#### Mart Sargent and Others *versus*Salem Towne.

A devise of wild or uncultivated land covered with wood carries a fee, without words of inheritance.

It is competent to show that land so devised was uncultivated, by parol evidence

This was a writ of *formedon in remainder,*brought for the recovery of two hundred and fifty acres of land lying in *Charlton,*in this county; fifty-two acres of which the tenant disclaimed, and as to the residue, the parties submitted the action to the determination of the Court on the following facts agreed, *viz.:*—

“ *Edward Kitchin,*formerly of *Salem,*in the county of *Essex,*on the 5th day of July, 1765, was seised of the demanded premises in fee, and, being so seised, made his last will and testament; and therein devised, among other things, as follows, *viz.: “*I will and bequeath to my kinsman, *Josiah Wolcott,*of *Oxford,*all my lands in *Oxford,*in the county of *Worcester,*and all my lands in Charlton.” *302The demanded premises are part of the lands mentioned in said clause. After several legacies, the concluding clause of said will was in these words, *viz.:*“ I will and bequeath the remainder of my estate, both real and personal, of what nature or kind *[ **304 ] soever, to my kinsman, *John Turner,*Esq., * whom I constitute and appoint to be sole executor of this my last will and testament.”

“ On the 16th day of August, 1766, the said *Edward Kitchin*died so seised; and on the 1st day of September, 1766, the said will was duly proved. Afterwards, on the same day, the said *Josiah Wolcott*entered upon the demanded premises, which then, as well as at the time of making said will, were in a state of nature, uncultivated, and covered with woods and brush.

“ The said *Wolcott*continued seised of the premises until the 25th day of December, 1792, on which day he conveyed the same to the tenant in fee simple, by deed of bargain and sale duly executed, acknowledged, and recorded; and the tenant has ever since continued in the possession of the premises.

“ The said *Edward Kitchin,*at the time of his decease, was also seised of a farm in *Danvers,*in the county of *Essex,*and of other real estate than his lands in *Oxford*and *Charlton.*

*“*The demandants are the only surviving heirs of the said *John Turner,*Esq., and he died on the 19th day of December, 1786, and the said *Josiah Wolcott*died on the 9th day of December, 1796.

“ If, upon the foregoing facts, the Court shall be of opinion that the demandants are entitled to recover in this action, it is then agreed that a jury be impanelled to inquire as to the value of the premises in a state of nature, and as to the value of the improvements made by the tenant and the said *Wolcott,*and to return a verdict according to the statutes in such case made and provided; and that judgment be rendered for the demandants to recover the demanded premises, not disclaimed, upon the conditions and subject to the provisions of said statutes, with costs. But if the Court shall be of a different opinion, then the demandants agree to become nonsuit, and that judgment be rendered for the tenant for his costs.”

The cause was opened at the last October term, in [ * 305 ] this * county, by *Dexter*and *F. Blake*for the demand-ants, and *Bigelow*and *Lincoln*for the tenant; and, being continued *nisi*for further argument, was again spoken to by the same counsel for the demandants, and *Bigelow*alone for the tenant, nt the last March term in *Suffolk.*

*For the*demandants,

the general principle was relied on, that a *303devise to one, without words of inheritance, and without any charge on the estate, is a devise for life only. The devise to *Wolcott*being for life, the remainder went to the ancestor of the demandants in fee, by the devise of the residue.

*For the tenant,*

it was argued that the lands devised to *Wo-cvtl*being uncultivated or wild, if the devise should be holden to give an estate for life, he could have derived no benefit from it, since the cutting down the trees, which would have been necessary to any enjoyment of the estate, would have been in itself an act of waste, and a forfeiture of the estate. But it is a general rule that such sense shall be made of a devise, that it may be for the profit of the devisee, and not to his prejudice. On this point a decision of this Court, in the county of *Suffolk,*was recollected by *Parsons,*C. J This was in the action of *Ridgway*vs. *Parker,*a note of which is given in the margin. (1) And the counsel for the tenant con*304sidered the decision as settling the principal question in the cause.

* *The demandants’*counsel contended that it was not competent for the tenant to avail himself of evidence *dehors*the will, to alter the estate devised. The construction must be gathered out of the words of the will, and not by any parol averment. (2)

But if it were competent to go into such evidence, yet the inference attempted to be drawn, that a devise of wild land gives necessarily a fee, does not follow. It is not true that tenant for life of such property can derive no benefit from his estate in it. He may take the wood which has decayed and fallen as estovers; and in many other ways derive a benefit; and the smallness of this benefit will not affect the argument.

