2d. That if he did not, yet the lessor of the plaintiff Lambert's cannot recover. 1st. The word estate, in the devising clause of a will, where it refers to land, denotes and carries the testator's interest in the land. And there is no difference in construction *of law, whether the words are "all my estate," or "all the estate." Both carry the whole interest of the testator. In the present case there are no words of locality that operate as description, and prevent the fee from passing. It is admitted that the word estate, where it is coupled with personalty, shall be restrained, and will not carry the fee of lands; upon the principle noscitur ex sociis. This case is not within this distinction, because the word estate refers wholly to the land, and the whole personal estate is disposed of by a subsequent, independent clause. Consequently, no cases can apply but where the expressions are similar to those of the present will, and refer to lands. In the case of Wilson v. Robinson, 2 Lev. 91. 1 Mod. 100. 25 Car. II. ann. 1672, the words were, " all my tenant right estate at Brigisend in Underbarrow," and it was held that they passed the fee. This is the general rule of law, and is uniformly supported by the authorities from the year 1672 to the present time; except the case cited by the plaintiff's counsel, from 2 P. Wms. The case in 2 Lev. 91. is exactly like the present; the word lands is used in the same sentence, and in the same manner as in the present case. The word estate, in wills, always means the interest, unless controlled by words of restriction. Words of locality will not restrain the force of the word estate. In the case of The Countess of Bridgewater v. Duke of Bolton, 1 Salk. 236. 6 Mod. 106. S. C. the words were, "all other my estate real and personal not otherwise disposed of by this my will, for to be given by him to his children as he shall think convenient, I solely trusting to his honour and discretion that he will give them such provision as will be necessary.". "Et per Holt, Ch. J. who delivered the resolution of the court, the rents pass by these words "all my real and personal estate," for the word estate is genus generalissimum, and includes all things real and personal, and the fee of the rents passes, at least the whole estate of the devi Lessee V. Paine. *110 Lambert's Paine. *111 sor; for all his estate is a description of his fee. pleading a fee-simple, you say no more than seisitus in dominico suo ut de feodo; and in formedon, or other action, if a fee-simple be alleged, you say cujus statum the demandant now has." And he held "that devising all his estate, and *all his estate in such a house, was the same, and that all his estate in the thing passed in either case." The next case is that of Barry v. Edgeworth, 2 P. Wms. 323. anno 1729, which overrules the case of Chester v. Painter, cited by the plaintiff's counsel from 2 P. Wms. 235. anno 1725. In this case of Chester v. Pain ter, the court probably took the whole will together, and from the testator's having used the word heirs in some of the devises, and omitted it in the devise in question, concluded that it was not his intention to pass the fee. In the case of Barry v. Edgeworth, the words were, "all her land and estate in upper Catesby, with all their appurtenances," and the Master of the Rolls held it to be decided by the case of The Countess of Bridgewater v. Duke of Bolton, 1 Salk. 236. and said, "the word estate naturally signifies the interest rather than the subject, and its primary signification refers thereto; and although the devise be of all her land and estate in upper Catesby, this is not restrictive with respect to the estate intended to pass by the will, but only as to the land." "And as the word estate has been agreed and settled to convey a fee in a will, it would be dangerous to refine upon it; for then none could give any opinion thereupon." This case refers to that of Murry v. Wyse, 2 Vern. 564. anno 1706, where the words "all the rest and residue of his real and personal estate whatsoever," were held to pass a fee. Precedents in Chan. 264. S. C. In the case of Ibbetson v. Beckwith, Cas. temp. Talbot, 157. the words were, 66 as touching my worldly estate, wherewith it hath pleased God to bless me, I give, devise, and dispose of the same in the manner following." Then follow two devises of "estates," burdened with the payment of debts and legacies, which were admitted to carry a fee; after which came the devise in question: "Item, I give unto my loving mother all my estate at Northwith close, North closes, and my farm held at Roomer, with all my goods and chattels as they now stand, for her natural life, and to my nephew Thomas Dodson, after her death, if he will but change his name to Beckwith; if he does not, I give him only 20l. to be paid him for his life out of Northwith close, North close, and the farm held at Roomer; which I give her upon my nephew's refusing to change *his name, to her and her heirs for ever." The question was, whether Thomas Dodson took an estate for life or in fee. The Lord Chancellor decreed that he took the fee; and said, that the word estate carries the fee, and that no case had been cited "to warrant the altering the known legal signification of it." See also Gilb. Devises, 25. So in the case of Bailis v. Gale, 2 Vez. 48. anno 1750, testator devised to his wife all that estate he bought of Mead for so long as she shall live; and in another clause said, “I give to my son, Charles Gale, all that estate I bought of Mead, after the death of my wife." The Lord Chancellor said, that the word estate is admitted to be sufficient to make a description not only of the