THIS was an ejectment brought in the circuit court of the United States, for the middle circuit in the Virginia district; in which John Doe, a subject of the king of Great Britain, residing without the state of Virginia, lessee of John Lambert, another subject of the king of Great Britain, complains of Richard Roe, a citizen of Virginia, residing within the said state, and claims possession of a messuage and tenement containing 156 acres of land in the county of Henry, being part of a tract of land called Marrowbone.
The jury found the following special verdict, viz. 'That George Harmer, being seized in fee of the lands in the declaration mentioned, on the 25th of June, 1782, made a paper-writing, purporting to be his last will and testament, all written with his proper hand, and signed by him; which will we find in these words: 'In the name of God, Amen. I George Harmer, of the commonwealth of Virginia, being perfectly well and of sound mind and memory, do make and ordain my last will and testament, in manner and form following, that is to say, all the estate, both real and personal, that I possess or am entitled to, in the commonwealth of Virginia, I hereby give and devise unto my friend, Thomas Mann Randolph, of Tuckabo, and Henry Tazewell, of the city of Williamsburgh, in trust, upon these conditions, that when John Harmer, my brother, now a subject of the king of Great Britain, shall be capable of acquiring property in this country, that they, or the survivor of them, do convey, or cause to be conveyed to him in fee simple, a good and indefeasible title in the said estate; and in case the said John Harmer should not be capable of acquiring such right before his death, then that my said trustees, or the survivor of them, do convey the said estate in manner aforesaid, to John Lambert, son of my sister, Hannah Lambert, when he shall be capable of acquiring property in this country; and in case John Lambert should not, before his death, be capable of acquiring a title to the said estate, then I direct the same to be conveyed to my sister, Hannah Lambert, if she, in her lifetime, can acquire property in this country.
'But if the said John Harmer, John Lambert and Hannah Lambert, should all die before they can acquire property legally in this country, then I desire that my trustees aforesaid may cause the said estate of every kind to be sold, and the money arising from each sale, together with intermediate profits of the said estate shall be by them remitted to the mayor and corporation of the city of Bristol in England, to be by them distributed, according to the laws of England, to the right heirs of my said sister, Hannah Lambert, to whom I hereby give all such money, excepting the sum of 100l. lawful money to each of the aforementioned trustees, which shall be paid out of the first money arising from the sales aforementioned, or from the profits arising to my heirs. In witness whereof, I have hereunto set my hand and affixed my seal this 25th of June, 1782.' We find, that on the 12th day of September, 1786, the said George Harmer, being seised as aforesaid, duly executed another writing testamentary, which we find in these words: 'In the name of God, Amen. I George Harmer, being sick and weak in body, but in perfect mind and memory, do give and bequeath unto Doctor George Gilmer, of Albemarle county, all the estate called Marrowbone, in the county of Henry, containing, by estimation, 2,585 acres of land; likewise, one other tract of land in said county, called Horse-pasture, containing, by estimation, 2,500 acres; also, one other tract, in the county aforesaid, containing, by estimation, 667 1-2 acres of land, called the Poison-field. It is my desire that all my negroes, horses, and other property, be sold, and after paying my debts, the balance, if any, be remitted to my nephew, John Lambert, out of which he shall pay his mother five hundred pounds.' &c.
Afterwards, on the 12th or 13th day of September, 1786, he departed this life without revoking the will or writing testamentary last mentioned; and without any other revocation of the will first mentioned, than the said writing testamentary of the 12th of September, 1786. We find, that John Harmer, mentioned in the paper-writing of June, 1782, departed this life about the year 1793. We find, that John Lambert, named in the paper-writings aforesaid, the lessor of the plaintiff, and, if capable of inheriting lands in Virginia, heir at law to the said George Harmer; that he was born in England on or before the year 1750; that he has never resided in any of the United States of America, and is, and ever has been, from the time of his birth, a subject of the king of Great-Britain. We find, that George Gilmer aforesaid, under whose heir and devisees the defendant holds, died in the month of November, 1793. We find, that in the December session, 1798, the general assembly of Virginia passed an act, which we find at large in these words: 'An act vesting in the children of George Gilmer deceased, certain lands therein mentioned (passed January 12, 1799.)
