#### William H. Eliot *versus*Timothy H. Carter.

A testator purchased a parcel of land, intending to annex the southerly part of it to his mansion-house estate 5 he however erected three dweilinghouses on the northerly part, fronting on the southerly part lying between them and the mansion-house estate, and this part was left an open court and was used by the occupants of the three houses as a passage-way and for a drain. The court was never used by the testator in connexion with the mansion-house except for light and air, and for a drain. He devises to three of his daughters severally and respectively these three *a*dweilinghouses and their respective privileges and appurtenances, by them at the date of this will respectively occupied and improved, each to have and to hold their houses and estates thereto belonging now in their occupation, to them and their heirs.’* He devises his mansion-house to one of his sons. The “ residue ” of his estate, real and personal, he gives to his seven children to be equally divided among them; but afterwards in the same will he says, to prevent the necessity of a partition, he has thought it best to devise the residue specifically, and accordingly he devises several parcels of his real estate to his children respectively, making no allusion however to the court above mentioned. Held, that the fee in the court did not pass to the three daughters under the devise of the three dweilinghouses, but to the seven children under the general residuary clause.

Writ of entry to recover one seventh part of a small parcel *442of land in Boston covered by a building recently erected by the tenant.

Upon a case stated it appears, that Samuel Eliot, by his will dated June 30, 1818, devised as follows: — “ Thirty-first. I give to my daughters, Frances Bray, Mary Harrison Dwight and Elizabeth Guild, severally and respectively, the brick dwellinghouses and their respective privileges and appurtenances, by them at the day of the signing of this will respectively occupied and improved, each to have and to hold their houses and estates thereto belonging now in their occupation, to them, their heirs and assigns for ever; provided however that this devise shall be considered as a part of their respective portions, and they shall be each respectively charged therefor On account of said portions the sum of eight thousand dollars.” — “ Thirty-third. It is my will that my wife Catharine Eliot, and my children who may reside with her, shall have the use of my present mansion-house, and also the free use of all my plate, furniture, &c., it being my design that the family establishment shall continue, as much as possible, unchanged. The said devise of the mansion-house to my wife for life, is on the condition that she shall continue to reside therein personally, &c. and in case she shall not, &c. then I give the same house and land thereto belonging to my son William Havard Eliot (the demandant), his heirs and assigns for ever, upon the same condition that he shall personally occupy the same during his life,” &c. — “Thirty-sixth. All the rest, residue and. remainder of my property, real or personal, which I have not before disposed of, I give to my children (naming them, there being seven) and their respective heirs and assigns, equally to be divided among them.” The will afterwards provides, that in case the testator’s wife shall occupy the mansion-house during her life, the reversion shall go to his son William Havard Eliot, his heirs and assigns, the same to be charged to him, in the apportionment of the testator’s estate, at the sum of $ 12,000, if the son shall survive his mother and shall elect to take this devise. The testator further says;—“Notwithstanding my devise of the residue, of my estate to my children, to prevent the necessity of partition between them I have thought it best to devise it specifically to them at such values *443and prices as appeared to me to be relatively equal,” &c. ; and he then proceeds to appropriate to his children severally, specific parcels of real estate at affixed values, but makes no mention of the court hereafter described.

The testator died in 1820.

The three houses first mentioned were built by the testator in 1805, on land which he purchased of John Jeffries. He purchased this land, intending to add the southerly half of it to his mansion-house estate, and expecting that William Phillips would take the other half, which adjoined Phillips’s land ; but Phillips refusing to take it, the testator built the three houses.

The land purchased of Jeffries comprises all that lies between the testator’s mansion-house estate, and the land of Phillips ; and the three houses were placed on the northerly part of it, fronting southerly, and’ leaving between them and the mansion-house a court, which opens easterly on Tremont Street. The house which formerly stood on the Jeffries land was about where the easternmost of the three now stands, and the space between that and the mansion-house has been unobstructed, and the windows of the mansion-house have been where they now are, more than forty years before the commencement of this action. Five of the windows look upon the court, and two rooms are entirely dependent on them for light. The summer after the three houses were finished, the testator opened a drain from them and from the back part of his mansion-house, running down about the middle of the court to Tremont Street; which has ever since been used for all the houses. The court was never used by the testator as a passage-way to his mansion-house estate, nor in any other way in connexion with it, except for light and air from the windows, and for the drain ; and there was no entrance or communication between them

The three houses with the appurtenances and estate belonging to them, as devised by the will, had in 1828 become the property of Benjamin Guild, and upon a treaty between Guild and the demandant for the purchase of the same, (the demand-ant being then the proprietor of the mansion-house estate, his mother having deceased,) Guild procured a release of all right *444in the court from all the residuary devisees except the demand-ant. Guild then conveyed to the demandant the three houses and estates, and also the right which he had acquired (if any) by the release. The demandant, in 1829, reconveyed to Guild the three houses and estates, and all right in the passage-way except his own share thereof (if any) as one of the residuary devisees. Guild afterwards conveyed the same to Carter, the tenant.