The case of *Ridgway*vs. *Parker*is a solitary decision, and the point made in the present case came there only collaterally before the Court. And it would have been as correct to have decided in that case, that because the devise of the messuage in *Boston*was but of an estate for life, so also was the devise of the lands in *Hills-borough,*as to have settled the point as it was.

* The principle is also too uncertain to form a rule

of judicial decision. What degree of cultivation will change a fee simple into an estate for life ?

(1)

*Suffolk.*February term, 1793. — *Ridgway*vs. *Parker.*— This was an action of covenant broken upon the covenants of seisin contained in a deed of bargain and sale of a certain messuage and land in *Boston,*made by the defendant to the plaintiff, and the breach assigned was that the defendant was not seised of the granted premises at the time of the conveyance.

The cause was submitted to the determination of the Court upon an agreed statement, to the following effect, *viz.:*That the defendant made the covenants declared on; and that *John Perkins,*late of *Lynn,*&c., made his last will and testament, a copy whereof was in the case, and therein devised the premises described in the plaintiff’s declaration to his son, *John Perkins,*in manner as in the same will is expressed.— [The clauses in the will, which alone could have a bearing on the case, were these: “ And after my debts and funeral charges are defrayed, I give and devise all the residue of my estate, wherewith God hath blessed me, in manner and form following: Item, I give and bequeath to my son, *John Perkins,*the northerly part of my mansion-house in *Middle*Street, *Boston,*&c.; and my will is, that all debts due from my son *John*be cancelled, he at the same time cancelling all demands, if any he has, on my estate. — Item, I give to my kinsman, Mr. *John Perkins,*of *Lynn-end,*my two lots of land in the township of *Hillsborough,*in the state of *New Hampshire.*1 give also to my said kinsman all my wearing apparel, and all the household substance that I leave, &c. — Item, the remainder and residue of my estate, my will is, that it be equally divided between my son *John’s*and daughter *Winslow’s*children.”]—That the same will was duly proved, &e.—And if the said *John Perkins,*the devisee therein mentioned, by force of said will, took the said messuage in fee simple, then the defendant has kept, and has not broken, his covenant: but if the said *J. P.,*the devisee, did not take a fee simple estate by the same will in the premises, then the parties agree that the defendant has not kept, but has broken, his covenants.

Upon these facts it was argued for the plaintiff, (as was recollected by the chief justice, who was present, but not of counsel in the case,) that the devise of the land in *Hillsborough,*being of lands uncultivated and in a state of nature, must be considered as giving a fee, for the reason relied on in the principal case; and that the devise of the mepmage and land in *Boston,*being in the same will and in the same words, must intend a devise in fee simple also.

And the Court were of this opinion, and for this reason; and they decided “ that *J. P.,*the devisee in the will, the son of the testator, took an estate in fee simple in the lands in question; and therefore that the defendant had not broken his covenant, as the plaintiff had declared against him.”

*Costs for the defendant*

(2)

**Shep. Abr.,*part 11, voc. Testament, *Bac. Abr.,*tit., *Wills and Testaments*

*Per Curiam.*

Two questions arise in this case:

1. Supposing, in the devise to *Wolcott,*the testator had expressly described the land devised as wild or uncultivated, what estate would *W.*have taken by the will ?

A devise is always intended for the benefit of the party. But it is very certain that a life estate in wild land cannot be considered as of any value. No one would undertake the bringing of it into a state of cultivation, waste being out of the question, if his estate might be determined before he should be reimbursed his labor and expense. The inference, then, is clear, that a devise of such land, without words of inheritance, carries a fee. This was, in fact, the whole ground of the decision in *Ridgway*vs. *Parker;*and that decision, founded as it was in reason and good sense, is a precedent for the case before us.

2. Is it competent to prove this circumstance, and thus affect the construction of the devise ?

Parol averments are admitted to aid the exposition of a written will, not only where there is an ambiguity as to the person, as where there are two persons of the same name, but as to the sub*305ject matter of the devise, as where there are *black-acres.*Averments are also received of facts which were known to the testator, and which may be reasonably presumed to have influenced him in the disposition of his property. On this ground, we think the evidence of the situation of the land devised to *Wolcott*is admissible.

