APRIL TERM, 1772.

Lib. D. D. No. 18.

#### Walter Hyde Hoxton’s Lessee *against*Richard Gardiner and Benjamin Wood.

EJECTMENT for a tract of land called *NutweiPs*Branch, lying in *Charles*County.

By the special verdict found in this case, it appeared, that *Ignatius Craycroft*was seised in fee-simple of the land in question, and on the 9th of August, *1704,*made his last will and testament, in which were, amongst others, the following devises: “ Item, I give and bequeath unto my son *Charles Craycroft*and his heirs for ever, all that *438“ parcel of land I bought of *James Nut-well,*called True- “ *man’s Place,*lying in *Charles*County, containing 500. “ acres.” “ *Item,*I give unto my said son *Charles Cray-*“ *croft*one other parcel of land called *Nut-well’s Branches,*“ *(being the land in dispute,)*joining to the said *True-*“ *man's*Place, being by patent 200 acres.” “ *Item,,*I give • ‘ unto my son *Charles Craycroft*and *his heirs,*100 acres of land'called *Denial.”*“ *Item,*My will is, that if my “ son *Charles*should depart this life before he arrive to “■ the age of twenty-one years, then all his land shall be equally divided between his brothers *John*and *Henry*“ *Craycroft.” Charles,*the devisee, died, leaving issue,, after he had attained the age of twenty-one years. The testator died, leaving besides *Charles,*two other sons, *John*and *Henry, John*being the eldest son, and heir at law. The plaintiff claimed title as the heir at law of the devisor, and the defendant held under the devise; and the question was, whether *Charles,*the devisee, took an estate in fee-simple by the devise, or only an estate for life.

*Hall,*for plaintiff.

The question is, had *Charles,*by the devise of his far ther, an estate for life, or an estate of inheritance ? We contend he had an estate for life only. What is the effect of the word *item*in a will ? *Item*is a word usual in a will to introduce new distinct matter, and therefore is not to be influenced by a precedent or subsequent sentence, unless the sentence would be imperfect and insensible without reference. In this instance, the word *item*does not conjoin the sentences, and carry on the testator’s intent, and import a meaning to give the like estate as was expressed in the precedent sentence. See the case of *Hopewell*v. *Ackland, Salk.*239. and *Cole*v. Rawlinson, 234. *Holt,*744. S. C. *Item,*in a will, used in the sense of *and*or *also,*is only made use of to distinguish clauses. 1 *Atk.*438. If a man devises in this manner, “ I devise *Black Acre*to my *439*ic*daughter, and to the heirs of her body, Item, I devise unto e‘ my said daughter *White Acre,”*the daughter shall have only an estate for life in *White Acre,*because the word *item*means no more than *also,*and only connects two complete and distinct sentences* But if a man devises *Black Acre*to one in tail, *and also White Acre,*the devisee shall have an estate fail in *White Acre*also, for this altogether makes but a whole sentence, and the words of limitation extend to both divisions of the sentence. *Vide Roll. Abr.*844. s. 1, 2, 3. 1 *Sid.*105. 8 *Fin. Abr.*215, 216; tit. *Devise. Moore, 53.*c. 153. 1 *Roll. Rep.*369. 3 *Bulst.*127» 3 *Cro.*369. *Spirt*v. *Bence. Vaugh.*262. *Gardener*v. *Shelden.*2 *Burr.*769, 770, 771. 2 *Wils.*80. *Kirby*v. *Holmes. Comyns’ Rep.*353. *Fowler v. Blackwell.*Where words of limitation are not added, the rule is, they give only an estate for life, and most frequently contrary to the intent of the testator, but the law cannot help it. The rule must be adhered to, and it is better it should be so than the rule to be broken in upon. 2 *Fez.*50. Th.e heir at law is not to be disinherited without express words. 1 *Eq. Abr.*196. 2 *Bac. Abr.*81. 1 *Siderf, 191. Bowman,*v. *Milbanke. 1 Lev.*130. S. C. 2 *Vent.*56. 1 *Eq. Abr.*176. s. 9, 10, 11. Not to be disinherited by ambiguous or doubtful expression. It must be by a necessary implication.

*Cooke,*for defendant.