'Section 1. Be it enacted by the general assembly, that all the right, title and interest, which the commonwealth hath, or may have, in or to the following lands, lying in the county of Henry, which George Harmer, by his last will and testament, devised to a certain George Gilmer, and which, since the death of the said George Gilmer, it is supposed have become escheatable to the commonwealth, to wit, one tract called Marrowhone, containing, by estimation, 2,585 acres; one other tract called Horse-pasture, containing, by estimation, 2,500 acres; and one other tract called the Poison-field, containing, by estimation, 667 1-2 acres, shall be, and the same are hereby released to, and vested in, the children, whether heirs or devisees, of the said George Gilmer, deceased; to be by them held and enjoyed, according to their respective rights of inheritance, or devise under his will, as the case may be, in the same manner as if the said George Gilmer had died seised of the lands in fee simple, and an office had actually been found thereof; saving, however, to a certain John Lambert, who, as heir at law to the said George Harmer, claims the said lands, and to all and every other person or persons, bodies politic and corporate (other than the commonwealth) any right, title or interest, which he or they might or would have had in or to the said lands, or any part thereof, against the said children and devisees, if this act had never been made.
'Section 2. This act shall commence in force from the passing thereof.' We find, that George Harmer was, at the time of his death, seised in fee of the lands in the declaration mentioned, which are of the value of 3,000 dollars, and that George Gilmer, at the time of his death, was seised of the same under the devise to him from the said George Harmer. We find the lease, entry and ouster in the declaration mentioned. On the whole matter, if the court should be of opinion that the law is for the plaintiff, we find for the plaintiff the lands and tenements in the declaration mentioned, and 20 cents damages; and if the court shall be of opinion that the law is for the defendant, we find for the defendant.'
Upon this verdict the judgment of the court below was for the defendant.
The transcript of the record contains a bill of exceptions by the defendant to the refusal of the court to the admission of testimony to prove that George Harmer, at the time he made the will, in favour of Gilmer, declared to the person who wrote it, that it was his intention to give Gilmer the fee simple.
There was also an agreement of counsel, that if the court should be of opinion, that the first will ought not to have been admitted in evidence, because not proved before a court of probate, then so much of the verdict as relates to that will, should not be considered as forming any part of this case.
The writ of error was sued out by the plaintiff, and general errors assigned. The case was argued at February term, 1803, by Minor and Mason, for the plaintiff in error, and by Key, for the defendant.
Minor, for the plaintiff, insisted on the following points, viz.
1st. That the devise from Geroge Harmer to George Gilmer, dated 12th of September, 1786, of all the estate called Marrowbone, is only a devise for life.
2d. That John Lambert, heir at law of George Harmer, is not an alien as to the citizens of this country, and is capable of taking the reversion by descent.
3d. That the will of 12th September, 1786, is only a partial, and not a total revocation of the will of 25th June, 1782; and that this will passes and disposes of the reversionary interest of the testator's estate according to the legal import of that will.
4th. That by virtue of the Virginia statute transferring trusts into possession, the devise of 1782, transferred the legal estate to John Lambert.
5th. That John Lambert, if an alien, is capable of taking by devise, and is protected by the treaty of 1794, between the United States and Great Britain.
6th. Or that, if not, the property remains in him until office found for the commonwealth.
1st. That the devise to Gilmer is only for life.
In the first will of 1782, which is wholly written with the testator's own hand, he evinces not only a knowledge of the import, but of the necessity of technical words of limitation, or perpetuity; yet, in the will of 1786, he uses expressions which convey a life-estate only, and uses no words which can be construed into an intention, wholly to revoke the will of 1782. The first will disposes of the fee to his near relations; and hence results a strong presumption, that he meant to give only a life-estate by the will of 1786. The will of 1782, makes use of strong terms of limitation, or perpetuity, and clearly shows his intention of securing the fee simple to his brother and heir. John Harmer, who had, in fact, given him this very land. In the last will he does not notice his former will, nor mention his brother and heir, but devises 'all the estate called Marrowbone, in the county of Henry, containing, by estimation, 2,585 acres of land,' &c. to Doctor George Gilmer.
