APRIL TERM, 1772.

Lib. D. D. No. 18.

#### Thomas Winchester and wife’s Lessee *against*James Tilghman.

THIS was an ejectment for a parcel of land, called *Davis’s*Pharsalia, lying in *¡^iieen Ann’s*County.

It appeared by the special verdict found in this case, that *John Davis*being seised in fee of the land in question, made his will, with the following introduction j “ and as “ for such worldly estate as it hath pleased God to bless “ me withal, I give, devise, and bequeath the same,' in “ manner and form followingthen followed the following devises. “ First, I give and bequeath unto my wife, “ the house and plantation, for the term of her life.” “ Item., I give and bequeath to my granddaughter, part of a “ tract of land called *Widow’s*Chance, to her and the heirs “ male of her body, lawfully begotten, for ever.” “ Item, “ I give and bequeath to my son Tamberlin, and the heirs “male of his. body, all the residue of the said tract.” “ Item, I give and bequeath unto my daughter Elizabeth, “ 300 acres of land, lying in Kent, and *piteen Ann’s*“ County, called Pharsalia, but no share or part of my “ personal estate.” And the only question which arose on the special verdict, was whether *Elizabeth*took an es» *453tute for life, or an estate in fee, by the devise of *Pharsalia.*The defendant claimed as a purchaser from the devisee, and the plaintiff as heir at law.

*Paca,*for plaintiff.

*Hollyday,*for defendant.

The Provincial Court gave judgment for the defendant. The plaintiff brought a writ of error to the Court of Ap- j peals, where, at *February*Term, 1775, the cause was ¡ argued.

*S. Chase*and *Paca,*for plaintiff.

*Johnson,*Tilghman, *Cooke*and *Hollyday,*for defendant.

*Cooke,*for defendant.

There is no rule of law better founded in justice, and more universally known and adhered to, than that the intent of a testator, shall prevail in the construction of his will, where he does not mean to convey an estate, repugnant to the principles and policy of the law. In this instance, the intent of the testator, evidently appeared to give the fee by this devise, and such intent appearing, the Court had the power of giving effect to it.

The preamble of the will evinces his intention to dispose of the whole of his estate, and not to die intestate as to any part of it. Construe this a devise for life only, and there will be a chasm in the will, as to the disposition of the reversion, though the testator did not intend it.

This then, being the intent of the testator, what are the rules which the Courts have adopted in similar cases ? in *Cases temp. Talbot,*157. 286. 3 *P. Wms.*295. 2 *Atk.*38. *Barnard,*13. the intention is inferred from the introductory clause; but it may perhaps be objected, that in the cases cited, the word estate is repeated in the devising clause, and therefore are not applicable to this devise. In 1 *Atk.*432. *1 Burr. 271. 2 Vern.*690. *Barnard.*391. 2 *Stra.*1020. 1 Wils. 333. 3 *Burr.*1618. the word estate is not repeated *454in the devising clause. In 2 *Mod.*25, 26. unless the devise js construed to be a fee, there may be a loss which the Court will prevent if possible. By *Gilb. Dev. 17. 3 Corny ris Dig-*22, *Barr. Ob. on Stat.*446. no form of words are necessary to pass a'fee by devise, but if the intent appear, it is sufficient. It may be urged, that the heir at law is in all cases to be favoured, and that he shall never be disinherited but by express devise, or by necessary implication. The rule as a general one is good *; it*was originally fpunded on policy, and the principles of natural justice. Formerly, while the feudal system prevailed, estates were unalienable, and the eldest son inherited, as being the soonest and best able tp do the duties of the feud. During those barbarous ages the rights of primogeniture were first established, and when the personal services of the tenant became no longer necessary, and the statute of *Denry*VIII. permitted a disposition by last will and testament, still the Courts adhered to the rule after the reasons upon which it was established, ceased; and upon a principle of natural justice, would not suppose the testator intended a benefit to a stranger in preference to his heir, unless it appeared by express words, or a necessary implication. As a general rule, it is still a good one, but it will pot apply with the same force where the devise is to the younger children, as where it is tp a stranger; for every man. is as much bound to provide for them, and by the ties of nature is as much disposed to do it, as he is for his heir at law. Upon this principle, the Courts have long been grasping at every intendment in favour pf younger children, and will lay hold of many circumstances to support a provision in their favour, which would not have any influence in the case of a stranger. In 2 *Vez. SO.*if there be a devise to a child, a fee passes, if the smallest circumstance occurs to support the intendment, and take it out of the general rule of law. The defect in the surrender of a copyhold, will be supplied in favour of a younger child. *t'Vern.*132. But it was refused in favour of a grandchild. 1 P. Wmso 61. 1 *Vez.*122. In 1 Vez. 15. 421. 2 P, *455*Wms.*194. 3 Connjn, 22. *Barr.*446. the construction was in favour of a younger child, against the heir at law. The intent expressed in the preamble of this will, to dispose of all his worldly estate, cannot be carried into execution but by construing this devise a fee ; such construction, therefore, arises by necessary implication, which is sufficient to disinherit the heir, on the strict principle.

*S.*Chase, for plaintiff. (Notes.)

