# Busby v. Busby

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1787.
Busby versus Busby.
T
Shippen, President.– The question arises upon the will of Thomas Busby, whether the devise to his wife of a certain piece of land there in mentioned, passes a fee simple, or an estate for life only.—There are no words of limitation in the devise; but, it is contended, that in the introductory part of the will, and by the whole will taken together, it was the clear intention of the testator to pass a fee. The intention of the testator is said to be the pole stood to guide the construction of wills.–But there are two qualifications to this rule; 1st That this intention must not clash with the rules of law; and 2dly that where legal technical terms are wanting, the intention, to supply them, must be clear and manifest from the words and expressions in the will.
The will beings with these words ; “And as to what wordly “estate I am blessed with, I dispose of as followeth”– There are three devises which relate to the real estate: First, a devise to his “son Isaac Butsly of the house and plantation where the testator then “dwelt, with all the appurteninces thereunto belonging, to have, “and to hold unto the said Isaac Busby his Heirs and Assigns for ever, “he paying his brother ten pounds a year during his natural life.” The second devise is to his wife of the land now in dispute, in these words: “I give, devise, and bequeath, unto my wife Mary, a certain piece of land bounding on William Busby &c. Also I give my said wife one third of such moveable estate as shall be remaining after the payment of my debts and funeral expences, and such legacies as are herein after given, which shall be in lieu of her dower or thirds of my estate.” – And the third and last disposition of his land is a direction, that his house and land by the mill should be sold by his executor.
The word “Estate” in a will; connected with a devise, as where a man gives all the residue of his estate, or gives his Estate in such a place, will pass a fee simple without words of inheritance; because it shall be intended that he meant to give the whole estate which he himself had, both as to quantity and quality. The words, “As to all my wordly estate,” in the beginning of the will, unconnected with any particular devise, shew an intention to dispose of his whole estate, but will not carry an estate that is clearly omitted; but if it be dubious whether it be omitted or not, it will help the interpretation. There are many cases in the law books of will beginning with these words: I shall content myself with ​
1787.
animadverting upon only two of them, cited, one, on one fide of the queftion, and the other, on the other fide, as they appear to me to be the moft familiar to the prefent cafe, as to this point.
The firft is the cafe of Frogmorton v. Holiday in 1 Black Rep. 535. and 3 Burr. 1618.–The will in that cafe began, as here, ‘‘ As to all her wordly affairs and eftate ;’’ it is fimilar to it likewife in difpofing of the refidue of her perfonal eftate, and not mentioning the realty, and alfo in containing a devife of another eftate with words of inheritance. But there is an ingredient in that cafe, on which the greatest ftrefs appears to have been laid by the Judges ; which was, that, in the devife, the truftee charged the houfe and garden with the payment of fifty pounds out of the yearly rents and profits ; the annual rent was ten pounds a year ; the devifee was about feven years old at the death of his mother, and there was a direction that if the devifee fhould die in his minority then the houfe and garden fhould go to the teftarix's three daughters fhare and fhare alike.– Here, though the charge on the Proʃits, unconnected with other circumftances, would not have paffed a fee, yet the Court faid this was a middle cafe, and that the reafon why this mode of payment was ordered, was apparently becaufe the devifee was a minor, and the limitation over, if he fhoufl die before the age of 21, fhewed the teftator meant the heir fhould not have it ; for, if the devifee was barely to take an eftate for life the time of his death muft be immaterial to the devifee over, but limiting it over, only upon the contingency of his dying in his minority, fhewed that the teftator intended to give him an abfolute eftate in fee, which he might difpofe of when he came of age.–The implication was therefore thought by the Court to be neceffary one, and the other parts on the will (illegible text) the conftruction.
The cafe cited on the other fale as moft material, is the cafe of Frogmorton v. Wright in 2 Blackʃt. R. 889.– There the will began, as here, “ As to all my temporal eftates,” there were no words of inheritance in the particular devife, and there was a difpofition of the refidue of the perfonal eftate only. There the Court faid, though the probable intent of the teftator was an abfolute difpofition, yet it is not a certain intent, nor is it a legal difpofition.– In the report of the fame cafe, in 3 Wils. 414. the whole will is fet out, and it appears that there were two devifes of lands to his different nephews, nearly in the fame words, and feveral pecuniary bequefts to his other nephews and nieces. The Chief Juftice there fays, it may feem probable that the teftator's intention was than his nephew William fhould have a fee ; but it is a clear rule of law that there muft be exprefs words or a neceʃʃary implication to difinherit the heir at law, and where neither of them app (illegible text) he legal operation of the words of the will muft govern. In the cafe firft mentioned, in 1 Blackʃtone, the Court fay, there was a neceʃʃary implication, and, therefore, they determined it a fee : In the latter cafe, there was no neceffary implication, therefore, they determined it only an eftate for life. ​
1787.
The implications contended for, on the part of the Plaintiff, in this cafe, do not appear to me to be neceʃʃary implications ; they amount at moft to probable ones ; but we are not warranted in departing from the rules of law by probable conjectures.–And, it may be queftioned, whether even thefe probabilities, are not overbalanced by the prefumptions arifing from the devife of his houfe and plantation to his fon Iʃaac Buʃby in which he carefully and formally inferts an habendum to him, his heirs and aʃʃignsƒor ever : And alfo by his adding to the devife of the land in controverfy, that it fhould be in lieu oƒ her dower or thirds of his eftate ; it being well known in the country that fuch dower or thirds of land is only during life.
We are, therefore, of opinion that Mary Buʃby took only an eftate for life by the devife.
Judgment for the Defendant.