The question is, what estate did *Charles Cray croft,*the devisee, take in the parcel of land called *Nutxvell’s Branches ? ,*

There is no rule of law more universal, and of more general extent, than that the intention of the testator shall prevail in the construction of wills. It can never admit of an exception, but where the intention is to create some estate, repugnant to the principles and the policy of the law. To discover that intent, Judges are to suppose themselves to be in the place of the testator, to consider *440the whole scope and design of the will, and so expound one sentence by another, that every word of it may stand if possible, and as *Plowden*(540.) very emphatically expresses it, that not a jot may be confounded j to that end, the Courts have sometimes transposed sentences, sometimes rejected, and sometimes added to them; in short, people so often differ in expression when they mean the same thing, that cases upon wills are not much to be relied upon ; the smallest circumstances often have the greatest weight in discovering the intention of the testator, that every will must and ought to stand upon its own bottom, and be construed by the particular circumstances attending it. 3 *Atk.*408. 2 *Wils.*322.

If these principles are well founded, and I trust I shall not hear them controverted ; the simple question now before the Court is, what was the intention of the testator in making this will? For it cannot be urged, that the estate we contend was meant to be given to *Charles*Craycroft, under whom the defendant claims, is repugnant to the principles and policy of the law.

If the construction of this devise depended on that particular clause of the will only, by which it is bequeathed,I confess, that as he had used different modes of expression in the clauses immediately preceding and subsequent to it, I should think that he meant to convey different estates; but when I consider the whole will together, and compare that clause with the other parts of it, I am convinced that although the devisor has used different words in each of those clauses, where he devises to Charles, that he did not know the legal import of them, but intended to give him the same estate in each.

Here *were*three tracts of land adjoining, and contiguous to each other, amounting to 800 acres, which he devised to his son *Charles;*that he did not intend these three tracts should ever be separated from *Charles*or his heirs, I infer from the subsequent clause in the will, where he directs, that in case *Charles*died before the age of 21, all of them were to go over to *John*and *Henry.*It must *441certainly have been his intention, that all of them were to go over, or none, or he would have declared, that in case *Charles*attained the age of 21, that then *NutwelPs Branches*should go to *John;*but he has made no such declaration, and his giving it to him on the event of *Charles*dying under age, shews he did not intend he should have it, if *Charles*attained his age. He never could intend that *John*should have any interest in *NutwelPs Branches,*as heir at law, because he had appointed him to take a devise, by giving him a contingent interest different from what the law would have cast upon him; and it would be absurd to say that he could have an estate or interest, existing in him as devisee and heir at law, at the same time, because one must merge in the other. It wa§ intended he should take as devisee, if he took at all, and the Court will never admit him to take as heir at law, to the prejudice of Charles, a younger child, against the intention of the testator, which is the *anima legis*of testaments. If it be asked, if he intended to give *Charles*a greater estate than for life in *NutwelPs*Branch, why did he not use the same expression, ns he does in the other bequests ? I ask, why has he varied the expression in the first and last devise to Charles, why say, to him and his' heirs *for ever*in the first, and omit the Words *for ever*in the last ? He meant the same thing in all, but varied the expression in each, without knowing the legal import of the words. He had no idea that having expressed his intention, that *John*should take as devisee with Henry, on the event of *Charles*dying under age, that he should ever take in any other manner, or he would have said so. The whole three tracts were to go over together, on that contingency’s happening, or to remain to *Charles*and his heirs, if it did not happen; so if it should be asked, how came that contingency to be annexed to the devise to Charles, and not to any of the other children ? the reason is plain; *Charles*was the youngest son, and being the youngest son, it was most probable if any died under age, it would be him. He hat! provided amply for the heir at law, and annexed that condition not with a view *442to prejudice *Charles.,*but to benefit *Henry*the youngest son, and to prevent *John*from taking the whole as heir at law.

