a locality, yet the question is, whether it is such a locality as is sufficient to show the testator's intention merely to be to convey the lands themselves, and not the interest in them. He was of opinion, that the words were descriptive both of the local situation, and the quantity of interest. And in Ibbetson v. Beckwith, Lord Talbot observed, that the word "estate," in its proper, legal sense, means the inheritance, and carries a fee. Why, indeed, may not locality and interest be connected, and the same words express and convey both? To exclude interest in the subject, the expressions coupled with the word "estate" must be so restrictive and local in their nature, as to convey solely the idea of locality, and not to comprehend the quantum of interest, without doing violence to the words and intention of the testator. Besides, it is a just remark, repeatedly made by Lord Hardwicke and Lord Mansfield, that where a general devise of land is narrowed down to an estate for life, the intention of the testator is commonly defeated, because people do not distinguish between real and personal property; and, indeed, "common sense would never teach a man the difference ;" and therefore, judges have endeavoured to make the word 66 estate," in a will, amount to a devise of the whole interest, unless unequivocal and strong expressions are added to restrict its general signification. It would be a laborious and useless task, to enter into a minute and critical investigation of the great variety of cases which bear on this subject. They are collected in a note by the editor of Willes' Reports, 296. From the whole scope and complexion of the will of George Harmer, it is evident to my mind, that the testator intended to dispose of all his property, both with regard to the quantity and quality thereof. He did not mean to die intestate as to any part of his estate; but, on the contrary, it was his manifest intention to leave nothing undisposed of by his will. He directs that all his negroes, LESSEE V. PAINE. LAMBERT'S horses, and other property be sold, &c. which plainly indicates what his intention was in regard to the lands which he had previously devised. This last clause evinces and illustrates the meaning of the testator, and removes every particle of doubt from my mind, as to the true construction which ought to be put on the word To effectuate this intention, the term tate" is to be taken in its largest signification, as comprehending both the subject and the interest, the land and the inheritance. "estate. 66 es Amidst the great mass of cases arising on wills, it is impossible to select any two, that are exactly similar. The variety of expressions is infinite; and it is from the language, that we are to discover the intent. The same word, indeed, may be taken in a different sense in different wills, and even in different parts of the same will, owing to its juxtaposition, its associa tions, and the manner in which it is placed and used. The case of Bailis v. Gale, in 2 Vez. 48, may serve to elucidate the devise under review, in more points than one. "I give to my son, Charles Gale, all that estate I bought of Mead, after the death of my wife." These expressions seem strongly to mark locality in contradistinction to interest. But, what says my Lord Hardwicke?" I am of opinion, that both the thing itself, and the estate, property, and interest the testator had, pass by the devise. Several questions have arisen in courts of law and equity on devises of this kind; but, all the latter determinations have extended and leaned as much as possible to make words of this kind comprehend, not only the thing given, but the estate and interest the testator had therein. But, it is objected, the pronoun 66 my" is not added; there was no occasion for it. It was necessary he should use such words as point out the whole interest in the land, which is sufficiently done by the other words; for he bought of Mead, the land and the fee simple in the land; which is agreeable to the construction of the word estate, being sufficient to describe the thing, and the interest, as it is in the case of all my estate. So, in the present will, the words, "I give all the estate called Marrowbone," contain a description of the land, and the interest in it. The case in Vez. is particu LESSEE V. PAINĖ. larly applicable, and worthy of attention in another LAMBERT'S respect, as it affords a complete answer to the dis tinction, which was ingeniously raised, and attempted to be sustained between the import of the word “my” and "the" in devises like the present. The coun sel for Lambert contended, that the word the, "all the estate," was descriptive of the thing; whereas, the word my, "all my estate," was descriptive of the interest as well as of the thing. But, in the case of Bailis v. Gale, Lord Hardwicke held, with great clearness, that there was no difference between a devise of all my estate at N, and a devise of all the estate at N; and that a fee passed in either case. Nor ought this opinion to be considered as extrajudicial; for the counsel in Bailis v. Gale insisted, that the pronoun my was necessary to make the devise carry a fee; and, therefore, it claimed, very properly, the notice and decision of the court. According to this opinion, a devise of the estate called Marrowbone, in the county of Henry, must have precisely the same construction and, effect, as a devise of all my estate called Marrowbone, in the county of Henry; which, it appears to me, would unquestionably give a fee. Some expressions in a will, as, "I give my farm, my plantation, my house, my land," do, of themselves, contain no more than a description of the thing, and carry only an estate for life, because unconnected with words of inheritance, or other words of a similar import. For we are not permitted to enlarge the estate of a devise, unless the words of the devise itself be sufficient for that purpose. In the present devise, the words, "all the estate called Marrowbone," are competent to carry the degree of interest contended for on the part of the defendant; and this construction accords with the intention of the testator, as disclosed by his will. Whether it would not have been more beneficial to society to have observed, from the first, the same technical phraseology and strictness of legal terms in devises, as in conveyances of landed property, is a question which may amuse the theoretical jurist; but which, as judges, we cannot seriously discuss; for it is a leading axiom in our system of jurisprudence, not to be shaken by judicial authority; |