It is generally true that a devise of real property without words of limitation, conveys only an estate for life. This is the general rule, and must prevail, unless such circumstances appear as are sufficient to satisfy the conscience of the court, that the testator intended to convey a fee. Cowp. 235, Bowes v. Blackett. So in the case of Hogan v. Jackson, Cowp. 306. Lord Mansfield, said, 'if the words of the testator denote only a description of the specific estate, or lands devised; in that case, if no words of limitation are added, the devisee has only an estate for life. But if the words denote the quantum of interest or property, that the testator has in the lands devised, there the whole extent of his interest passes, by the gift, to the devisee. The question, therefore, is always a question of construction, upon the words and terms used by the testator. It is now clearly settled that the words, 'all his estate,' will pass every thing a man has; but, if the word 'all' is coupled with the word 'personal,' or a local description, there the gift will pass only personalty, or the specific estate particularly described.' And in the case of Loveacres v. Blight, Cowp. 355, Lord Mansfield said 'in general, wherever there are words and expressions, either general or particular, or clauses, in a will, which the court can lay hold of, to enlarge the estate of a devisee, they will do so to effectuate the intention. But if the intention of the testator is doubtful, the rule of law must take place: so, if the court cannot find words in the will sufficient to carry a fee, though, they themselves should be satisfied, beyond the possibility of a doubt, as to what the intention of the party was, they muct adhere to the rule of law. Now, though the introduction of a will, declaring that a man means to make a disposition of all his worldly estate, is a strong circumstance, connected with other words, to explain the testator's intention of enlarging a particular estate, or of passing a fee where he has used no words of limitation, it will not do alone. And all the cases cited in the argument, to show that the introductory words in this case would alone be sufficient, fall short of the mark; because they contained other words, clearly manifesting the intention of the testator to pass a fee.' The case of Right v. Sidebotham, Doug. 759, is also very strong. There the introductory clause testifies the intention of the testator to dispose of all his worldly goods and estates, and also a disinheriting legacy to the heir. The devise, then in question, is coupled by the word 'and' with another devise to the same devisee, her heirs and assigns, yet it was held not sufficient to carry the fee. Lord Mansfield says, 'the rule of law is established and certain, that express words of limitation, or words tantamount, are necessary to pass an estate of inheritance. All my estate, or, all my interest, will do; but, 'all my lands lying in such' a place, is not sufficient. Such words are considered as merely descriptive of the local situation, and only carry an estate for life.' The same principle is laid down in Gillbert on devises, 24. Thus, we find that the intention of the testator must be sought by fixed rules, and when found, it must not only be sufficiently proved to satisfy the conscience of the court, but must be coupled with apt and sufficient words to pass a fee. See the case of Frogmorton v. Wright, 3 Wil. 418, which is a strong case for the plaintiff. So is also the case of Chester v. Painter, 2 P. Will. 335. In the case of Fletcher v. Smiton, 2 T. R. 656, the words were 'all my estates,' and the decision was upon the ground of an intention clearly appearing to dispose of his whole interest. There is nothing in the present case to show an intention of conveying a fee, unless it be the words 'all the estate called Marrowbone, in the county of Henry, containing 2,585 acres of land.' The testator does not, in the beginning of his will, as in most of the cases cited, declare an intention of disposing of all his estate and interest. There is a difference between the terms 'all the estate' and 'all my estate.' The latter is certainly a more evident allusion to the degree of interest, than the former. The expressions 'all the estate called Marrowbone' are clearly words of locality, and not of interest. What idea would a lawyer have of an estate called Marrowbone, containing 2,585 acres? Could he ascertain whether it was an estate for years, for life, or in fee? Besides, the expression is coupled with two others which are most clearly descriptive of the thing, and not of the degree of interest. 'Likewise one other tract of land, called Horse-pasture; also one other tract, called Poison-field.' Here, by the word 'likewise,' is implied that the testator meant to devise the same degree of interest in each of the tracts; and by the word 'other,' it is evident that he intended the former description as a description of a tract of land as to locality only, and not of his degree of interest in it. Having, in the first part of the sentence, used an equivocal word, and having, in the subsequent clause of the sentence, used synonimously a word which is certain in its meaning, and clearly descriptive of the thing, and not of the interest, it is fair to conclude that the equivocal meaning of the former, is explained and rendered certain by the latter; and that he meant no more by the word estate, than by the expression tract of land. It is a rule, that where words are used synonimously, the word most frequently used shall govern the sense. Here the term tract of land, is twice used as synonimous to estate; the former, therefore, ought to controul the sense of the latter. It is true, that 'all my estate' has sometimes carried the fee; but to induce a departure from the general rule, the intention must be clear to pass a fee. The word, 'all,' is coupled with a local description; it relates to the number of acres, and not to the degree of the testator's interest in the land. The word estate, as used in Virginia, is generally understood to mean a description of the property or thing, and not of the interest; and this court will respect the provincial meaning, to come at the true intention of the testator. It is not probable, and, therefore, is not to be presumed, that he would give his estate to a stranger, and disinherit his heir, who had given him this very estate; and it is to be observed, too, that he does not, in his last will, even mention his brother John, to whom, by the first will, be had given all his estate.
