After advisement, the following opinion was delivered :
By Chief Justice Nelson.
The point in this case turns mainly upon the devises to John the son, and John .the grandson, and involves the question what quantity of interest the grandson took in the moiety of the farm devised to him—whether an estate for life, or an estate in fee ? If the latter, as he died without issue, and the estate coming from his paternal ancestor, it would go to his father, the appellant, under the third canon of descents; but if he took only a life estate, it must descend to the heirs of the testator.
The general rule is undisputed, that a devise to A. without words of limitation, such as, and to his heirs, carries with it only an estate for the life of the devisee. It was settled in analogy to the principles that govern the limitation of estates by deed at common law, which was the elder mode of transferring titles; but with this difference, that while in respect to deeds, [581]*581the rule was uniform, and the fee never permitted to pass without words of inheritance ; in regard to wills, they being often the production of an unskilful draftsman, upon the emergency of the occasion, it was held that an intent might be inferred from other provisions and expressions, supplying the want of such words.
The parts of the will that may properly be relied on to raise this intent here, are the introductory clause, and the provision for the payment of the legacies. Comparing the language of this will with the cases that we were referred to by the counsel for the respondents on the argument, in which the influence of these introductory words upon the interpretation of wills was discussed, and some general principles laid down in respect to them, I am inclined to think no controlling effect can consistently be given to them. They are often words of course, and as was truly said, are not inappropriate, even where the testator intends giving but a part of his interest. They should in some way be connected in the body of the instrument or otherwise, with the more important devising clause, in order to have the effect of enlarging the estate. I am unable to perceive such connection here, within the principle or spirit of the cases.
But the words charging the payment of legacies deserve more consideration. In respect to them, it has been long settled that a condition or direction imposed on a devisee to pay a sum of money, enlarges the devise to him, without words of limitation, into an absolute estate in fee. Cro. Eliz. 204. Cro. Jac. 599. Willes, 138. Cowp. 356. 3 T. R. 356. 5 id. 13. 5 East, 87. 2 Powell, ch. 19, Jarman’s ed. The ground of this rule is, that unless the devisee were to take a fee, he might in the event be a loser by the devise, since he might die before he had re-imbursed himself the amount of the charge upon him ; and the rule applies to every case where a loss is possible. Collier’s case, 6 Rep. 16, a. Cro. Eliz. 379. 2 Mod. 26. Willes, 140. Where the sum is charged exclusively upon the land, the rule is not generally applicable, as then the devisee cannot sustain loss ; the land only can be resorted to to raise the charge. In some cases. [582]*582the devisee is not only made personally liable, but the estate devised is also charged for better security ; and the failure to mark this distinction has sometimes led to confusion, and apparent contradiction in the decisions. The same remark may be made also of the failure to discriminate between a charge on the land generally, and on the particular estate devised. In the former case it attaches to the land, and follows it into whosesoever hands it may pass ; in the latter, the lien terminates with the estate devised, which may be short of a fee. Now, in this case, the charge is both upon the estate devised, and upon John the son, for the legacies are to be raised out of it by him. “ My son John must give out of said estate f and again, “ the whole of the payments to he made by my son John” &c. Here the fund is designated, as well as a personal liability imposed. The words are much stronger than those in Doe ex dem. Stevens, v. Snelling, 5 East 92, which were as follows : “ after having thereout paid and discharged all my just debts and funeral expenses •” also, “ subject to the payment thereout of all the aforesaid legacies;” and which were held clearly sufficient to pass the fee, in the absence of words of inheritance. Other cases might be cited, but the above contains a full exposition of the doctrine, and is a sufficient authority for the conclusion, that John the son took the fee of the upper half by reason of being personally liable to pay the legacies.
This brings us directly to the question first stated, namely, whether the grandson also took the fee of the lower half of the farm. It must be admitted that he was not personally liable, as the payment of the whole amount is imposed on the father ; but it is imposed upon him in respect to both estates devised, the lower as well as the upper half of the farm. The property is designated by the testator as my farm, the one half of which he first gives to the son, and then the other to the grandson, and adds, “ but my son John must give out of said estate, that is, out of the farm just devised, to my daughter,” &c. This appears to be the plain import of the clause as derived from a careful attention to the words and their collocation. The other construction [583]*583would be a very narrow and straitened one, that is, to limit the term said estate, in the connection found, to the part of the farm previously devised to the son ; it might with more propriety be confined to the other part, as that is the last antecedent. The lower half then, I have no doubt, is subject to a moiety of the legacies, and constitutes a fund to which the legatees might have resorted for payment; and out of which the father might probably have reimbursed himself, had his son not died and he had advanced the whole himself.