But it is said the heir at law shall never be disinherited, unless by express words, or a necessary implication, and that this is neither. That the Courts will not by intendment, disinherit the heir at law in favour of a stranger, I acknowledge, and the law in that particular is founded on very political and humane principles, because every man is under a natural obligation to provide for his issue; and therefore the J udges have determined not to give themselves that liberty of forming conjectures on the will, in prejudice of the heir at law, as there would be greater danger in erring, from a supposition that every man would intend a benefit to his heir, in preference to a stranger, unless he expressed the contrary in direct terms; but the reason does not hold against younger children. There is the same obligation to provide for them, as there is to provide for the eldest son. The Court will, in such a case, take the whole scope of the will into consideration, and will not presume an intention to disinherit any of them, unless it is clearly expressed, but will support the provision intended for a younger child, if the intention can be collected, though it be not expressed, or arise by necessary implication. 2 *P.*Wms. 194. 3 *Atk.*619. *Sty.*278. 1 *Vez.*421. 122. *IS.*2 *Vez.*49. These authorities, and the reasons of them, will go a great way in establishing the construction contended for. But there are other reasons which will shew clearly, the plaintiif has no title as heir at law by necessary implication, if such a construction of this will is to be given, that the whole of it shall stand and be carried into execution.

. By this will, it is not denied, but that a fee-simple is given in express terms to Charles, in the lands called *Trueman's*place, and the Denial, with an executory devise to *John*and Henry, on the contingency of *Charles*dying- under age. But if *Charles*takes an estate for life, only in *NutwelPs*Branch, the limitation over of that is a contingent remainder. *1 Lev. 11.*2 *Sound.*388. It was *443certainly the intention of the testator, that if *Charles*died under age, without issue, the whole of those tracts should go over to *John*and *Henry,*and he could never intend that *Charles*should have it in his power to prevent it; but if he had only an estate for life in *NutwelPs*Branch, and the remainder over contingent, by a fine or feoffment, or being attainted of treason, felony, &c. he might have discontinued the particular estate, and thereby prevent the remainder ever taking place, though he should afterwards die under age, for if it could not take place *eo instanti*that the particular estate determined, it could never vest, which it could not do in this case, because the remainder was not to take effect till after his death. To prevent that risk, and to carry the intention into execution, the Court must necessarily construe *Charles*to take the same estate in the whole, and make the limitation over an executory devise, that all the land, as he expresses it, should go over to *John*and Henry, on the contingency happening. Vid> *'Holt.*370. *Fin.*Devise, 269. 3 Comyn, 227, 228.

There is still more in this case; for if the Court should be of opinion, that *Charles*did not take a fee in *NutwelPs*Branch, as well as in the other two tracts, and that, consequently, the limitation over to be an executory devise of die whole, the intention could not be carried into execution, though the contingency had actually happened, for the limitation oyer of all the land being by the same clause, they must all go over in the same manner, and the same words must not be involved in different rules of construction, which would be the case, if they were to take part as executory devisees, and part under a contingent "remainder. To avoid that absurdity, the Court will construe the same words, to have the same operation as to all the land, by giving *Charles*a fee in the whole, to go over under an executory devise, if the contingency happened, or to have the same estate in each if it did not. 2 *Fern.*324.

Even admit the testator’s particular intent, which he has not expressed, had been, that *Charles*should have only an estate for life in *Nutxvell’s*Branch, yet as he has expressed. *444a general intent that it should go over, on the death of, *Charles*under age, the particular intent must give way to the general one, and the Court so marshall the estates, that the general intent be carried into execution, which can on]y ge done by giving the construction"! contend for. See *Co. Litt.*3. a. *Cro. Eliz.*330. *Latch.*136. 3 *Ch. Rep.*87. *Buis.*113. *Show. P. C.*211. 1 *Verm*132.

A. *Chase,*for the defendant.

What estate did *Charles*Craycroft, the devisee, take in the parcel of land called *NutweWs Branches f*

It appears clearly, that all the lands devised to *Charles*were to go over to his brothers *John*and *Henry*on the same contingency, which cannot be unless the first and third devises to him receive the same construction. In the case of *Strong*v. *Cummin,*2 *Burr.*767. the testator devised the chief part of his copyhold lands to his eldest son *Robert*and his heirs, after the death of his wife, and he devised “ to his son *John*all that belonged to *Smart*“ and *Picked Lands,*and to his heirs after his mother’s *u*decease; *and in case that your son Robert or John*die, H *then your son William is to have all that belong to Smart u and Picked Lands, and to his heirs.” John*died in the life-time of his mother *without issue,*intestate, and upwards of twenty-one years of age. The dispute was between William, the third son, and *Robert,*the heir at law. ' The Court were of opinion, that the testator did not mean mere estates for lives to his two eldest sons; and if he did mean to give them mere estates for lives, he meant a dying upon some contingency. One was, *if they died ■without issue,*the other, if they died under the age of twenty-one.

