Lesse of Caldwell v. Ferguson

Shippen J.

It is certainly a settled rule of law, that in a devise of land by the will of even an illiterate man, who knows nothing of the use of- words of limitation,if no such words are added, or other words which show his intention to give a greater estate than for life it must be construed an estate for life only.

Rut wherever there are expressions in a will, which the court can lay hold of,(to enlarge the estate of the devisee, they will do go, to effectuate the intention of the testator.

The preamble of this will, makes use of the words “ touching his worldly estate. ” There have been various opinions in the books, respecting the effect of these words in a will. The latest cases however show, that though these words alone will not do, yet they amount to a strong circumstance, connected with other records, to demonstrate the testator’s intention of enlarging a particular estate. Upon this principle, is a case in Cowp. 357, where after introductory words “ touching my worldly estate, ” the following words were subjoined to a particular devise of land, “ to be freely possessed and enjoyed, ” and were adjudged to give a fee.

The devise in the case under our consideration, is short, and there are but few words to illustrate the intention of the testator. There are however some, which cannot fail to impress an idea, tha/t he meant to give a greater estate than for life. He appears to be entirely ignorant of the use of words of limitation, but he takes notice that the land he devises, is patented land; which shows that he had it in his mind, that he had a legal estate in fee simple in the premises, and not expressly restraining the duration of the estate, is one circumstance, (though I own but a slight one of itself,) to show he meant to give the whole estate, that he himself had in it, to his devisees. But further, he directs his executors to divide these hundred acres, from the quantity of two hundred acres he had immediately before devised to his brother in Ireland, the whole being one tract of 300 acres granted to him by patent. It appears to me, that the divisions of this land, must have been useless and nugatory, unless he meant to give an absolute property to his devisees in their several parts.

It is agreed in the case, that the land was altogether woodland, and entirely unimproved. Could the testator suppose, that either of his devisees would have laid out their labor and money in improving land, which they held on so precarious a tenure as their own lives, and must be surrendered up with all its improvements, to the heir at law, at their deaths ? By the law of England, the cutting down trees, in order to make improvements, would be waste, and a forfeiture of a life estate. Whether under the circumstances of this country, such an act would be determined to be waste here, it is unnecessary to consider at present. It is sufficient for me, that the allotting different parts of one tract of woodland to his two devisees, was indicative of his expectation that they would improve them for the benefit of their families ; which expectation he must have known to be vain, if he meant to give them a life estate only. He surely meant to give them a beneficial estate. An estate for life in such lands, would have been beneficial, so far only, as to make his devisees freeholders; which, benefit would be overbalanced, by subjecting them to the payment of taxes for a property, which could yield no income. On the whole therefore, I am satisfied in my conscience, from the words of the will, connected with the nature of the property devised, that the testator meant to give an absolute estate in fee simple, to the objects of his bounty.