But the charge upon the land exclusively, as we have seen, will not generally work an enlargement of the devise into a fee. The case is peculiar, and I think without a parallel in the books. The grandson must have been quite young at the date of the will, which was in 1808; he died in 1817, under age. The two moieties of the farm are devised in the same words, and legacies to the amount of $1,200 are charged upon the whole, and also upon the person of the father in respect to the whole. I may be wrong, but I have not been able to resist the conclusion^ that this peculiar arrangement, and difference in personal liability is attributable to the relation of father and son, and the tender years of the latter ; that in truth the charge was wholly thrown upon the father, not because it was intended the whole should come out of him, but because he was most fit and competent to see it paid and have the property disencumbered, and that for this purpose the father was put in the place of the son, and made personally liable both in respect to his own and his son’s share ; and that no distinction existed in the mind of the testator as to the interest intended to be passed in the several parts of the farm.
There is another view of the case which goes far, in my judg.
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After advisement, the following opinion was delivered :
By Chief Justice Nelson.
The point in this case turns mainly upon the devises to John the son, and John .the grandson, and involves the question what quantity of interest the grandson took in the moiety of the farm devised to him—whether an estate for life, or an estate in fee ? If the latter, as he died without issue, and the estate coming from his paternal ancestor, it would go to his father, the appellant, under the third canon of descents; but if he took only a life estate, it must descend to the heirs of the testator.
The general rule is undisputed, that a devise to A. without words of limitation, such as, and to his heirs, carries with it only an estate for the life of the devisee. It was settled in analogy to the principles that govern the limitation of estates by deed at common law, which was the elder mode of transferring titles; but with this difference, that while in respect to deeds, [581]*581the rule was uniform, and the fee never permitted to pass without words of inheritance ; in regard to wills, they being often the production of an unskilful draftsman, upon the emergency of the occasion, it was held that an intent might be inferred from other provisions and expressions, supplying the want of such words.
The parts of the will that may properly be relied on to raise this intent here, are the introductory clause, and the provision for the payment of the legacies. Comparing the language of this will with the cases that we were referred to by the counsel for the respondents on the argument, in which the influence of these introductory words upon the interpretation of wills was discussed, and some general principles laid down in respect to them, I am inclined to think no controlling effect can consistently be given to them. They are often words of course, and as was truly said, are not inappropriate, even where the testator intends giving but a part of his interest. They should in some way be connected in the body of the instrument or otherwise, with the more important devising clause, in order to have the effect of enlarging the estate. I am unable to perceive such connection here, within the principle or spirit of the cases.
But the words charging the payment of legacies deserve more consideration. In respect to them, it has been long settled that a condition or direction imposed on a devisee to pay a sum of money, enlarges the devise to him, without words of limitation, into an absolute estate in fee. Cro. Eliz. 204. Cro. Jac. 599. Willes, 138. Cowp. 356. 3 T. R. 356. 5 id. 13. 5 East, 87. 2 Powell, ch. 19, Jarman’s ed. The ground of this rule is, that unless the devisee were to take a fee, he might in the event be a loser by the devise, since he might die before he had re-imbursed himself the amount of the charge upon him ; and the rule applies to every case where a loss is possible. Collier’s case, 6 Rep. 16, a. Cro. Eliz. 379. 2 Mod. 26. Willes, 140. Where the sum is charged exclusively upon the land, the rule is not generally applicable, as then the devisee cannot sustain loss ; the land only can be resorted to to raise the charge. In some cases. [582]*582the devisee is not only made personally liable, but the estate devised is also charged for better security ; and the failure to mark this distinction has sometimes led to confusion, and apparent contradiction in the decisions. The same remark may be made also of the failure to discriminate between a charge on the land generally, and on the particular estate devised. In the former case it attaches to the land, and follows it into whosesoever hands it may pass ; in the latter, the lien terminates with the estate devised, which may be short of a fee. Now, in this case, the charge is both upon the estate devised, and upon John the son, for the legacies are to be raised out of it by him. “ My son John must give out of said estate f and again, “ the whole of the payments to he made by my son John” &c. Here the fund is designated, as well as a personal liability imposed. The words are much stronger than those in Doe ex dem. Stevens, v. Snelling, 5 East 92, which were as follows : “ after having thereout paid and discharged all my just debts and funeral expenses •” also, “ subject to the payment thereout of all the aforesaid legacies;” and which were held clearly sufficient to pass the fee, in the absence of words of inheritance. Other cases might be cited, but the above contains a full exposition of the doctrine, and is a sufficient authority for the conclusion, that John the son took the fee of the upper half by reason of being personally liable to pay the legacies.