Upon the whole matter, it is our opinion that *Wolcott*took an estate in fee, and that the demandants have not maintained their action, *(a)*

*Demandants nonsuit.*

*306Additional note.

[Devise of all the testator’s *back 'lands.*Held, parol evidence was admissible, that certain lands of his were called and known by this title, by the testator, his family, and neighbors. — *Ryerss*v. *Wheeler,*22 *Wend,*148.—F. H.]

(a)

**[Nothing is better settled than that, where no words of limitation are added to a devise, and there are no other words from which an intention to give an estate of inheritance can be collected, the devisee will take an estate only for life. — *Cruise’s Dig.,*tit. 38, c. 13, sec. 9, 3d ed. — 2 *Powell's Dev.*by *Jarman,*377, and the numerous cases there cited. — *Jackson, ex Dem. Newkirk,*vs. Embler, 14 *Johns.*198.— *Jackson, ex Dem. Welles,*vs. *Welles,*9 *Johns.*222. — *Ferris Al.*vs. *Smith Al. 17 Johns.*221. — *Hal*l *Al.*vs. *Goodwin, 2 Nott & M’Cord,*383.— *Clayton*vs. Clayton, 3 *Binn.*476. — *Steele*vs. *Thomson,*14 *Serg. Rawle,*84. — *Moobery*vs. *Marye,*2 *Munf.*453. — And where there is no ambiguity, extrinsic evidence is inadmissible to alter the legal construction of the words, or to affect a legal presumption arising from the construction. — 1 *Rob., Wills,*3d ed. pp. 566,568, 565. — *Ram. on Wills,*p. 31. — 1 *Powell on Dev.*3d ed. *466.—Roper, Leg.*3d ed. pp. 74, 89, 92, 227. — *Lovelass,*11th ed. p. 191. — 1 *Phill. Ev.*7th ed. pp. 538, 566, and the numerous cases cited and referred to in these text-books. — *Doe*vs. *Fildes, Cowp.*833. — *Goodtitle*vs. *Edmonds, 7 D. & E.*635. — *Doe*vs. Dring, 2 *Maul*& *Selw.*448. — *Denn*vs. *Gaskin, Cowp.*657. — *Brown*vs. *Selwin, Cas. Temp. Talb.*240. — 4 *Bro.P. C.*179. — *Mann*vs. *Mann,*3 *John. Ch. C.*231. — *Doe*vs. *Oxcnden,*3 *Taunt.*141. — *Doe*vs. *Brown,*11 *East,*441. — *Druce*vs. Dennison, 6 *Ves.*397. — *Lane*vs. *Stackpole,*6 *D.*& *E.*354. — *Doe*vs. *Kelt,*4 *D. & E.*601.— *Clayton*vs. *Clayton,*3 *Binn.*496.— *Duncan*vs. *Duncan,*2 *Yeates,*302. — *Avery*vs. *Chappel,*6 *Conn. R.*270. — *Richards*vs. *Dutch,*8 *Mass. Rep.*506. —The case in the text, upon the words of the will, is free from ambiguity, and admits of no doubt. The legal construction is so plain and well settled that parol proof is wholly inadmissible. “ The rule of law,” says Lord Mansfield, “ is established and'certain, that express words of limitation, or words tantamount, are necessary to pass an estate of inheritance. ‘ All my lands in such a place ’ is not sufficient.” — *Right*vs. *Sidebotham, Doug. 763.—Doe*vs. *Allen,*8 *D. & E.*502. — 2 *Preston on Est.*196, 201. — “A will,” says the same learned judge, “ shall be construed by what appears on the face of it, and not upon circumstances, or matter extrinsic. Where the testator uses no words of limitation, there the rule of law in the case of grants and deeds, that without words of limitation it shall be for life, and for life only, takes place.” *—Doe*vs. *Fildes, Cowp.*840, 841. — But, further, the rule of law is peremptory that the heir shall not tie disinherited, unless by plain and cogent inference arising from the words of the will. — *Doe*vs. Dring, 2 *M. & S.*454.—“ If the intention of the testator is doubtful,” says Lord *Mansfield,*“the rule of law must take place.” *Loveacres*vs. Blight, *Cowp.*355.—So in *Kellett*vs. *Kellett,*(3 *Dow.*248,) it was laid down by Lords *Redesdale*and *Eldon,*as a clear rule of law, that if the court cannot find words sufficient to carry a fee, though they themselves be satisfied *beyond the possibility of a doubt,*as to what the intention of the party was, they must adhere to the fixed legal construction, because the heir cannot be disinherited, except by express words, or necessary implication.—2 *Prest. Est.