In the case of *Frogmorton*v. *Holyday,*3 *Burr.*1618. the testatrix devised, “ As for my worldly affairs and *“*estate, I devise unto my son *John*all that house and “ garden,” &c. chai’ged with a payment of *SOI.*and *if he should happen to die in his minority,*then to her three *445daughters. The dispute was between the purchaser of the heir and the devisee. The question was, whether *John*took an estate in fee or for life. Page 1623. It *John*was only to take an estate for life, the time of his death must be immaterial to the devise over; but limiting it over only upon the contingency of his dying in his minority, shews that the testator intended him to have an estate in fee. The present case is stronger, for the lands in question are not only limited over upon a similar contingency, but coupled with and limited over with other lands, in which undoubtedly the devisee *Charles*took a fee.

At common law, lands were not devisable unless by particular custom. The statute 32 *II.*VIII. enabled persons having lands to devise *in writing*at their free will and pleasure, and required no form .of words to pass a fee. The intention, therefore, of the testator, is to prevail in the construction of wills, unless i'epugnant to the principles and policy of law, as to create a perpetuity, or restrain a tenant in tail from 'suffering a recovery. 2 *Burr.*1108. Judges, therefore, to comply with the intention of the testator, will transpose, reject, or supply words in a will. And the whole of a will is to be taken together, and every part is to be carried into execution.

What is the intent of the testator in the present case ? He devises two tracts in fee, and a third without any words of limitation; he devises all the -whole three to go over on the same contingency to John, his heir, and his son Henry, that is, on the death of their brother *Charles,*under age. The testator did not intend *John*should take *Hutz veils Branches*as heir, but as devisee with his brother *Henry.*And where another estate is created by the will than would descend to the heir at law, or where the quality of the estate is altered, there the disposition by will shall prevail, though he is the heir at law. *Eq. Abr.*206. pi. 4. 2 Bac. *Abr. 79,*80.

The plaintiff contends, that *Charles*took a fee in *True-man's Place*and the Denial, with an executory devise over to *John*and Henry, and an estate for life in *HutzvelPs**446*Branches,*with a contingent remainder to *John*and *Henry.*It is a rule, that a will shall never operate by way of executory devise, if it may take effect by way of remainder, that is, if there is a sufficient estate to support it. *Qilb.*Devises, 61. *Carth.*310. Executory devises are contrary to the strict rules of law, and were at first invented in furtherance of justice, and to carry into execution the manifest intention of testators.

*Jenings,*for the plaintiff.

. The first question is, whether, by the words of the devise, an estate for life passes. 2. If the words used in the. will are such as will only pass an estate for life, whether, taking the whole will together, there is not sufficient appearing from the different parts off the will to pass a fee ?

It is clear that only an estate for life passes by the words of the devise. It is necessary that rules should be established for the disposition of property, otherwise there would be no certainty, nor could any advice be given. The rule then is, that the word *heirs*passes a fee, *heirs of the body*an estate tail, and if there are no words, an estate for life only passes. *Cro. Car.*386, 387. *Spirt*v. *Bence*is in point, though a precedent and subsequent fee was given. 2 *Wils.*8O. *Comyns,*353.

It is contended, that though this is the rule of law, yet if, from the several circumstances of the will it should appear to be the intent of the party, the words must give \vay; and that it was the intent of the testator to pass a fee, they say is proved by the case of *Strong*v. *Cummin, 2 Burr.*771.

Where we depart from the words of a will to disinherit the heir by implication, these rules must be observed: 1. The heir at law is not to be disinherited by a possible, but by a necessary implication, and therefore if the words of the will may be preserved, they shall. 2. All the-words of the will must be regarded, and though some may raise a presumption he intended a fee, yet if there are others *447which raise a different supposition, as it renders it doubtful, the words shall prevail.

