Edelen's Lessee v. Smoot , 2 H. & G. 285 ( 1828 )

Archer, J.

delivered the opinion of the court. The court are called upon to determine what estate Joseph Boarman took under the. will of his father John B. Boarman, in that part of the tract of land called Calvert’s .Hope devised to him.

The clauses of the will, having reference in any way to this particular devise, are in the following words: “Item. I give and bequeath to my beloved wife Elisabeth Boarman, a tract of land purchased of Charles Smoot, whereon I now live, during her natural life, and after her decease to her son Richard Boarrnan, to him and Ms heirs forever. Item, 1 give and bequeath to my sons Joseph and Raphael, all that tract or parcel of land being part of Calvert’s Hope, to be equally divided between the above named Joseph and Raphael, and my son Joseph to have his first choice of the above mentioned land. Item. I also give and bequeath to my two sons Joseph and Raphael, a small tract of land lying in Zachidh Swamp, near the Old Bridges; called Ilazzard, containing seventy-one acres, to them and their heirs forever. In ease either of my sons dieth before they come of age, then their part or parts of land to be equally divided between the other two above mentioned brothers, or to the survivor of the above named Joseph, Raphael and Richard. ”

Were it not for the last clause which devises Joseph’s part over to his surviving brothers on the contingency of his dying before he arrive to the age of twenty-one, the case would be indisputably clear. In the clause containing the devise to Joseph, no words of limitation are added; and that, and the subsequent clause, being entirely distinct, the words of limitation whieh it contains, cannot have reference to, or attach themselves to the previous clause. In Gilbert on Devises, 21, it is said, “if a man devises Blackacre to his son; Item, he gives Whiteacre to his said son and his heirs — the son hath but a life-estate in Blackacre, because there are two,distinct devises. But if he had devised Blackacre, and also fVhiteacre, to his son and his heirs, the son would have had a fee in both.” And the reason assigned is, that it is one entire devise, and the word heir has relation to the whole sentence. The word Item is used to marl? and distinguish the different clauses in a will, and they are so distinguished and separated here; and this will, standiug on those two clauses alone, comes precisely within the scope of the authority cited, and would be clearly a life-estate. But the doubt arises upon the last clause, “and in case either of my sons die before they come of age, then their part or parts of land to be equally divided between the other two above mentioned brothers, or to the survivor of the aboye mentioned Joseph, Raphael and Richard,” which, it is urged, is evincive of the testator’s intention to pass to Joseph an estate in fee in the first devise to him, and that consequently it has the effect of defining and enlarging the estate which would otherwise have been transmitted. The case of Frogmorton v Holyday, 3 Burr. 1618, is relied upon to establish this position. That case contained a clause similar to the clauses under consideration, and it was adjudged to pass a fee;'but it must be remembered that there were other clauses which had a material' bearing in the decision of that case, from all of which, taken together, it was adjudged to be the intention of the testator to pass a fee, as the general clause manifesting a disposition to dispose of all the testator’s wordly affairs and estates, and a charge of fifty pounds to be paid out of the rents and profits of the estate; which, though in ordinary cases, could have no effect in enlarging a devise without words of limitation to a fee, yet in this case was considered, under its peculiar circumstances, as having a tendency, combined with other clauses, to manifest, the intention to give a fee. There was there also a sweeping residuary clause, in which no mention was made of the real estate. Lord Mansfield grounded his opinion of the intention to pass a fee from all the above clauses combined. Mr. Justice Wilmot, it is worthy of remark, however, relied solely on the charge upon the annual rents arid issues and profits of the estate, upon the general clause manifesting a disposition to dispose of all her estate, and on the residuary clause, and did not advert to the devise over, if the-devisee died in his minority, as'having the least effect upon his mind.

But if any doubt could be entertained relative to the construction of this will, those doubts- are entirely dissipated by an adjudication oí this court directly in point, in Owings v Reynolds, et al. Lessee, 3 Harr. & Johns. 141. There J. Owings devised as follows: “I give and bequeath to-my wife my dwelling plantation during her natural life, and after her decease to fall to my son Lot Owings,- and if' he should die under age, it is my will the said land should fall to my son Caleb Owings, and my daughter A. Odell” And it was determined that Lot Owings took only a life-estate, and the limitation over, if Lot Owings died in his minority, was determined to have no effect in passing a fee; although there was in the will a general clause* expressive of an intention to dispose of his whole estate, that being considered only as matter of form, and as not having much influence, and only in favour of the clear intention of the testator.

In this will now under our consideration, there are no clauses or words from which an intention can be elicited to pass a fee, nor are there any clauses, other than those which have been above stated, that can by possibility be considered as having the least bearing on the subject.

We are of opinion, therefore, that Joseph Boarman took, ©nly a life-estate in the tract of land called Calvert’s Hope.

JUDGMENT AEI’IRMER.