2. The second point is, that John Lambert, heir at law of George Harmer, is not an alien as to the citizens of this country, and is capable of taking the reversion by descent.
If he is incapable of holding lands in this country, it must be because he is an alien born. Is he such under the legal acceptation of the word alien? A definition of an alien is thus given in Calvin's case, 16(a) 7 Co. 'An alien is a subject that is born out of the ligeance of the king, and under the ligeance of another.' Wood's Inst. 23. 1 Inst. 198(b.) 1 Woodeson, 386. John Lambert, the lessor of the plaintiff, was born in England in the year 1750, under the allegiance of the king of Great Britain. At his birth he had inheritable qualities, of which he can be deprived by one mode only, and that is the commission of a crime sufficient to work corruption of blood. 1 Bl. Com. 371. This is not pretended.–Lambert was born within the ligeance of the king, the then common sovereign of this country and England; and, therefore, is not an alien born.
Those born under common allegiance may acquire and hold lands; and, in time of war, they may join the one, but must render service to the other, for the land.–Bracton, b. 5, c. 24, fol. 427. (b.) 1 Hale, P. C. 68. Calvin's case, 27. (b.) 7 Co. The words of Bracton are, 'Est etiam et alia exceptio quae tenenti competit ex persona petentis propter defectionem nations, quae dilatoria est, et non perimit actionem, ut si quis alienigena qui [non] fuerit ad fidem regis Angliae, tali non respondeatur, saltem donec terrae fuerint communes, nec etiam sive rex ei concesserit placitare, quia sicut Anglicus non auditur in placitando aliquem de terris et tenementis in Francia, ita nec debet Francigena, et alienigena, qui fuerit ad fidem regis Franciae, audiri placitando in Anglia.–Sed tamen sunt aliqui Francigenae in Francia, qui sunt ad fidem utriusque, et semper fuerunt ante Normanniam deperditam, et post, et qui placitant hic et ibi, ea ratione qua sunt and fidem utriusque, sicut fuit W. comes Marreschallus et manens in Anglia, et M. de Feynes manens in Francia, et alii plures; et ita tamen si contingat guerram moveri inter reges, remaneat personaliter quilibet eorum cum eo cui fecerit ligeantiam, et faciat servitium debitum, ei cum quo non steterit in person a.' See also Calvin's case, fol. 25. (a. and b.) 7 Co. A man born in the English plantations is a subject. Wood's Inst. 23. He that is born in the mother country must, a fortiori, be a subject, and capable of all the rights of a subject in the colonies. One of these rights is that of acquiring property. 'All persons may convey, as well as purchase, except men attainted of treason,' &c. 'aliens born,' &c. Wood's Inst. 233. 1 Inst. 42. (b.) But it has been proved that the lessor of the plaintiff is not an alien born; he, therefore, may purchase or take. If he once had an inheritable quality, or a capacity to take, and has not forfeited it by any crime, it follows that he has it yet. The separation of the colonies from England, could not, in law or reason, deprive him of this right. Calvin's case, fol. 27. (a. and b.) Calvin's case was shortly this: Calvin was born in Scotland, after the crowns of England and Scotland were united on the head of James the First. The question was, whether he could maintain an assize of novel disseisin of lands in England. The plea was, 'that he was an alien, born at Edinburgh, within the kingdom of Scotland, and within the ligeance of the king of Scotland, and out of the ligeance of the king of England.' One of the objections on the part of the defendants was, that, if postnati were, by law, legitimated in England, great inconvenience and confusion would follow, if the king's issue should fail, whereby those kingdoms might again be divided. But to this it was answered by the judges, that 'it is less than a dream of a shadow, or a shadow of a dream; for it hath been often said, natural legitimation respecteth actual obedience to the sovereign at the time of the birth: For as the antenati remain aliens as to the crown of England, because they were born when there were several kings of the several kingdoms, and the uniting of the kingdoms by descent subsequent, cannot make him a subject to that crown to which he was an alien at the time of his birth, so albeit the kingdoms (which Almighty God of his infinite goodness and mercy divert) should by descent be divided, and governed by several kings; yet it was resolved, that all those that were born under one natural obedience, while the realms were united under one sovereign, should remain natural born subjects, and no aliens; for that naturalization, due and vested by birth-right, cannot, by any separation of the crowns afterward, be taken away; nor he that was, by judgment of law, a natural subject at the time of his birth, become an alien by such a matter ex post facto. And in that case, upon such an accident, our postnatus may be ad fidem utriusque regis, as Bracton saith, in the aforementioned place, fol. 427.' The present case is stronger than Calvin's. There the question was whether he had gained a right; but here it is whether he has lost one. The same rule prevailed when the Saxon heptarchy became united under the king of the West Saxons. Calvin's case, 23. (b.) And also with regard to the possessions held by the kings of England in France at various times, such as the dukedom of Acquitain, and the earldoms of Poitiers, Normandy and Anjou. So with regard to the islands of Jersey, Guernsey, Man, Ireland, &c. Calvin's case, 19, &c. 1 Hale, P. C. 68, 69. Suppose a division of these states, it would follow, from the doctrine contended for by the opposite counsel, that people born in the same country, and under one common allegiance, would be aliens to each other.
