CASE SLV.

#### Morton Waring *vs.*Ann Middleton, Wraggs, and others.

words of in. tynot necessary in a &e simplees-it may plication. * If íhe ,mtentl0!i can be dis-shaiUake *et*fect-

[Tried before Chancellor Desaussure,

February, 1811.]

THE question in this case arises on the will of Miss Judith Wragg, which was executed in the year 1780. She died soon after, unmarried, and without having revoked her will. Among other dispositions of her property she made the following: "I leave to my •tlier, John Wragg, the house and land I have in Charleston, for his life.” *“*I leave to my niece, Ann Manigault, (now Mrs. Middleton, the defendant,) my house and land in Charleston, after the death of my brother John Wragg$ but in case she should die before she comes of age, or is married, I would have it sold and the money equally divided between the surviving nieces.”

Mr. John Wragg, who was the eldest brother, was, according to the then law, heir at law of his sister. He survived her and enjoyed the property in question for life. He died in June, 1796. On his death Mrs. Middleton took possession of the house and lot under the devise to her j and believing she had a fee simple in the land, she sold it to Mr. Morton Waring, the complainant. He made great improvements, and being about tq> sell the estate, and his title being looked into, a doubt arose, whether Mrs. Middleton had a fee simple estate, or a mere life estate. To quiet this doubt, and to enable Mm to sell, be has filed this hill against Mrs. Middleton, and the heirs of the late Mr. John Wragg, who *250would Lave been entitled as heir at law, if the devis'e in ciues^on should be construed to give only a life estate to Mrs. Middleton. AH of them have renounced all c*aTM’ supposing a fee simple clearly vested in Mrs. Middleton, except some minors, of the Georgetown 0p the family, whose guardian was not at liberty to make any waiver of their rights, and one or two adults. in their answer it is insisted that Mrs. Middleton took only a life estate under the devise of her sister’s Will 5 and that on her death, whenever that event shall occur, the fee will devolve on all the heirs of the late Mr. John Wragg, who was *undoubtedly*the heir at law •of the testatrix,

This cause came to a hearing.

•Mr. Bee contended for the complainant, that there was a plain intent in the testatrix to give a fee to her niece, Bliss Manigault, now Mrs. Middleton.. The will devises the lot of land to the testatrix’s brother, Mi*. John Wragg, for his *life;*then to her niece, after the death of her *brothor;*but in case her niece died before she came of age, or before she married, she directs the land to be sold and the money divided between her surviving nieces : but there are no words of inheritance to them, The testatrix when she means to give a life estate, as in the devise to the brother, expressly limits it to •his life. She then instantly devises it to her niece, with■out such limitation. This raises a strong presumption 'thatshe meant to give afee to herniece, provided she did •not die before marriage, or attaining twenty-one years of age.

As to 'necessary'implications, see the case in Will’s reports, p. 142. There is no case in the hooks (but one ■in Comyn’s reports) which has been overruled where a a devise to one person, and in case of that person dying under age, limitation over to another has-been construed to give only a life estate. See 2 Bla. 381 *;*Cowp. 307. •A devise to A. and if he dies under age, then to the ■heirs of the testator, gives a fee to A. Dough 754. See-*251also, Frogmorten v. Holliday, 1 Bla. rep. 535, and 3 Burr, 1618. See also, Douglas 754. See also? other cases in corrohoration, 3 Burr, 1898, 1540 j 1 Burnt. andE. 414 $ Swinh. 157 j 2 Bos. and Puller, 250 j *5*Bos. and Puller 220 *;*5 D. &East. 562, 95 ; 3 Comyn’s digest p. 422, 430 *;*2 Dallas, 244 *; S*East. 516 *;*g East. 141 j 10 East, 410.

DECB.EE,

Mr. Gbimice, for the minors, claiming as part heirs of Mr. John Wragg, contended that the testatrix had not given a fee to Miss Manigault, now Mrs. Middleton. It must be shewn that there is á necessary and inevitable implication to exclude the heir at law. In this case there is no such necessary implication to raise a fee. It is only a devise for life to Mrs. Middleton.