*196,160. — It is said by the Court, in the case in the text, that “ A life estate in *wild*land cannot be considered of any value ; and that the inference is clear, that a devise of such land*, without words of inheritance, carries a fee.” Both the premises and the conclusion are denied. A life estate in such land is valuable. The Court say, “ No one would undertake the bringing of it into a state of cultivation, waste being out of the question, if his estate might be determined before he should be reimbursed his labor and expense.” But how does it appear that great profit might not be derived, over and above the labor and expense of cultivation, even during the life estate? The case finds that the lands “ were in a *306state of nature, uncultivated., and covered with woods and brush.’ But whether there were any, or how many, timber trees, does not appear. And it does not appeal that they could not be easily subjected to cultivation; nor is it quite clear that by so doing the tenant would be chargeable with waste, as it could be no damage, but a benefit, to the inheritance. — *Governors,*&c., *Harrow School*vs. *Alderton,*2 *B. & P.*87. — *Hastings*vs. *Crunkleton,*3 *Yeates,*261. — *Jackson vs. Andrew,*18 *Johns.*431.— But if the lands could not be subjected to cultivation, jet some advantage might be derived from them. It is true that the court;. of this commonwealth have regarded a life estate in such lands to be worthless. — *Conner vs. Shepherd,*15 *Mass Rep.*164.— *Webb*vs. *Townsend,*1 *Pick.*21. — But these decisions were founded on the assumption of what is not true, namely, that a tenant for life can derive no possible benefit from such lands without committing waste. What is waste, in this country, is a question not entirely free from difficulty. It may often depend on another question, equally unsettled, namely, what are timber trees. The law upon this subject, throughout *England,*is not uniform. And the *English*law is not strictly applicable *here.—Hastings*vs. *Crunkleton,*3 *Yeates, 261.—Findlay vs Smith,*6 *Munf.*134. — *Jackson vs.*Brownson, 7 *Johns*227. — *Jackson*vs. *Sellick,*8 *Johns.*262. — *Ballentine*vs. *Poyner,*2 *Hayw.*110. — *Parkins*vs. *Cox,*2 *Hayw.*339. — *Elliot vs. Smith,*2 N. *H. Rep.*430. — According to the cases last referred to, it is clear that a tenant for life may, to a certain extent, cut wood from waste lands, and derive considerable benefit therefrom, without incurring a charge of waste. But if it should be admitted that a life estate in such lands, unless held without impeach ment for waste, were of no value, it would not necessarily follow that, by a devise of them, the testator intended to pass a fee. It might, with as much reason at least, be presumed that he intended to give a life estate, without impeachment for waste, if it were allowable, to the condition of the lands, at all to discover his intent. But whatever may be the condition of the premises devised, and whether a life estate in them be valuable or worthless, since the language of the will, interpreted by the settled rules of construction, is intelligible, clear, and unequivocal, the intention of the testator must be collected only from the expressions used on the face of it. Otherwise, to use the words of Lord *Hale,*“ how could there be any certainty ? A will would be any thing, every thing, nothing.’’ — 1 *Mod.*310, *Fry*vs. *Porter.*— “If we-once travel into the affairs of the testator, and leave the will, says Lord *Holt,*we shall not know the mind of the testator by his words, but by his circumstances.”— *Cole*vs. *Rawlinson,*1 *Salk.*234. — If the intention of the testator, from facts *dehors*the will, appear to have been to give an estate in fee, and by the will, upon a legal construction of the words of it, an estate for life only is given, it can only be said, *Quod voluit non dixit.*It is said by the court, that averments are received of facts which were known to the testator, and which may reasonably be presumed to have influenced him in the disposition of his property. But no authorities are cited to show that such averments *dehors*the will have ever been allowed, in a case like this, to show the intent of the testator, except the case of *Ridgway*vs. *Parker,*referred to by *Parsons,*C. J. If this case be correctly reported in the note, the decision was clearly wrong; and the reasons given for it would quite as well have maintained a decision directly the reverse of that which it is said the court pronounced.—Ed.]