The kings of England themselves did homage to the kings of France for provinces which they held, such as Normandy, Guienne, Brittany, &c. This was also the case with many of their subjects; as in the case of the Duke of Richmond, Duke D'Aubigny, &c. Hale, P. C. 68. Calvin's case, 27. (b.) In this country the personal services are dispensed with, but the land pays the common tax or duty.
Alienage is incident to birth only, 4 T. R. 308, Doe, ex dem. Duroure v. Jones.
It is not just or reasonable that a man should be punished without committing a crime, or for an act committed by a superior power which he could not controul. Suppose a secession of one of these states; would it be just that the citizens of the other states, holding property in that state, should forfeit it, or lose their rights?
The reasons of policy for prohibiting aliens from holding lands, are stated, in Calvin's case, 18. (b.) to be three. 1. The secrets of the realm might thereby be discovered. 2. The revenues of the realm should be taken and enjoyed by strangers born. 3. It should tend to the destruction of the realm. But none of these apply to the present case. Lambert lives out of the realm, and, therefore, cannorbetray its secrets. The land will continue to pay the taxes, which, being the sinews of war, will preserve the realm. Besides, the case applying only to the antenati, is limited in extent, and its operation will be constantly diminishing, by failure of heirs, by alienations, by naturalization, &c. The English, who understand the principles of the common law at least as well as we do, have allowed our citizens to inherit in similar cases. The cases of the Chichester estate, and an estate recovered by Mr. Boyd, and the Earl of Cassel's estate, are examples. A liberal policy should dictate a reciprocation of the same principle.
The third point, viz. that the will of 12th Sept. 1786, is only a partial, and not a total, revocation of the will of 25th June, 1782; and that this will passes and disposes of the reversionary interest of the testator's estate, according to the legal import of that will, was admitted by the opposite counsel, in case the second will devised a life-estate only.
The fourth point, that by virtue of the Virginia statute transferring trusts into possession, The devise of 1782 transferred the legal estate to John Lambert, was also admitted, if he is not to be considered as an alien.
The fifth point is, that John Lambert, if an alien, is yet capable of taking by devise, and is protected by the treaty of 1794, between the United States and Great Britain.
By the 9th article of the treaty 'it is agreed that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominious of his majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein; and may grant, sell, or devise the same to whom they please, in like manner as if they were natives; and that neither they nor their heirs or assigns shall, so far as may respect the said lands, and the legal remedies incident thereto, be regarded as aliens.'
The only doubt which can be raised upon this article arises from the word hold. But treaties ought to be liberally expounded, so as to meet the full intention of the contracting parties. There can be no doubt but the intention was to secure, not only actual possession, but rights which would have vested but for the alienage of the parties. This is apparent from the provision made for legal remedies, which would be wholly useless if the former expressions were meant to comprehend only lands in actual possession. If, therefore, Lambert is to be considered as an alien, yet the treaty destroys that bar to his recovery.
The sixth point is, that although Lambert should be considered as an alien, and is not protected by the treaty, yet he is capable of taking by devise, and of holding the land until office found for the commonwealth.