*Mwch 21st.*

Since the building of the three houses the land between them and the mansion-house has lain open, and has been used by the tenants of the houses, and by them only, to pass to and from their houses, and the two westernmost houses have no access to the street except over this land ; fuel and materials for repairing the houses have been placed upon it, as the occasion of the several tenants required, and usually by each tenant in front of the house occupied by him ; and since the death of the testator, a tenant of the westernmost house has put out trees on the southern border opposite to that house. But there was no evidence of other specific uses than those above mentioned or similar ones ; and no evidence that any tenant was ever forbidden or prevented from making any other use of the land. There is a fence separating the court from the street, through which there is an entrance by a large gate and a small one. In Boston it is very common for estates to have a drain entering into the drain of another estate, or passing through another estate.

This action is brought to recover one undivided seventh part of a portion of the court, at the westerly end, of which the tenant has taken exclusive possession by covering the same with his building. He derives his title to the same from Frances Bray, who took under the will the westernmost of , the three houses.

If the Court shall be of opinion that the demandant is entitled to one seventh part of the fee of the land described in his writ, judgment is to be rendered for him for the demanded premises ; otherwise he is to become nonsuit.

*F. Dexter*and *W. H.*Gardiner, for the demandant,

contended that the devisees of the three houses took only an easement in the court, and that the fee passed by the residuary *445clause ; and they suggested, that by the deed to Guild from the residuary devisees, he and his grantees were estopped to controvert this construction of the will. They cited *Leonard*v. White, 7 Mass. R. 6.

*B. Rand*and *T.*Parsons, for the tenant,

urged, that after the general residuary clause the testator goes on to devise specifically all his real estate not before disposed of, so that none remained to pass by the general words of that clause ; that he could have no motive, nor was it his intention, to give the court to all his children, for manifestly it could be of use only to the three who had houses there ; that to each house belongs the land in front of it, the westernmost house having a right of way over the land of the other two, and the middle one, over the land of the easternmost to the street; that the language of the will was sufficient to carry the fee in the court to the devisees of the houses; 2 Wms’s Saund. 401, note 2, and authorities there cited; Com. Dig. *Grant, E*6 ; *Bodenham*v. Pritchard, 1 Barn. & Cressw. 355, and 2 Dowl. & Ryl. 512 ; *Archer*v. Bennett, 1 Lev. 131 ; *Otis*v. *Smith,*9 Pick. 293 ; *Ongley*v. *Chambers,*1 Bingh. 496 ; *Loftes*v. *Barker,*Palm. 375 ; *Hingham*v. *Baker,*Cro. Eliz. 16; Com. Dig. *Estates by Devise, N*2 ; *Harwood and Bighorn's case,*Godb. 40 ; *Doe*v. *Tofield,*11 East, 247 ; *Bridgewater*v. *Bolton,*1 Salk. 236 ; *Tuffnell*v. *Page,*2 Atk. 38; 3 Atk. 486, note; *Holdfast*v. *Marten,*1 T. R. 411 ; Shep. Touch. 94; *Blaine's Lessee*v. *Chambers,*1 Serg. & R. 174; *Jackson*v. *White,*8 Johns. R. 58 ; *Grant*v. *Chase,*17 Mass. R. 447 ; *Whitney*v. *Olney,*3 Mason, 280; that in determining whether land passes under a will as parcel of other land devised, regard will be had to unity of occupation, unity of title, the fact of one parcel being necessary or convenient to the other, reputation of its being a part thereof, contiguity and enclosure ; and that in the present case all these circumstances conspired to prove that the land in the court passed with the three houses.

*April*6th.

Morton J.

delivered the opinion of the Court. This case depends entirely upon the construction of the thirty-first ciause of the will of the late Samuel Eliot. The demandant is one of the residuary devisees named in the will, and ;s enti*446tied to recover the proportion demanded, unless it be specifically devised. The tenant derives his title from Frances Bray, to whom he contends it has been so devised by the clause referred to.

The only question in the present case, is whether the demanded premises, are included in this devise. We lay out of the case the several conveyances. Whatever Guild conveyed to Eliot, was reconveyed. And the releases from the other heirs to Guild, can have no effect upon the demandant’s right to recover. Nor can the doctrine of estoppel be pressed into the service of either party. We must look to the true meaning of the will, to enable us rightly to determine this controversy. And the intention of the testator is the polar star, by which, in the construction of wills, our course must always be governed. This intention must be ascertained from the language of the will, aided by evidence of the actual situation of the external objects to which that language is intended to apply.

The thirty-first clause of the will clearly gives to each of the daughters named a house in severalty. What passed under the term *house*? Manifestly the land under the house. But to confine it to this would be too narrow a construction and obviously inconsistent with the intent of the testator. Each was to take the dwellinghouse, *with its privileges and appurtenances,*by her then occupied and improved. And each was to have and to hold the house and *estate thereto belonging,*then in her occupation. These words, by a fair construction, give to each not only the house and the land under it, but the yards about it, and whatever had been used with and was necessary to the convenient enjoyment, of it.

