Hance v. West ( 1867 )

The opinion of the court was delivered by

Dalrimple, J.

The question in this case is, whether by the will of William Brinley, deceased, his son Vincent took a fee, or an estate for life only, in the premises in dispute. The testator devises all his real estate to his sons. No one of the devises contains words of inheritance. That to Vincent is as follows : “ I give and bequeath to my son, Vincent Brinley, the use of that part of the farm, (which is described,) also two lots of woodland ***** aiso one acre 0f salt meadow.”

The premises in dispute are that part of the farm given to Vincent. There is no devise over of any of the lands, and nothing further in the will evincing the intention of the testator as to the quantum of interest which Vincent should take, except in a subsequent clause of his will, the testator speaks of a certain salt meadow as adjoining that which he had given his son Vincent.

It is assumed by the counsel of defendants, in the written brief which he has submitted to the court, that the devise of the use of the farm, gives an estate for life only. No authority is cited in support of this assumption. I do not think it can be maintained, either on principle or authority.

A devise of the use of lands, is, in effect, a devise of the benefit, income, or profits arising therefrom. It was held, in the case of Den v. Manners, Spencer 142, that a devise of the rents, issues, and profits of land, is a devise of the land. To the same effect is the case in 9 Mass. 355. See, also, Comyn’s Dig., tit. Estates by Devise, note 1. The use of lands is the right to take the rents, issues and profits. The devise now under consideration- must, therefore, be held to be a devise of the rents and profits. It gives a legal estate of the same duration as if it had been of the land in terms. I find nothing in the will, taken as a whole, which satisfies me that the testator intended, by the phraseology used in making the devise to Vincent, that he should take but a life estate. There is no devise over either to the children of Vincent, or to any other objects of the testator's bounty. At the common law, neither Vincent nor any of his brothers would, under this will, take in the lands devised to them, respectively, a greater estate than an estate for life. But by our statute of 1784, (Nix. Dig., p. 920, § 39,)^* it is enacted that all devises made of real estate, in which words of inheritance are omitted, and no expressions are contained in the will, showing that such devise was intended to convey only an estate for life, and no further devise of the devised premises being made after the decease of the devisee to whom the same shall he given, in all such devises it shall be taken and understood to be the intention of the testator to grant an absolute estate in fee in the same.

There are no expressions contained in this will which, properly construed, show that the.devise to Vincent was intended to convey an estate for life, and, as already stated, there is no further devise of the lands after the death of Vincent. The case is, therefore, within the operation of the statute. In the words of. the statute, the devise must “ he construed, deemed, and adjudged in all courts of law and equity in this state, to convey an estate in fee simple to the devisee for all such devised premises, in as full a manner as if the same had been given or devised to such devisee, and to his heirs and assigns forever, any law, usage, or custom to the contrary notwithstanding.”

It: would be a forced construction, to hold that the testator intended, by the expression use, to limit Vincent’s interest in the farm to an estate for life, and by his omission to insert that word in the devise of the woodlands and salt meadow, that he should take in them an estate in fee. I cannot think that the testator intended, by the mere change of expression, that Vincent should take a larger and more beneficial estate in the woodlands and meadow than in the farm, when the two forms of expression, in law, denote precisely the same estate. The only fair construction to be put on the language used, is that the devisee took the same estate hi all the lands devised to him : that is, an estate in fee. If, however, it is contended that by the proper grammatical construction of the terms of the devise, the word use applies to all the lands devised to Vincent, it must be borne in mind that the testator, in speaking of one of the lots, refers to it as the one which he had given his son Vincent. I cannot bring my mind to the conclusion that he would thus have spoken of it, if he understood that he had not given it to Vincent, according to the ordinary acceptation of these terms. It seems to me quite clear, that he would not have used such words, if he had understood that Vincent was not to have the lands, but only the use thereof during life. We are now asked to hold that the testator did not give the lands to Vincent, except in a limited sense, and in such way, that upon his death they would go, not to the children of Vincent, but to thé testator’s heirs at law, or residuary devisees. Besides, it will be found, on examination of the other clauses of the will, that the lands devised to the other sons, who, it is admitted, take an estate in fee, are referred to as having been given to them, in precisely the same terms as the testator refers to the salt meadow given to Vincent. Did the testator mean, by the same expression, to denote gifts of a different character? The whole argument in favor of defendants, on this point, must rest on the simple fact that in the devise to Vincent the word use is found, and in the devises to the other sons it is' omitted. This difference is wholly immaterial. In all other respects the devises are the same. Suppose, to the other devises there were annexed strict words of inheritance, but none to Vincent’s, though otherwise the same, would it not be directly in face of the statute to hold, that while the former gave a fee the latter did not ? Yet the case supposed is stronger than the one now before the court. What expression is there in this will, whereby it doth appear that the devise to Vincent was intended to convey an estate for life ? None, unless it may be the word use ; but that applies as well to an estate in fee as for life. Is there any further devise of the devised premises after the death of Vincent; to whom the same are given. It is not pretended that any further reference is made to them. To whom, then, but Vincent was the fee given ? The result is, therefore, the same, whether we give the strict technical meaning to the terms of the devise, or consider it with .reference to the context.

This view of the case renders it. unnecessary to consider the proper construction of the residuary clause of the will, under which the defendants claim. It may, however, be observed, that it is only by construction that that clause is made to include real estate at all.

Neither as devisees nor as heirs-at-law of the testator, did those under whom the defendants claim acquire any interest in the premises in dispute.

The Circuit Court of Monmouth should be advised that the plaintiff is entitled to judgment on the case stated, for the equal undivided one-lialf of the tract of land in the plaintiff’s declaration described.

* Rev., p. 300, § 13.