case xxxnr.

#### James Clark, his wife, and others, *vs.*John Mikell.

[Tried before Chancellor Besaussure, Charleston,

November, *1810.]*

DEciiEE.

THE only question made in this case for the consideration of the Court, is, whether, under the will of the late Mr. William Joseph Mikell, of Edisto Island, his *169son, John Mikell, is entitled to a fee simple in a tract of land devised to him, or whether he takes a mere life cs-fate, and that the fee descends among all the heirs of the testator, under the act of the legislature of February, 1791, abolishing the rights of primogeniture.

The testator evidently did not mean to die as to any part of his estate, for he says, *<s*as to such worldly goods and estate as it pleased Almighty God to bless me with in this world, I leave, give, devise and bequeath in manner following” — He then proceeds to make a full and minute disposition of his real and personal *estate;*and he says, among other things, *“*In. case my wife Mary should marry, or at the day of her death, I give and bequeath to my son John the choice of one of my two tracts of land, and the other tract of land I direct to he sold by my executors, hereinafter to be named and appointed; and one third of the amount of the land sold I give and bequeath to my daughter Sarah Mikell, one third to my daughter Abigail Mikell, and the remaining third to my grand children, W. Clark, Ann M. Clark, Elizabeth G. Clark and Lydia E. Clark, to be equally divided among them.

The testator’s family consisted of his widow, his son John, his daughters Sarah and Abigail, and his grand children, the Clarks, children of a deceased daughter. He had no other lands than the two tracts spoken of.

There are certainly no words of inheritance in the devise to the son. But the intent to give him an absolute estate in one of the tracts, of which he gives him the choice, seems *manifest;*for he professes, in a preliminary clause, to intend to dispose of his whole estate. Now if the devise to the son be not construed an abso-> lute estate, it will be a mere life estate, and the testator will have died intestate as to the fee simple of that tract. I am aware that this alone is not sufficient to warrant a construction that the devise to the son is a fee; but coupled with other circumstances, it may shew the intent ; and the intent, when ascertained, must prevail.

The other circumstance on which I rely is this ; the *170testator manifestly did not mean to place bis son on a worse footing than his daughters, but rather on a better j yet if the devise to him of one of the .tracts, wliich he should choose, be not deemed a.fee.simple, the A son will be on a worse footing than the daughters j for j.(C (]jrec^s jjjs 0ther tract of land to be.sold and the proceeds of the. sale to be equally divided among his daughters, to the exclusion of his son ; and if he should have only a life estate in the tract, the choice of which is given to him, at .his death the land will revert to the testator’s heirs, and .the daughters and their heirs will come in equally with the heirs of the son for that land.

The decided cases in .this Court .favor this liberality of construction, in order to give effect to the testator’s manifest intent. The case of Mary Fraser and others vs. the executors of J. C, Livingston, and the minor de-visees, decided in May, .1808, goes a great way .to establish this doctrine.

The case under consideration was submitted, without argument. I regret that J was deprived of the benefit of. the lights which learned counsel could have thrown on the question. But I must .decide on the lights which I possess.

Upon the best consideration which I have been able to give, I am of opinion that the devise in this will must, in order to give effect to the intent of the testator, be deem-ed and taken to be a.devise of an absolute estate in that tract of land, which the son may choose,, according to •the will.

.From the above-decree the complainants aforesaid appeal, and as grounds of such, their appeal, state :

1st. Because there are no words of inheritance attached to the devise to John MikelL

2d. Because there are no other words amounting thereto contained in the said will.

3d. Because the conclusion of the Circuit Court, that unless John Milcell took a fee he would he on a worse footing than the testator’s daughters^ was incorrect ip *171point of fact, the Circut Court not having that light before it which the case afforded ; but which from its nature, being viva voce evidence, could not have been then introduced, as the same would have amounted to a and thereby given to appellants’ cause a priority, contrary to the rules of the said Court as aforesaid.

• 4th. Because the late decisions in the Circuit Court- and Court of Appeals in Equity, on which the Circuit-Court relied in its decree, in the appellants’ case, do not" apply to the nature of that case.

Th-. Paricer, sol. for appellants.

*The case came to*a hearing in March, l'81i.-

Mr. Parker, for appellants.

It is an agreed fact' between the parties, that the tract of land chosen by the' son is nearly double the value of the other tract, which is to he sold and the money divided among the daughters.

2 Bos. and Pul. 249, Moore vs. Denn, revises all the cases on the subject, and establishes, that if the intent of the testator appeal’s on the face of the will, *to-*give a fee, it shall be a fee; without any regard to technical words. But the intent must be plain, not dubious.if it is dubious the Court will not construe it a fee, and in this case it is at least dubious. Cowper, 306, Hagan vs. Jackson. The requiring some words to convey a fee is not on the ground of favoring the heir ; but because of wills being a species of conveyance.-

2 P. Wins. 522-4, Barry and Edgeworth; *5*Term Hep. 561; 8 Term Bop. 67-8, Doe vs. Wright; 8 Term-Hep. 502-4,. Doe vs. Allen; Bos. and Puller, 335, Doe vs. Child; 2 Bos. and Puller, 249, Moore vs. Demu These cases go to shew tliat some words, of inheritance or perpetuity are necessary to carry afee; or a plain intent appears. It is highly dangerous to meddle with the doctrine which has been settled. It Would unsettle the property, and the rules of property.