In Frogmoreton’s case there was a residuary clause. The limitation over is not inconsistent with the devise for life to Mrs. Middleton. The limitation over is not to the heir at law her brother, but to the hoeres facti, her neices.,

This case has been very ably argued, hut I think it a very plain case.

Before we go into the examination of the particular clauses in this will, upon the construction of which the decision must turn, I will notice one or two circumstances which were thought of some importance in the argument.

There is no clause in the beginning of this will, declaring an intention to .dispose of the whole of her estate j nor any residuary clause. It is common in cases of wills, in which there is a clause in the beginning of the will declaring an intention to dispose of the whole o.f the estate, to infer from thence, that as the testator avowedly did not mean to die intestate of any part of the estate, the devises even of a doubtful, nature should he construed favorably to extend the estate, and give a fee simple to the devisee $ because a contrary construction would tend (where there was no residuary clause) to produce an intestacy as to some part of the estate*. *252against the express declaration of intent by the testator.

^ was arSue(* vory ingeniously by the young counsel,* who advocated the rights of *the*minors, that *the*ab-such clauses in the will in question, furnished a strong presumption that the testatrix did not mean to ¿jgpoge 0f ap jier estates in the property devised by her, and therefore in all doubtful dévises it was proper to look with an unfavorable eye to the enlargement of the estate into a fee simple. The use made of such preli. miliary and declaratory clauses in wills, is generally greater than they will bear. It is indeed an auxiliary in very doubtful cases ; but I question if ever a decision was made merely on the ground of such a *clause*being inserted or omitted. *They*are make weights in an argument j but one of the scales must have been inclined downward, before any use can be effectually made of it. And this intent to dispose of all the testator’s property and estate, is as inferrable from other circumstances as from an express declaration. In the very case under consideration, there is such a full, minute and particular disposition of all the testatrix’s property down to teakettles, watch trinkets and smelling bottles, that no person can doubt that she intended to dispose of her whole property, and not to leave any part of it to go merely as the law would have given it. And with most persons unlearned in the law, a disposition of real estate without words of inheritance, is considered as absolute a gift of it, as of personal estate.

The testatrix was manifestly inops consilii, at least of legal counsel. And she does not appear to have been at all aware the propriety of the use of words of inheritance as to real estate ; for she disposes of her plantation and negroes to her nephew, Mr. Joseph Smith, without any words of *inheritance; yet*she manifestly intended him to be the chief object of her bounty. Could it be believed! for a moment that she intended to give Mm merely a life estate, and that upon bis death the estate should devolve to her brother, an elderly man *253without a family ? And without the prospect of any ? Certainly not. Yet his claim to a fee simple estate rested on a provision exactly similar to the one under our consideration, to wit, that if he should die under twenty-one years of age, the estate devised to him should go to the surviving nephews and nieces *;*the plantation to go to her nephew Samuel Wragg, but without any words of inheritance even in this last disposition to him.

It is true the devise to Mr. Joseph Smith is encumbered with a charge of 20,000i. which of itself has been considered as giving the fee simple to the devisee ; and rightly. But this only shews in how many ways a fee is raised by implication, to give effect to the intent of the testator. But it is time to proceed to the consideration of the clauses of the will in question on their own intrinsic merits. They have been stated before, and I think it was plainly the intention of the testatrix to give her niece a fee. She gives an express estate for life to her brother, manifestly intending that to be the whole interest he should have in the property. On the expiration of that estate by his death, she gives her niece an estate, which is either a fee or a life estate. If the former be conceded, the question is at an end. If the latter, then this absurdity follows : she gives to the heir at law an express estate for *life;*then to her niece an estate for life ; at the expiration of which the same estate is to devolve in fee on her heir at law, who must be dead before the event can occur. The law does not suppose such an absurdity, when a plain and rational construction gives a different result. The giving an express estate for life to her brother, and then an estate to her niece, with limitations over to lien surviving nieces, on certain events which have not happened, raises an estate in fee by implication. If .she had intended a mere life estate to her niece, she would have expressed it: for she did so as to her brother. If she had intended her surviving nieces to take the estate at all events, at the expiration of Mrs. Middleton’s life, she could have done this in the plainest and simplest way. But she has *254used such words that if Mrs. M. does not take a fee, her surviving nieces on the events which have happened ^ke nothing ; and the heir at law would *by such,*construction take the fee, when it appears she had given him an express life estate m the same property, thereby manifesting her desire that he should have no more. In short, look at this question in any point of light, and there is a plain, necessary and almost inevitable implication of a fee simple estate given to Mrs. Middleton. It is really unnecessary to follow the ingenious course of reasoning by which the complainant’s counsel demonstrated his point. It is enough to say, I am entirely satisfied that the testatrix intended to give a fee to her niece, Mrs. Middleton, and that intention is sufficiently-manifested by a necessary implication *;*and there is no rule of law opposed to it. This question has been often decided. I will not go over the cases at full length. It is enough to refer to a few of the great leading cases.