It is true that, strictly speaking, land will not pass as *appurtenant*to a house or to other land ; *Leonard*v. *White,*7 Mass. R. 6 ; but land may pass even under the term “ *appurtenance,"*where it appears that the testator intended to enlarge the meaning of the word beyond its technical sense. *Buck*v *Nurton,*1 Bos. & Pul. 57. And land which for a long time has been occupied with a messuage, may, in a will, be included in the words “ appertaining to it.” Palmer, 375 ; Cro. Eliz. 16.; 1 Bing. 496. As was said by a very learned *447judge of the highest court known m our country, “ The gcrod sense of the doctrine on this subject is, that under the grant of a thing, whatever is parcel of it, or of the essence of it, or necessary to its beneficial use and enjoyment, or in common intendment is included in it, passes to the grantee.” 3 Mason, 284.

There can be no doubt that the language of the testator, by a fair and just interpretation, is broad enough to include not only the land under and about the houses enclosed in yards, but also that which is in the open court in front of them. The words “ *and estates thereto*belonging,” used in the second sentence of the clause, tend to explain and enlarge the meaning of the words used in the first sentence. The house and *estate thereto belonging now in the occupation*of the devisee, may include land in front as well as in the rear of the house. And whatever was at the time *occupied*and *improved*with the house would pass under these words. The actual occupation at the time of making the will, must limit and define the language used. This would seem to furnish a safe and easy rule for the construction of the clause under consideration. But unfortunately, owing to the equivocal nature of the occupation, it fails to throw any clear and certain light upon the question.

All the land exclusively occupied with either of these houses would pass as parcel of the estate devised. No part of the court in front of these three houses was exclusively occupied by the tenant of either house, but the whole of it was used by each of them for certain purposes common to all. It was the means by which they passed to and from and occupied their several houses. It was also open for certain uses by the occupant of the testator’s mansion-house.

The question recurs, what estate in this court belonged to or was occupied by the tenant of each house ? The word *estate*may mean an absolute or qualified fee in the land itself, or only an easement upon it. Either would satisfy the term. We think each of these devisees took either an easement in the whole court, or a fee in that part of it which lay opposite the house occupied by her.

The tenant’s counsel have presented to our consideration *448several principles and rules to aid us in the construction of the clause in question.

Unity of title sometimes determines the meaning of doubtful language. It is true where an estate has long been held by the same title, it raises some presumption that the testator intended to pass it entire. But the rule is here inapplicable, for although the estate devised in this clause had long been held by the same title ; yet the purpose of this devise was to sever it, and the question is not whether it was to be severed, but in what manner it was to be severed.

Nor can we derive any aid from the use of similar language m other parts of the will. Where throughout any instrument words are used in a peculiar sense, one part may be explained by reference to another. And ordinarily words are to receive the same construction in every part of the instrument. In this case the language is used in its common acceptation and is broad enough to pass the whole estate, without imputing to it any unusual or extraordinary meaning. And whether it does pass the whole estate or not, must depend upon the actual situation of the estate itself, rather than any construction of the language used.

The court in front of these houses was *contiguous*to them and *necessary*to their *enjoyment.*These facts clearly show an intention to pass some interest in-the land. But for the convenient occupation of these houses an easement may be as useful as a seisin in fee. And therefore, whether the intention was to create the one or the other of these estates, cannot be inferred from these facts.

The strongest argument urged by the tenant’s counsel is derived from the manifest intention of the testator to devise his whole estate specifically. If an easement only passed by the clause under consideration, then the fee remained to pass under the residuary devise. We cannot doubt, from an examination of the whole will, that such was his intention. But the testator was conscious that something might be overlooked or he would not have inserted any residuary clause.

There are some considerations which have led us to the conclusion, that it was the intention of the testator to devise an easement and not a fee. He manifested in his will a great *449attachment to the mansion in which he had long lived, and a strong desire that it should be continued in the state and situation in which it then was. The preservation of the space between that and the three new brick houses, as an open court, was important if not indispensable to the convenient and accustomed enjoyment of the mansion-house.

Precisely the same language is used in reference to the three houses. The construction which gives the land in front of one to the devisee of that house, would necessarily give to the devisees of each of the other houses the land in front of them respectively. And no principle would justify us in construing the same words differently in their application to different parcels of real estate. Now if the occupant of the lower house takes the land in front of that, the occupants of the other two will have no communication between the street and their houses. We cannot by possibility believe that the testator intended to devise the upper houses without a right of way to the street. And if it had been his intention to give the fee of the land, he certainly would have excepted a right of way over it, for the use of the owners of the houses.

Having examined the whole will with reference to the actual state of the property disposed of and the peculiar situation of the estates in question, we are of opinion that it was the intention of the testator to preserve an open court there for the benefit and convenience of the adjoining houses, to give the respective owners thereof an easement in the court for various purposes, and that owing to the smallness of the value of the fee thus incumbered, or through inadvertence, he omitted specifically to dispose of it. It will therefore pass to the residuary devisees. The demandant, being one of them, is entitled to recover according to his declaration.