land, but the interest in the land; and he held that the fee passed to Charles. The case of Hogan v. Jackson, Cowp. 306. shows that the word estate is sufficient to pass all the interest of the testator in the thing devised. So in the case of Loveacres v. Blight, cited from Cowp. 355. Lord Mansfield says, "the word estate comprehends not only the land or property a man has, but also the interest he has in it." And in Denn v. Gaskin, Cowp. 659. he puts the words, "all my estate," "all my estate," as an example of an expression tantamount to words of limitation. See also the case of Hodges v. Middleton, Doug. 434. where the argument of counsel is strong to the same effect. All the subsequent cases refer to that of Barry v. Edgeworth, 2 P. Wms. 523. and none of them refer to that of Chester v. Painter, in 2 P. Wms. 335. The case of Right v. Sidebotham, cited from Doug. 763. does not apply to the present case, as the words of that devise were, "all my lands, tenements and houses," and not all the estate, as in our case. The authority from Gilb. on Devises, p. 24. is answered by p. 25. and a reason why a fee did not pass in the case in p. 24. is, because the word estate was coupled with personalty. The case of Frogmorton v. Wright, Lambert's Lessee V. Paine. *112 Lambert's Lessee V. Paine. #113 cited from 3 Wilson, 418. had no words descriptive of the testator's interest, and the case of Fletcher v. Smiton, cited from 2 T. R. 660. is a strong case to show that the word estates will carry the fee, unless restrained by other words, clearly showing a contrary intention. A description of the place cannot, in reason, restrict the operation of the word *estate, because, unless the place be named, you cannot tell either what land, or what estate the testator meant to pass. But, it is said, there is a difference between the expressions, "all my estate," and "all the estate," and that the former more clearly indicates the interest than the latter. Nothing but the refinement of ingenious men could find a diversity in these expressions. When a testator is disposing of his worldly affairs, it is his own property that he means to dispose of, and not that of another person. When, therefore, he uses the expression, the estate, it means the same as his estate. But this subtlety of construction was soon exploded in express terms. It was suggested by the counsel, in the case of Bailis v. Gale, 2 Vez. 48. but Lord Hardwicke held, that it makes no difference which mode of expression is used. So there was once an attempt made to distinguish between the words "at" and "in," such a place; but this was overruled by Lord Talbot, in the case of Ibbetson v. Beckwith, Cas. temp. Talbot, 157. The word "at" was used in the case in 2 Lev. 91. and in the case before Lord Talbot. But the word "in" was used in the case of Barry v. Edgeworth, 2 P. Wms. 523. yet the decisions in those cases were all the same way. From this chronological view of cases, it seems clear that the word estate, in a will, carries the whole interest of the testator, unless there are other words clearly indicating an intention to give a less estate. No such words appear in the present will; hence it follows, that the whole interest of the testator was devised to the defendant. But, 2dly. If Doctor Gilmer took only a life-estate, yet the lessor of the plaintiff is not entitled to re cover. 1st. Because John Harmer stands before him in the first will; and if the doctrine of antenati is correct Lessee V. Paine. *114 it applies to him as much as to Lambert, and, there- Lambert's fore, upon the death of Doctor Gilmer, the estate vested in John Harmer, who was the person last seised. But the special verdict does not find Lambert to be the heir of John Harmer, but of George Harmer, which is wholly immaterial. If Lambert is not the heir of the person last seised, he cannot recover. For if the first devise to John Harmer took effect, the contingent devise to Lambert could not; and, therefore, if the latter is entitled at all, it must be as heir of John Harmer, and not as devisee of George Harmer. Equitable estates are governed by the same rules as estates at law. George Harmer died in 1786; John Harmer died in 1793. Either John Harmer was an alien, or he was not. If he was not an alien, then he took under the devise, and it is not stated who was his heir. If he was an alien, then he was or was not competent to take as devisee. If competent to take, then the record does not state Lambert to be his heir. If he was not competent to take under the devise, neither is Lambert, for the same reason. But if Lambert can take as devisee, so could John Harmer, and the lessor of the plaintiff must then show a title under him. The will states John Harmer to be the testator's brother, and Lambert to be his sister's son; but it does not thence follow that he was heir at law of John Harmer; for the sister might be of the half blood. Every thing must appear in the special verdict to complete the plaintiff's title; and upon the strength of his own title only can he recover. But the doctrine of antenati is not correct. The king, under whose allegiance the two were born, is the common bond which connects the inheritable blood. The English doctrine is, that a man can never expatriate himself, and hence they have allowed our citizens, born before the revolution, to inherit to British subjects. But, by the revolution of 1776, and the declaration of independence, new relations took place. A new sovereignty was created, to which British subjects, not in this country at that time, never owed allegiance, and, therefore, they can have no inheritable blood as to lands in this country. VOL. HE 1 |