As to the first point: To take the estate from the heir, it must be a necessary implication, that is, the words will admit of no other construction. Instance the cases of a devise to a stranger or the younger son after the death of the wife, and to the elder son after the death of the wife ; in the last case it is a devise to the wife by implication, but not in the first; and the reason is, because the first case, of the devise to the younger son or a stranger is only a possible devise by implication to the wife; but to the eldest son it is a devise from necessity. Vaugh. *Gardiner*v. Shelden, 262. 267. 1 *P.*Wms. 38. So if a man devises to another, and if *he dies before twenty-one then to go to his heirs,*this is a fee if he attains his age of twenty-one, otherwise the words would be nugatory, for it would go to the heirs of course, on the expiration of the life *estate;*but had it been, ‘ if he dies before twenty-one, then to a stranger,’ it would be otherwise, and mark the time when the stranger should take. 2 *Saund.*388. *Purefroy*v. *Rogers.*A query is added, but the case is relied on. 3 *Burr.*1618.

To apply this reasoning — An estate for life from the words is admitted; a devise by implication is opposed to it. Is it a necessary implication? We say not, and the devise over shall apply only to the fee-simple lands; therefore the reason as to the words being nugatory does not apply. Admitting for argument sake, if there had been but one tract, it might have admitted of a different construction ; but that is materially variant from the present case.

As to the second point. If the presumption is both ways, the words shall stand. The only words on which it can be supposed he intended to pass a fee, are where he limits the land over in case his son dies under age. This is a presumption, say they, of his intent to pass a fee on the happening of the contingency, otherwise the words would be nugatory. It has already been shewn, that they *448would not be nugatory here. But there are presumptions against the intent to pass a fee ; for it is held, that if a marl uses words of limitation in some devises properly, and not in others, it is a presumption he intended different devises. 2 *Wils.*80. *Kirby*v. *Holmes.*In this will there, are proper words of limitation added to the other devises; if he thought them necessary in the one, why not in the other? In the bequest of the personal estate, words of limitation are not added, which shews the testator did not think them necessary, and knew when to use them. This is a presumption in our favour. If we go, then, on presumption or supposition, the arguments are equal, therefore the words shall prevail. Cases, unless they are similar in circumstances, ought not to be relied on. 2 *Wils.*324. We' have shewn one exactly in point; *(Cornyns,*353.) they have shewn none.

The case of *Frogmorton*v. *Holyday,*3 *Burr.*1618. was cited to shew, that the devisor, by giving the lands over in. case the devisee died in his minority, intended to give him a fee if he attained his age. But in that case there were many circumstances to indicate the intent of the testator. 1. The introductory clause. 2. The land was charged with a sum, which, if an estate in fee was not given, might tend to the prejudice of the devisee. See .Lord *MansjieldPs*argument, p. 1623. *Wihnofs,*1625. The reason the Court went upon was, that by the words if he die before his age of twenty-one, the words giving him the estate would have been nugatory if he took not a fee, as his dying at any time would vest- the limitation over, as well as confining his death to his minority. But the words in the present case will not be nugatory, as this limitation over may operate on the lands given in fee, though not on the life estate, and therefore there is no reason to extend them to the others.

The meaning of the rule, that words shall be construed to have effect, is that they shall have *some*effect, and not be rejected, and not that they shall have a general effect: as a devise to a man and his heirs male shall not be con*449atraed a fee, they having effect as an estate tail. Here the words have some effect by limiting over the fee-simple estate; the rule, then, is complied with, which makes it different from the case cited, because there they could have no effect without passing a fee, there being but one tract of land devised. In the case of *Strong*v. Cummin, 2 *Burr. 770.*there was an express estate in fee given, and no other tract mentioned, which makes a great difference between that case and this; and the point there was when the fee should determine. The devisee had no other lands given to him, so that the necessity of the construction failed in that case. The devise, in that will, to the eldest son Robert, is in the same words as the devise to *John^*which words, there was no doubt, conveyed a fee. Thev cannot annex a different intent to the same *words;*and here they wish to annex the same idea to different words of the testator.