Devise to A. and if he die under age, to the heirs of the devisor, A has a fee. 3 Comyn’s digest 424 *; 2*Saunder’s, 388. Devise to A. for life, remainder to B. and if B. dies under age to C. and his heirs. B, takes afee. 3 Comyn’s, 425, Moon and others*;*Wills’ rep. 142, Frogmorton v. Halliday; *3*Burr, 1618; 1 Bla. rep. 535; 3 Burr, 1540*;*3 Comyn’s, 430 *;*Baddely v. Lippingwell, 3 Burr, 1533. The later reports are entirely in concurrence with the old decisions.

To conclude. I am clearly of opinion that Mrs. Middleton took a fee under the will in question : consequently that she had a right to dispose of the land. Having done so, her alienee is entitled to be confirmed and quieted in his title. It is therefore ordered and decreed that the title from'Ann M -Mleton to the said Morton Waring, his heirs and assigns, be confirmed ; and that the said Morton Waring, his heirs and assigns, be quieted in the possession of the said property under the said, title; that the costs of those defendants who disclaimed be paid by complainant; and that defendants who. have *255insisted on a title, do pay their own costs, and those of the complainant: reserving rights of minors as. usual,

From this case there was an appeal on the following grounds:

1. Because from the whole tenor of the will, and time when it was made,, the male line throughout are and ought to be preferred, and there is no express exclusion of the heir.

2. Inasmuch as the devise to Ann Manigault is only, in a legal view, a life estate, and cannot by construction he converted into a fee simple*

Thos. S. Gkimse.

March 8, 1811.

These grounds were supported by the following rea* soning.

Grounds of appeal.

1. From the time when testatrix died, viz. 1780, the rights of heirs at law are to be recognised as in England, and the will to he interpreted with a view to them.

2. Testatrix knew of these rights, and could easily ■have negatived them, but there are no introductory words, no residuary clause, not an expression hostile to the primogeniture rights, much less a positive exclusion of them. -

3. Testatrix throughout prefers male to female relatives *;*gives no such superior benefit to any nephew o~ ver the l’est, as to this niece over the others $ places A. Manigault on a level with all the nephews and nieces as to a contingent right to a proportion of the proceeds of a plantation devised on condition subsequent tojos. *Smith;*prefers an entire family of nieces all equally, except the wife of the late Gen. C, Gadsden, and yet gives more to the nephews of the same family, than to A. Middleton’s brothers, if she takes a fee.

4. That a precedent devise even to the heirs is not conclusive.

5. That A. Middleton by the'first part of the clause.» *256has only a life estate, and the latter part is consistent with such, inasmuch as the limitation over only points out what course, different from the legal one, the estate s^10u^ take, within a short given period *-,*but does not therefore exclude the heirs, on the termination of the sa^ jjfe estate at a more distant indefinite period.

Grimice, App’lts’ Sol.

The appeal came to a hearing and was fully argued.

The Court, consisting of Chancellors James, Thomp-g0I^ DESATJSStnE)]E an¿ Gaieeard, affirmed the decree of the Circuit Court, being of opinion that Mrs. Middleton took a fee simple estate, by necessary implication.-

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