He certainly has a good right against all the world, except the sovereign. In England, land purchased by an alien does not vest in the king until office found. Co. Lit. 2. (b.) Hargrave's note (3.) 5 Co. 52 (b.) Page's case, 1 Jones 78, 79. More, 325, Englefield's case. 2 Bl. Com. 293. If he had been tenant in tail, he might have barred the remainder. Goulsb. 102. 4 Leon. 84. An alien may take by devise, Powell on Devises, 316, 317, 318. 2 Vez. 362. Knight v. Duplessis, and may hold until office found. 'For,' says Powell, 'when an alien takes by will, the estate, on the will's being consummate, vests in him, and he is in to all intents and purposes, as any other devisee would have been, until something further be done, to take the estate devised out of him again; for as long as the alien lives, the inheritance is not vested in the king, nor shall he have the land, until office found; but if he die before office, the law casts the freehold and inheritance upon the king for want of heirs, an alien having none. So that the title of the crown is collateral to the title by the devise, has no retrospect to the time of its being consummate, nor does it affect the land in the hands of the devisee, until another thing is done to entitle the king, not under the devise, but by right of his prerogative; viz. office found; the tenant being an alien, and consequently, though of capacity to take lands in his own right, yet not of capacity to hold them.'
1st. That George Harmer, by the will of 1786, devised a fee to Gilmer.
2d. That if he did not, yet the lessor of the plaintiff cannot recover.
1st. The word estate, in the devising clause of a will, where it refers to land, denotes and carries the testator's interest in the land. And there is no difference in construction of law, whether the words are 'all my estate,' or 'all the estate.' Both carry the whole interest of the testator. In the present case there are no words of locality that operate as description, and prevent the fee from passing. It is admitted that the word estate, where it is coupled with personalty, shall be restrained and will not carry the fee of lands; upon the principle noscitur ex sociis. This case is not which this distinction, because the word estate refers wholly to the land, and the whole personal estate is disposed of by a subsequent, independent clause. Consequently no cases can apply, but where the expressions are similar to those of the present will, and refer to lands. In the case of Wilson v. Robinson, 2 Lev. 91. 1 Mod. 100. 25 Car. 2. an. 1672, the words were 'all my tenant-right estate at Brigisend in Underbarrow,' and it was held that they passed the fee. This is the general rule of law, and is uniformly supported by the authorities from the year 1672 to the present time; except the case cited by the plaintiff's counsel, from 2d P. Williams. The case in 2 Lev. 91, is exactly like the present; the word lands is used in the same sentence, and in the same manner as in the present case.
The word estate, in wills, always means the interest, unless controuled by words of restriction. Words of locality will not restrain the force of the word estate. In the case of the Countess of Bridgewater v. Duke of Bolton, 1 Salk. 236. 6 Mod. 106. S. C. the words were 'all other my estate real and personal not otherwise disposed of by this my will, for to be given by him to his children as he shall think convenient, I solely trusting to his honour and discretion that he will give them such provision as will be necessary.' 'Et per Holt, Ch. J. who delivered the resolution of the court, the rents pass by these words 'all my real and personal estate,' for the word estate is genus generalissimum, and includes all things real and personal, and the fee of the rents passes, at least the whole estate of the devisor; for all his estate is a description of his fee. In pleading a fee simple, you say no more than seisitus in dominico suo ut de feodo; and in formedon, or other action, if a fee simple be alleged, you say cujus statum the demandant now has.' And he held 'that devising all his estate, and all his estate in such a house, was the same, and that all his estate in the thing passed in either case.'
