Lessee of Doughty v. Browne

4 Yeates 178

Opinion

The court desired the counsel for the Brownes to begin.

Accordingly Messrs. Wells and Dickerson contended, that there were no express words in the will to vest the devisee with an estate in fee simple, nor did she take it by necessary implication. The clause under which Louisa took, was strangely inconsistent; the first part of it includes both real and personal estate, but in the close of the sentence, it is narrowed down to “ plate, monies, goods and chattels, debts, dues and demands.” Under such ambiguous words, the heirs at law of Samuel Browne, *shall not be stripped of this prop- p-jgQ erty, nor shall the same go out of the family of the hus- *- band, without the clearest intention. This intention is to be collected from the whole of the will, so as to leave no doubt in the mind. Particular cases serve rather to obscure and confound, than to illuminate questions of this kind. 3 Burr. 1541.

The words “ as to all my worldly estate,” in the beginning of a will, unconnected with any particular devise, shew an intention to dispose of the whole estate, but will not carry an estate that is clearly omitted. 1 Dali. 226: Where a will began with “ for those worldly goods and estates, wherewith it has “ pleased God to bless me, I give and demise to A., her heirs “gnd assigns forever, all my lands at B., and I give and be- “ queath to A. aforesaid, all my lands at C.” A. only takes an estate for life, in .the lands at C., and the reversion descends, although the will contains a legacy of is. to the heir at law. Doug. 730, (759.) Whatever may have been former decisions, it is now clearly settled, that such introductory words are not of themselves sufficient to carry a fee. 8 T. R. 67. The rule of law is established and certain, that express words of limitation or words tantamount, are necessary to pass an estate of inheritance. Ib. 502. All his estate will pass every thing a man has ; but if the word all is coupled with the word personal, there the gift will pass only personalty. Cowp. 306. A strong instance of the inefficacy of introductory words to pass an estate in fee simple, is to be found in the same book, 657. Denn v. Gaskin. There must be express words or necessary implication, to vest in the devisee, an estate in fee simple. 3 Wills. 418. By a devise of “ all my goods, leases, estates, mortgages,” &c. an estate in fee does not pass. Cro. Car. 447, 449. The operation of the words “ all my estate,” is fully settled in Salk. 233. Countess of Bridgewater v. Duke of Bolton. But where estate is mentioned generally, accompanied with personal things, it shall be restrained to personal.

Footnotes

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* Money will not pass by a devise of all goods and things of every kind, where the devisee has a money legacy at the outset of the will. 2 Atky. 113. The court will intend an intestacy, in favour of the heir at law, unless there is a clear intention to pass the real estate. Ib. 103.

i8o

CASES IN THE SUPREME COURT [Mar., [Doughty’s Lessee v. Browne et e contra.]

The court stopped Mr. Milnor, who was prepared to answer the cases cited, and to cite his law authorities. They said it ivas impossible to doubt the intention of the testator, on the face of the will. He has used strong introductory words, which fully *i8il ev*nce *^s intention of disposing of all his property. He i has given all the rest of his estate, both real and personal, after payment of his debts and funeral expen ces, and a legacy of iol. to his nephew, unto Louisa Browne his wife. The only difficulty on the will, seems to be, the discovery of any legal or rational grounds, why she should not take an estate in fee simple in the premises.

Judgment for Doughty and Groves in both suits.

The following cases were cited by Mr. Milnor on the trial. 2 Bac. 53, Divise, C. Murray v. Wise and wife. 2 Vern. 564. Prec. Cha. 264. 1 Eq. Ab. 177, pl. 15. Countess of Bridgwater v. Duke of Boulton, 1 Salk. 236. 6 Mod. 106. 1 Equ. Ab. 177, pl. 17. Carter v. Horner, 4 Mod. 89. 1 Show. 348. 1 Equ. Ab. 177, pl. 16. Reeves v. Winnington, 3 Mod. 45. 2 Show. 249. 2 Equ. Ab. 299. pl. 4. Ibbetson v. Beckwith, Talb. Cas. 157, 160. 2 Equ. Ab. 302, pl. 23. Tanner v. Morse, Talb. Cas. 284. 3 Wms. 295. Scott v. Alberry, Com. 337, 340. 2 Equ. Ab. 301, pl. 19. Wilson v. Robinson, 1 Mod. 100. Barry v. Edgworth, 1 Equ. Ab. 178, pl. 18. 2 Wms. 523. Ridout v. Pain, 3 Atky. 486, 493. 1 Vez. 10. Bailis v. Gale, 2 Vez. 48, 49, 51. Hurst v. Earl of Winchelsea, 2 Burr. 879. 1 Bla. Rep. 187. Holdfast ex dem. Cowper v. Marten, et al. 1 Term Rep. 411. Fletcher v. Smiton, 2 Term Rep. 656, 660. Loveacres ex dem. Mudge v. Blight and wife, Cowp. 352, 353. Grayson v. Alkinson, 1 Wils. 333. 1 Bac. Supp. 364. Doe ex dem. Burkit and wife, et al. v. Chapman, 1 H. Bla. 223. Smith et al. assignees v. Coffin, and wife, 2 H. Bla. 444. Anonymous, 3 Dal. 477. Tuffnell v. Page, 2 Atky. 37, 38. Macaree v. Tall, Ambl. 181. Styles ex dem. Rayment and wife v. Walford, 2 Bla. Rep. 938. Thellusson v. Woodford, 4 Ves. jr. 311.

Cited in 19 Pa. 90.

The book adds, “ but never, where real estate is mentioned; for then the per- “ sonal things mentioned, shall be considered only an enumeration of those specific “ things.”