Lambert's
Lessee

v.

Paine.

* 115

But it is said that Lambert, if an alien, could take and hold until office found.

*If Lambert, as an alien, could take, so could John Harmer, and, therefore, upon his death the inheritance devolved upon the commonwealth, without office. Co. Lit. 2. b. 1 Bac. Abr. 81. An alien can never take by operation of law, and, therefore, a feme alien cannot be endowed, nor can an alien be tenant by the curtesy. 1 Bac. Abr. 83. An alien purchaser may take and hold till office found; and may protect himself against an ejectment, because no one who has not a better title, can recover against the possessor. But he cannot maintain an ejectment. If John Harmer took any thing, it was the reversion in fee, subject to the life-estate of Gilmer. If John Harmer died before Gilmer, then, upon the death of John Harmer, this reversion vested in the commonwealth. If Gilmer died before John Harmer, then, upon the death of the latter, the whole estate vested in the commonwealth.

Then, as to the treaty of 1794. John Harmer having died in 1793, and the inheritance being, by his death, cast upon the commonwealth, it was not a subject within the meaning of the treaty. John Lambert did not, at that time, hold the land, for it had gone to the commonwealth of Virginia. The treaty did not intend to devest a right actually vested in the commonwealth.

Mason, in reply. The word estate may mean the interest as well as the thing; but whether it is to have that sense annexed to it or not, depends upon the intention of the testator, collected from the whole circumstances of the case. All the facts found by the verdict are to be taken into consideration, to form a correct idea of the testator's intention. By the first he clearly meant to give the fee to his brother and his heirs. The second will does not expressly revoke the first, and contains nothing which can be construed into an implied total revocation, unless the word estate conveys a fee to Doctor Gilmer. All the cases which have been cited are governed entirely by the intention of the testator. Where the intention was to pass a fee, there the word estate has been adjudged sufficient te

earry the intention into effect. The words "the estate called Marrowbone," in common acceptation, mean the tract of land called Marrowbone. They cannot necessarily mean the fee-simple, because the estate would still be called Marrowbone, whether the interest was for life or for years.

The case of Chester v. Painter, 2 P. Wms. 336. has not been overruled. It is consistent with all the other cases. It did not appear to be the intention of the testator to give the fee, and, therefore, although the word estate was used, it was held that the fee did not pass. This shows that the word estate is not alone sufficient. Where words may be used in a large or in a contracted sense, the true construction is to be sought only by the intention of the person using them.

In the present will of 1786 there is no preamble stating it to be the intention of the testator to dispose of all his estate by that will; nor is there any residuary devise. As the first will is not expressly revoked, the two wills are to be considered as forming but one will. In such a case, the rule of construction is, that every clause shall be carried into effect if possible. No repugnance shall be presumed, if the whole can stand together; and if one construction will reconcile the various parts, and another will make them repugnant, the former is to be adopted. To suppose that the word estate, in the last will, conveyed the fee, would be to create a repugnance to the first will, and, therefore, that construction is not to be given to the word if it will bear another. It must be admitted, that it may be used in two senses. In one it means the thing and the interest; in the other it means the thing only. The one may be termed the technical, and the other the common sense of the word. By giving it the latter construction, the two parts of the will can be reconciled, and, therefore, that construction ought to be adopted.

It is conceded that the legal estate in the trustees cannot be set up against the cestui que trust. It ought also to be admitted, that this doctrine holds between those parties only; but as to every body else, the trust and the legal estate remain separate to support the trust. In such a case the commonwealth cannot take by office

7

Lambert's

Lessee

V.

Paine.

* 116

Lambert's
Lessee

V.

Paine.

*117

found, but must sue in chancery to have the trust executed for its benefit.

It will not be contended that the trustees were not competent to take and hold the property in trust. The *devises to John Harmer and John Lambert were contingent. If the contingency has not happened, the trustees still hold for the purpose of executing the trust when the contingency shall happen. John Harmer died in 1793, before the contingency happened upon which his devise depended. Upon his death, John Lambert's right under the will accrued. He had a title under the trust; and the treaty of 1794 protects it. The treaty is a nullity unless it protects such rights as this. If it protects only good and indefeasible titles, it is wholly useless, for such titles can protect themselves.