The next case is that of Barry v. Edgeworth, 2 P. Williams 523, anno 1729, which overrules the case of Chester v. Painter, cited by the plaintiff's counsel from 2 P. Williams 335, anno 1725. In this case of Chester v. Painter, the court probably took the whole will together, and from the testator's having used the word heirs in some of the devises, and omitted it in the devise in question, concluded that it was not his intention to pass the fee. In the case of Barry v. Edgeworth, the words were 'all her land and estate in upper Catesby, with all their appurtenances,' and the master of the rolls held it to be decided by the case of the Countess of Bridgewater v. the Duke of Bolton, Salk. 236; and said, 'the word estate naturally signifies the interest rather than the subject, and its primary signification refers thereto; and although the devise be of all her land and estate in upper Catesby, this is not restrictive with respect to the estate intended to pass by the will, but only as to the land.' 'And as the word estate has been agreed and settled to convey a fee in a will, it would be dangerous to refine upon it; for then none could give any opinion thereupon.' This case refers to that of Murry v. Wyse, 2 Vern. 564, anno 1706, where the words 'all the rest and residue of his real and personal estate whatsoever,' were held to pass a fee. Precedents in Chgn. 264. S. C. In the case of Ibbetson v. Beckwith, Cases Temp. Talbot, 157, the words were, 'as touching my worldly estate, wherewith it hath pleased God to bless me, I give, devise, and dispose of the same in the manner following.' Then follow two devises of 'estates,' burthened with the payment of debts and legacies, which were admitted to carry a fee; after which came the devise in question: 'Item, I give unto my loving mother all my estate at Northwith close, North closes, and my farm held at Roomer, with all my goods and chattels as they now stand, for her natural life, and to my nephew Thomas Dodson, after hes death, if he will but change his name to Beckwith; if he does not, I give him only 20, to be paid him for his life out of Northwith close, North close, and the farm held at Roomer; which I give her upon my nephew's refusing to change his name, to her and her heirs forever.' The question was, whether Thomas Dodson took an estate for life, or in fee. The Lord Chancellor decreed that he took the fee; and said, that the word estate carries the fee, and that no case had been cited 'to warrant the altering the known legal signification of it.' See also Gilb. Devises, 25. So in the case of Bailis v. Gale, 2 Vez. 48, anno 1750, the testator devised to his wife all that estate he bought of Mead for so long as she shall live; and in another clause said, 'I give to my son, Charles Gale, all that estate Ibought of Mead, after the death of my wife.' The Lord Chancellor said, that the word 'estate is admitted to be sufficient to make a description not only of the land, but the interest in the land,' and he held that the fee passed to Charles.
The case of Hogan v. Jackson, Cowp. 306, shows that the word estate is sufficient to pass all the interest of the testator in the thing devised. So in the case of Loveacres v. Blight, cited from Cowp. 355, Lord Mansfield says, 'the word estate comprehends not only the land or property a man has, but also the interest he has in it.' And in Denn v. Gaskin, Cowp. 659, he puts the words, 'all my estate,' as an example of an expression tantamount to words of limitation. See also the case of Hodges v. Middleton, Doug. 434, where the argument of counsel is strong to the same effect. All the subsequent cases refer to that of Barry and Edgeworth, 2 P. Will. 523, and none of them refer to that of Chester and Painter, in 2 P. Will. 335. The case of Right v. Sidebotham, cited from Doug. 763, does not apply to the present case, as the words of that devise were, 'all my lands, tenements and houses,' and not all the estate, as in our case. The authority from Gilb. on Devises, p. 24, is answered by p. 25; and the reason why a fee did not pass in the case in p. 24, is, because the word estate was coupled with personalty. The case of Frogmorton v. Wright, cited from 3 Wilson, 418, had no words descriptive of the testator's interest, and the case of Fletcher v. Smiton, cited from 2 T. R. 660, is a strong case to show that the word estates will carry the fee, unless restrained by other words, clearly showing a contrary intention. A description of the place cannot, in reason, restrict the operation of the word estate, because, unless the place be named, you cannot tell either what land, or what estate the testator meant to pass.
But, it is said, there is a difference between the expressions, 'all my estate,' and 'all the estate,' and that the former more clearly indicates the interest than the latter. Nothing but the refinement of ingenious men could find a diversity in these expressions. When a testator is disposing of his worldly affairs, it is his own property that he means to dispose of, and not that of another person. When, therefore, he uses the expression, the estate, it means the same as his estate. But this subtlety of construction was soon exploded in express terms. It was suggested by the counsel, in the case of Bailis v. Gale, 2 Vez. 48, but Lord Hardwicke held, that it makes no difference which mode of expression is used.
So there was once an attempt made to distinguish between the words 'at' and 'in,' such a place; but this was overruled by Lord Talbot, in the case of Ibbetson v. Beckwith, Ca. Temp. Talbot, 157. The word 'at' was used in the case in 2 Lev. 91, and in the case before Lord Talbot. But the word 'in' was used in the case of Barry v. Edgeworth, 2 P. Will. 523; yet the decisions in those cases were all the same way.
From this chronological view of cases, it seems clear that the word estate, in a will, carries the whole interest of the testator, unless there are other words clearly indicating an intention to give a less estate. No such words appear in the present will; hence it follows, ...