This brings us directly to the question first stated, namely, whether the grandson also took the fee of the lower half of the farm. It must be admitted that he was not personally liable, as the payment of the whole amount is imposed on the father ; but it is imposed upon him in respect to both estates devised, the lower as well as the upper half of the farm. The property is designated by the testator as my farm, the one half of which he first gives to the son, and then the other to the grandson, and adds, “ but my son John must give out of said estate, that is, out of the farm just devised, to my daughter,” &c. This appears to be the plain import of the clause as derived from a careful attention to the words and their collocation. The other construction [583]*583would be a very narrow and straitened one, that is, to limit the term said estate, in the connection found, to the part of the farm previously devised to the son ; it might with more propriety be confined to the other part, as that is the last antecedent. The lower half then, I have no doubt, is subject to a moiety of the legacies, and constitutes a fund to which the legatees might have resorted for payment; and out of which the father might probably have reimbursed himself, had his son not died and he had advanced the whole himself.
But the charge upon the land exclusively, as we have seen, will not generally work an enlargement of the devise into a fee. The case is peculiar, and I think without a parallel in the books. The grandson must have been quite young at the date of the will, which was in 1808; he died in 1817, under age. The two moieties of the farm are devised in the same words, and legacies to the amount of $1,200 are charged upon the whole, and also upon the person of the father in respect to the whole. I may be wrong, but I have not been able to resist the conclusion^ that this peculiar arrangement, and difference in personal liability is attributable to the relation of father and son, and the tender years of the latter ; that in truth the charge was wholly thrown upon the father, not because it was intended the whole should come out of him, but because he was most fit and competent to see it paid and have the property disencumbered, and that for this purpose the father was put in the place of the son, and made personally liable both in respect to his own and his son’s share ; and that no distinction existed in the mind of the testator as to the interest intended to be passed in the several parts of the farm.
There is another view of the case which goes far, in my judg. ment, to confirm this conclusion upon a principle laid down by the court in Loveacre v. Blight, Cowp. 356, where Lord Mansfield says, if a man devise lands to another, paying thereout £100, or any other gross sum, though he adds no words of limitation, yet the devisee shall have a fee. In short, he observes, wherever any thing is directed to be done which, strictly speak[584]*584ing, an estate for life only may not be sufficient to answer, the court will imply a fee. The same rule is also stated in Doe, ex dem. Stevens v. Snelling, before referred to, particularly by Lawrence, J. p. 96. After laying down the general rule, that if the person is charged he must take the fee, he observes, it is the same thing if such an indefinite estate be given to one, and the debts are to be paid out of the estate given to the devisee, he must also then take the fee : for otherwise the estate may not be sufficient to pay the debts. 2 Powell, 888, 389, 394, Jarm. ed. Now apply this principle to the words of the present will : The several legacies are to be paid out of the estate devised ; suppose the grandson takes but a life estate, what security is there that the fund would be sufficient to enable the father to discharge the duty imposed upon him, the payment of $1,200 1 The charge might fall wholly upon the upper half by the termination of the life of the grandson. I admit the force of this view, as well as my opinion upon the case, depends upon the construction that the legacies are charged upon both estates devised in the farm ; but I am so well satisfied of this, that I am willing to rest the whole case upon it.
My conclusion therefore is, 1. That the legacies are a personal charge upon the testator’s son John, and hence he must take the fee in his share ; 2. That he is made personally liable in respect to the estate devised in the entire farm, the lower as well as the upper half,, on account of the minority of his son . and that no distinction can consistently be made in respect to the quantum of interest in the two devises • and 3d. That each devisee must take afee, in order to enable the father to discharge the duty imposed upon him by other portions of the will, namely, the payment of the legacies, as they are charged upon both interests devised.
I am therefore of opinion that the decree of the chancellor ought to be reversed.
All the members of the court, with but one exception, concurring in this opinion, the decree of the chancellor was accord" ingly REVERSED.