Neide v. Neide , 4 Rawle 75 ( 1833 )

The opinion of the court was delivered by

Huston, J.

Joseph JVeide, the grandfather of the plaintiff and father of the defendant, made his will,-written by himself on the 19th day of May, 1796, which was proved on the 29th day of December, 1798; he was a farmer, and not learned, as appears by the spelling, which is very incorrect. After a short preamble, it contains as follows: — “ Principally, and first of all, I give and bequeath to my eldest son, John Neide, my late pnirches, from Elizebeth Claxon, as also, four akres of woodland, being a-corner laying between the Bristo field and Sharplesses’ land, further J give to my said son John, the corner piece of mash from the cross bank out to lo low water mark, with a privilege to pas and repas to and from said mash, through the plantation, also to quarry stone be on (beyond) the said mash, as also, I give and bequeath to my son John one hors and one cow.” He then gave to each of his five daughters a legacy in money; and to his son Jacob fifty pounds to be paid in one month after his decease. Then to his son Benjamin, twenty acres to he taken in the Bristo field, to begin at William Swaffers’ and running from thence by the Percimen tree to the great road; then other small devises to some grandchildren, and to a mulatto boy, and proceeds, “ and I do give and bequeath the remainder of my lands not heretojfore willed to my son Joseph Neide, but in case he should die without issue, then my son John Neide, shall have two shairs, and the remainder to be equally divided among the survivors,” and appointed Joseph his executor.

It has long ago been said, that after the statutes of wills in the time of Henry 8, the devisee was called for want of a better term, and to distinguish him from the heir, a purchaser, and the will of a testator was compared to a deed, and the same, or nearly the same, legal accuracy in designating the quantity of estate, was required in a will, which was requisite in a deed. As the now common accomplishment of writing was then rare, and some of the learned must be applied to before a writer could be found, the inconvenience was not in those days great. Within a century, however, more in proportion could write, though they could not write in legal phrase; and it became a question, what words pass a fee in a will. Lord Hobart, than whom, says Chief Justice Willes, “ a greater man never lived,” laid down some principles which are law yet, and beyond which the law has not advanced much, though other expressions than those on which he decided, have been held within the principle he laid down. In Hobart, page 2, Widlahe v. Harding, the testator devisod to his cousin Agnes Harding, and her assigns, his dwelling house for ninety-nine years, “ and my said cousin Agnes Harding, shall have my inheritance, if the law will allow it,” and adjudged she took a fee. In page 32 of his reports, we find this expression, “ If a devise do sufficiently and certainly shew the intent of the devisor in the substance, though the circumstances fail, or be defective, I care not.” In page 75, Spark v. Purnell, he says: “If by my will I say J. S. shall be heir of my lands, he shall have it in fee; this though /• S. is no relation,”

I shall notice only a few of the many cases on this subject, observe ing that many judges have said, that when an unlearned man gives a horse, and in the same sentence or a different one gives a house, and the courts decide that each shall not hold absolutely and forever, they always disappoint the intention of the testator. I admit, however, that we are not at liberty to decide that a simple devise of lands to a man unconnected with any thing else passes a fee, for we would by so doing, unsettle estates for some years back. The legislature alone can do it prospectively.

Where the words used, not only apply to land, but to the quantity of interest which the testator has in it, or which he disposes of, that interest passes. There are many contradictory cases, as between, ‘I give my estate,’and, ‘I give my estate in A.,’ or, ‘my estate at A.’ but the law seems to have settled down in this, that each of these expressions passes a fee, unless restrained by other parts of the will. —‘All my effects’ — ‘ whatever else I have in the world;’ (Talbot’s cases, 286 ;) — ‘ all lam worth,’ ‘ what I die possessed of,’ ‘ what is left after my debts are paid,’ — the words, property, — substance, and many others have been held to pass a fee. In short, there has been an astuteness to find a meaning which can justify or excuse the courts in giving afee where it is plain the testator intended it;— and though somejudges have held in some cases that their predecessors had gone too far, and have doubted some of the decisions, yet the current has still set in the same direction, and cases doubted by one judge have been considered clear of doubt by his successors. I refer to the authorities collected in 2 Preston on Estates, from 90 to 186, in Roberts on Wills, Powel on Revises, and many other books.

It is apparent however that it is not so much the particular word or phrase used, as the context, or the scope of the whole will, which passes the fee; every word and expression in the English language has different meanings in connection with different words or applied to different subjects. The express devise to a man and his heirs and assigns, is often cut down by other' expressions or by being applied to a long lease, to estate tail or to an estate for years; and so a devise without words of addition may carry a fee if the expression used shows that the testator had in view the quantity of interest as well as the description of the property given. The rule once was, that the heir at law cannot be disinherited by any other than express words or necessary implication, In Fagge v. Heaseman, Willes, 141, Chief Justice'Willes shews, that this rule though often repeated has not been acted on, and is inconsistent with many decisions of judges who have used it, and he says the true rule is, that it ought plainly to appear to be the intent of the testator, or the heir will pot be disinherited.

In our own courts the same principles have been laid down in nearly the same words. 2 Binn. 19. 6 Binn. 97. 1 Yeates, 250, 380. 9 Serg. & Rawle, 434, and other cases.

In this will the word heirs no where occurs. The words my late purchase as used, may and naturally do as well as a description of the property include a description of the estate or interest in the property. The case in 2 Vesey, 48, has nearly the same phrase and was held to pass a fee. But it was contended the devise to Joseph of the remainder of his lands not heretofore willed, showed that John had only a life estate and the remainder to Joseph. The answer is, that he gives to Joseph the remainder of his lands not before willed ; not the remainder of his estate in those lands, and further that this construction will make the will absurd. The testator could not have intended to give to John for life, and after his death to Joseph, and after Joseph’s death two shares to John. There were other lands not before mentioned to satisfy the devise to Joseph; those lands he gave to Joseph, and no others.

On the whole, we have found no case directly in point. The case above cited in 2 Vesey, 48, is the nearest to it. The very words ‘ 1 give my new purchase,’ &c. are put in Hobart, 32, as an example that a fee may pass by those words in a certain connection with other words; we think however that the phrase, * my late purchase,’ is equivalent to, ‘ what I lately purchased,’ and that would describe the interest given as well as the property given. The ‘ four acres of woodland’ is so coupled with * the late purchase,’ that it goes as the other does, that is, in fee. John then, having devised this property to Jacob, the fee simple is in Jacob, and judgment must be entered for him.

Judgment for the defendant.