The word estate is as significant and proper to devise the interest of the devisor, as the term heirs ; as, when the devisor says, u I give *all my estate*in *Black Acre*to *AP*Cites 1 *Roll. Abr.*834. 2 *P.*Wms» 523. 2 *Fern.*664. *Free. in Chan.*264. 1 *Salk.*236. 4 *Mod.*89. Styles, 281. 2 *'Lev.*91. 1 *Mod. 100.*2 *Ch. Ca.*262. 2 Fern. 687. 690. 695. 6 *Plod.*106. 2 *Atk.*38. *Barnard,*c. 13. 2 *P.*Wmé. 198. *Law of*Devises, 28, 29. The word estate passes a fee as the case may be. 2 *Raym.*1326. 3 *Mod.*45. *Conn*337. 12 *Mod.*592. *Andrexvs,*210. The words, *as for such xvorldly*estate, are plainly expressive of an intention to dispose of the *xvhole*estate, but if *Elizabeth*does *not take a*fee-simple, the *whole is not*disposed of. Cites 3 *P. Wms.*295. *Tanner*v. Wise, S. C. *Ca. temp.*Talbot, 284. *Ca. temp.*Talbot, 157. Cited *Burr.*271. *Wils.*333. *Grayson*v. *Atkynson.*3 *Wils.*414. *Frogmorton*v. *Wright and Kershaw.*2 *Atk.*102. *Timewell*v. *Perkins. 1 Vez.*226. *Goodwin*v. *Goodwin.*2 *Vez.*49. 3 *Atk.*231. *Southcot and*Watson. 2 *Str.*1080. *Ca. temp. Hardw.*and Lee, 142. 2 *P. Wms.*195. There must be words as well as im tention to pass away real estate. It is a tule of law, that an heir is not to be disinherited unless it be by express words or a necessary implications Cites *Andr.*200. 12 *Mod.*592. 1 *Ray.*185. *Free, in Chan.*439. 452. *Rep. in Eq.*115. 120. 2 *Vern.*722. *Plow.*340. 1 *Inst.*226. 319. b. 1 *Co. Shelly’s*case. Moor, 352. *Cro. Eliz.*422. 1 *P.*Wms. 371. 399. 2 *P. Wms.*258. 2 496. *Gilb. Eq.*Rep. 115. *Cro. Eliz.*16. *Faugh.*263. 353. *456164. *Cro. Car.*450. 1 *Eq. Abr.*196. 207. 2 *Bac. Abr.*81. 1 *Sid.*191. 1 *Lev.*130. 3 *Cro.*292. 3 *Atk.*8. 10. 689. 747. *Rep. temp.*Talbot, 52, *Cro. Car.*269. Lucas, 520. That the words of the devise pass only an estate for life. Cites *Moor,*52. *Salk.*235. 239. 3 *Cro.*369. *Co. Litt.*9. b. *Bro. Abr.*tit. Devise, 33. 1 *Roll. Abr.*834. 844. letter M. 10 *Co.*78. Moor, 772. Fm. tit. Devise, 208. pi. 19. *Perk.*s. 556. 2 Rwisi. 180. 2 J«r/. 13, 14. 1 Czr/. 191. PFz'Zs. 80. 2 *Vez.*50. Cro. *Eliz.*497, 498. The word *lands*in a will passes only an estate for life, but the word hereditaments will pass a fee. 2 *Salk.*685. 11 *Mod.*102. *Cro. Car.*292.

*R.*Goldsborovgh, for defendant. (Notes.)

Contended, that the intention of the testator should prevail, and that when a man gives lands to his children, he most commonly means an estate in fee. *Vez.*49. And to shew that the introductory clause carried with it a fee, he cited *Ca. temp.*Talbot, 157. where the following devise, “ *As touching my -worldly*estate, I give unto my mother “ *all my estate*at *Nbrthwich for*life, *and to my nephew*41 *Thomas*Dodson, *after her*death, *upon*condition,” was held to pass a fee to the nephew. And 2 *Atk.*the words 44 All the estate I have I intend to settle: my estate in “ *Kirby Hall*I give to my brother, after his death to 44 *Tuffnellf*were held to pass a fee to *Tujfnell. Barnard,*391. The case of *Wild*and *Lezvis,. 1 Atk.*431. to prove the Chancellor regarded the introductory clause. 1 *Burr.*271. *Hope*v. Taylor, 1 *Wils.*333. where the introductory clause is 44 *as to all my personal*estate,” &c. That in 3 *Burr.*1618. it was argued, that the sweeping clause of the personal estate proved, that the testator thought he had disposed of all his real estate; and applies it to the present will, which has a similar clause. That in the will in question the words, “ *but no share or part of my personal*44 estate,” means that he gave *Elizabeth Pharsalia*in lieu of her part of the personal estate, therefore it is the same *457.as paying so much for it, and a devise of land paying with it a gross sum creates a fee. What benefit would it be to Elizabeth, if she took only an estate for life in umcultivated land ?

Paca, for plaintiff.

This cannot be a fee-simple by implication. It must be a *necessary*implication. What is meant by necessary implication excludes a *possible*or *probable*implication. Do the circumstances here shew a necessary intention to pass a fee-simple. Necessary implication must arise from, words that denote the plain intention of the devisor, and which cannot be satisfied without such a construction. It must be found in the special verdict, that the land was devised in lieu of the personal estate, before the Court can take notice of it. A sweeping clause was not necessary, for it would have been nugatory to have devised the reversion in fee to the heir, if he meant he should take the fee after the devise for life, because the heir would take by-descent. 3 *Atk.*231. *(Darn.*&? East, 411. 1 *Era,*Ch. *Ca.*437.)

At *February*term, 1775, the Court of Appeals affirmed the judgment of the Provincial Court.