Admits that the British cases go to the length of saying that wherever the intent appears, the fee will pass; though no words of inheritance or other technical words; *172tut there must be some words expressive of the intent . t0 §‘1Ve afe,C*

There are no words of inheritance, nor no other words 3n ^ie carrying a fee. The introductory clause is not so full as usual, and no evidence of the intent to dc-v]se a|j? ail(j not to die intestate of any. 1 Wilson’s Rep. 333, Grayson vs. *Atkinson;*Cowper, 660; 2 Vernon, 690, Beach croft vs. *Sam; 3*P. Wins. 297, Tanner vs. Wise ; 8 Term Rep. 501, Doe vs.-. The introductory clause in the will has no effect, unless there be some clause of connection. The word choice, given to the son, must relate to the thing, and not to the quantum of interest.

As to the intent evidenced by the son’s being put on a worse footing, unless the fee is given to him, it is not founded in fact, for the son has chosen a tract (as the will allowed him) which is worth double the amount of the other. Whatever construction of a will which goes to defeat the equality prescribed by the act of *1791, will*not be favored.

As to circumstances indicative of intent *to*give a fee, or not, insists that there are stronger to lead the mind to suppose there was no intent to give a fee. Equality runs through it.

As to the cases decided in this Court, they do not apply. Case of Fraser and Livingston, turned on the word « property.”

The case of Whaley turned on other reasons — on a survivorship. The Circuit Court decided against the enlargement of the estate into a fee simple ; the Court of Appeals reversed it.

No argument can be drawn from the statute of *1791;*for though that statute did level the distinction between real and personal estate, as to most purposes, such as division, payment of debts, &c. it does not go the whole length of abolishing all distinctions *;*so as to justify the idea, that the same words in a will which would carry the absolute property in personal estate will carry the *173fee in real estate. There is no charge on the son’s land, so as to raise an implication of a fee in the son.

To go further than has been done would open the door to great litigation *;*it will open the door to the discussion of every will. To alter the rule of property, airea-dy settled, would be legislating even against the of 1712, which made the common law of force. Judge Waties’s opinion upon this very caséis favorable to his side of the question : the Courts will differ.

Mr. DiiaytoN, for respondent.

The British cases all agree that the intention shall govern; yet they trammel it with a restriction, that if the devise relates to real estate there must be words of perpetuity, or words tantamount, to give a fee ¿ thus destroying the intention, though they acknowledge that in almost all the cases which arise, the donor giving a house or land generally, it is bis intention to give the absolute estate.

This English mode of construction, by defeating the intention, is to protect their favorite, the eldest son and heir at law. Our act of 1791 has destroyed the distinction between real and personal estate. This necessarily breaks down the rule which requires the use of words of perpetuity : cessante ratione cessat ct ipsa lex.

It is by no means certain that even by the English cases this Avill would not give the fee. 2 Term Rep. The word “ estate” carries a fee. Cowper, 852. Preamble, declaratory of the intent to bequeath all his property, is coupled with the direct devise, and will give a fee though there are no words of inheritance.

This testator gives to his son and two daughters his two tracts of land. Giving the son his choice implies an equality *;*and he gives to his daughters a fee, in their tract, for he orders a sale of it, and the money to be divided. A fee is implied, both to the daughters and the son. Implication of a fee is as strong in this case as in that of Waring vs. Middleton and others, recently decided by this Court.

The English law, founded on decided cases, have been altered by their judges on obtaining more lights. We *174111 *^ie*the same liberty with their cases as they did themselves. 2 Binny’s Rep. 13, 21, French vs. M’lI-henney, decided in Pennsylvania, is directly to the case the Court.- 2 Massachusetts Reports: devisee' A took a fee according to the intent of . testator, without" wor(]s 0f perpetuity.

But it is- said that there' ar'e circumstances in this will, to shew an intent not to give a fee to the son, No such circumstances appeal’. He does not appear to have known that words of perpetuity or inheritance were necessary to carry a fee. In the devise to the daughters there are no such words. It is only from his ordering a sale that his intention, to give them the absolute interest in the land and its amount of sale, is discovered. The’ decision in Whaley’s case, directly applicable to this* and being by the Court of Appeals, forms the law ; and' that case decides that the intention shall prevail, un-trammelled by the exception which requires the use of words of perpetuity.

Mr. Pabxcee, in reply,

Binny’s case is different;' the word *“*same” connecting the devising clause with the introductory clause, where *estate is*spoken of. *fe*As for such worldly estate as I am blessed with, I give, dispose and bequeath the same, in the following manner.” It rests upon the act of 1712, as establishing' British adjudications, as the law of the land ; and no modern cases (since the revolution) could have any authority to alter the effect of the former decided cases.

The British rule is a clear rule. A sound lawyer can always decide on a will if a fee be given. The Massachusetts case has a clause of survivorship, and there is no such survivorship in this case of Mikell.

Makes a calculation, to shew the inequality against the daughters. If the son takes a fee he gets eight times as much as a daughter. In cases of doubt wo should' follow'-the rule of equality *;*the great principle introduced by the act of 1791.

°f Appeals delivered its judgment in the above case.

*175.Chancellors James, Thompson, and Desaussuke, affirmed the decree of the Circuit Court: it appearing bo the Court that the intention of the deyisor was apparent, on the face .of the will, to give a fee simple estate in the land to the son.

Chancellor G ajxiabd was of opinion that the decree ■ought to be reversed.