The word *item*is used to introduce new and distinct matter, and not to influence other clauses. The word also, if used in the same sentence, and on the same subject, couples, otherwise not. *Per*Holt, 1 *Salk.*234, 235. The other judges do not pretend to argue, that if the word *also*was in another clause, it should conjoin the two clauses ; as where there was a devise to *A.*and his heirs, *item 1*give to *B.*the latter has only an estate for life, the word *item*signifying in the same manner, that is, by the *same -will,*he gives, &c. The word *item*marks a distinct clause, and means *and.*There should be no ambiguity in words, which are to disinherit the heirs. He shall not be disinherited by implication, that is, when the intent is doubtful, and may be construed one way as well as the other. It must be by necessary implication, as where either the devisee must have the thing, or no one else can have it. Therefore if the implication be only possible, but not necessary, the intent is not to disinherit the heir. *Faugh.*262. If lands are devised to the heir, after the death of the wife, it is by implication a devise of the wife for life.. *450because if the wife does not take, no one else can, the heir being excluded; but if the devise is not to the heir, but to another after the wife’s death, it is no devise by implication to the wife, but the lands shall descend to the heir, till the time arrives when the devisee may take. *Vauglu*263, 264, 265. 267'. 1 *Eq. 'Abr.*196. 1 *P. Wms.*38. The clause, *if my son should die before he arrives at the age of*twenty-one, does not give him by implication an estate of inheritance, but only marks the time when the other devisees shall take. *Vaugh.*268.

The Provincial Court gave judgment on the special veiv diet for the defendant.

Opinion of Daniel Dulany, Esquire.

The following case is stated to me for my opinion.

■ *Ignatius Craycroft*seised in fee thereof, devised as follows, the lands after mentioned, viz. *“*Item, I give to my u son *Charles*Craycroft, and *his heirs for*ever, all that land, 81 &c. *calledTruemarPs Place,*lying in *Charles*County. Item, “ I give unto my said son *Charles*Craycroft, one other “ parcel of land called *NutzvelPs*Branches, &c. Item, I *u*give unto my said son *Charles*Craycroft, and his heirs, “ one hundred acres of land called the Denial,” &c.

The question is, what estate did the devisee take in the parcel of land, *NutwelPs Branches ?*

The general rule laid down in the construction of wills, is to observe the intention and design of the testator, but it is also another rule, that the heir at law shall not be disinherited, but by plain words or implication. Notwithstanding the regard professed for the intention and design of the testator, there is great reason to believe that this design is contravened by the application of legal rules; of this a, great Chancellor was so sensible, that he declared he was in doubt whether he had not made as many wills by technical construction, as he had effectuated the intentions of the testator.

*451In the present case, I am inclined to suspect that the testator meant the same estate in all the above devises ; but I must give my opinion, having regard to legal rules, and determinations thereon, that *Charles Cray croft*took only an estate for life, in the land called *NutwelFs*Branches. In the first and third devise, a fee was given, the proper words for that purpose, being inserted, viz. *his heirs.*The argument on this head, is that the testator knew what were the proper words of inheritance, and accordingly used them, and therefore, when he omitted them in the second devise, it is to be presumed .that he did not intend that an Inheritance should pass.

The word *item*is the proper beginning of a distinct clause, and is less favourable than also, and this case is the stronger, because if the second *item*were held a continuation of the first, it ought also to be considered in the same manner as to the third, but the third is plainly distinct and perfect, the word *hcir.s*being therein. Where the second clause is attendant on the first, and cannot be construed without it, the estate limited in the first, shall extend to the second, as if a man devises black acre to *A.*and his heirs, *item*or also, white acre. In the case put *A.*will take an estate in fee, in both black and white acre, but where he devises black acre to *A.*and his heirs, *item*or also, I devise white acre to *A.*there *A.*has only an estate for life, in white acre, for the verb *I*devise, is repeated, and so is the name of the devisee, and therefore the clause is considered as distinct.

The next question put to me is, whether the purchaser, now the possessor, has any remedy under the deed from Mr. *Carroll.*On inspection of the deed, it appears that the words *give*and *grant*are used, which are a warranty *in*law, during the life-time of the grantor. I observe, that there is afterwards an *express*warranty in the deed; but that will not take away the warranty *in law.*Notice ought to be given to Mr- Carroll, if a claim should be made, or a suit brought for the land, which is not to be given up by the possessor till recovered from him. *452Though it is *no part*of the case, it may not be amiss to observe, that there is an express general warranty from *Cray croft*to Mr. *Carroll.*On the 1st point, *vide Mod.*52. *Sail.*239. Comyn, 164. on 2d *Co. Litt.*334.

*Daniel Dulany,*5th April, 1768.