But if any right vested in John Harmer, then the title of Lambert is good as his heir at law. For the jury have found him to be heir at law of George Harmer; but he could not be the heir of George, if John left any children; and if John left no children, then is Lambert heir to John. The conclusion is irresistible; as much so as if the jury had found it. As to the objection that Lambert's mother might be sister of the half blood, it would prevent him from being heir to George as well as to John.

February 18.

This cause was again argued at this term by the same counsel, before Cushing, Paterson, Washington, and Johnson, Justices. Marshall, Ch. J. having formerly been of counsel for one of the parties, did not sit, and Chase, J. was absent.

The argument took nearly the same course as before.

Minor, for the plaintiff in error, in addition to his argument as already reported, contended, that the rule of the common law, which requires words of limitation to create a fee-simple, was never departed from until after the statute of wills; and even then the courts did not depart from, but only softened, the rule; and that only

in cases where the intention was clear to pass the fee. Lambert's 2 Atk. 103. Timewell v. Perkins.

He then went into a minute examination of the following cases, viz. Cowp. 240. Beawes v. Blackett. 2 Vez. 48. Bailis v. Gale. 2 Lev. 91. Wilson v. Robertson. 1 Mod. 100. S. C. 1 Salk. 236. Countess of Bridgewater v. Duke of Bolton. 1 Vez. 228. Goodwin v. Goodwin. Cas. temp. Talbot, 284. Tanner v. Morse. 3 P. Wms. 295. Tanner v. Wyse. 2 Vern. 690. Beachcroft v. Beachcroft, and Cas. temp. Talbot, 157. Ibbetson v. Beckwith; and from the whole deduced this principle, that the intention of the testator must be so clear as not to admit of a doubt; for if there is the smallest ground of doubt, the court will not disinherit the heir.

He also cited the case of Markant and Twisden, from Cas. Eq. Abr. 211. pl. 22. where it was held, that the words" all the rest and residue of my estate, chattels real and personal," carried only a life-estate; and the case of Bowman v. Milbanke, 1 Lev. 130. in which the words were, "I give all to my mother, all to my mother." Yet there, although every feeling of the heart is engaged in support of that filial piety which could so fervently speak its intention of giving his whole estate to his mother, it was held that the land did not pass. In our case, the feelings are all thrown into the opposite scale: the devise is to a stranger in exclusion of the heir; and that heir the very brother to whose bounty the testator was indebted for this very estate.

"Uncertain words in a will must never be carried so far as to disinherit the heir at law. And though there be words which of themselves would disinherit him, yet, if they come in company with other words which render their import less forcible, they ought to be construed favourably for the heir." 12 Mod. 594. Shaw v. Bull, in which case the words of the devise were, "and all the overplus of my estate to be at my wife's disposal, and make her my executrix."

In the case of Moore v. Denn, 2 Bos. & Pull. 247. the words of the will were, First, I give and devise unto my kinsman, Nicholas Lister, all that my customary or copy hold messuage or tenement, with the appurtenances, situate and being in Ecclesfield aforesaid, as the same is now in the tenure or occupation of Valentine Sykes; all the rest of my lands, tenements and heredi

Lessee

V.

Paine.

* 118

Lessee

V.

Paine.

* 119

Lambert's taments, either freehold or copyhold, whatsoever or wheresoever, and also all my goods, chattels, and personal estate, of what nature or kind soever, after payment of my just debts and funeral expenses, I give, devise and bequeath the same unto my loving wife, Sissily Carr, and I do hereby nominate and appoint her sole executrix of this my last will and testament." Upon this devise it was decided by the house of lords, on a writ of error, that the wife took only an estate for life.

*120

In the present case, it is sufficient for us if the words of the will are doubtful; for if the intention to devise the fee is not clear beyond all doubt, the presumption is in favour of the heir at law.

2. Upon the question of alienage, in addition to the authorities produced on the former argument, he cited Vaughan, 279. s. 5. and 286. s. 3. that a person born in the plantations may inherit lands in England; and 2 Tuck. edit. of Bl. Com. App. p. 53, 54. 61, 62. that the antenati of England, who remained British subjects, after the declaration of independence, were still capable of inheriting lands in America, or holding those which they already possessed.(a)

Key, for the defendant in error, upon the question of the devise, took the same ground as in his former argument.(b)

There is a difference in the effect of the word estate, when used in the preamble of a will, or in the residuary *clause, and when used in a specific devise. When

(a) JOHNSON, J. Does not the last clause of the will of 1786 show that the testator meant, by that will, to dispose of his whole estate?

The word

Mason. That clause relates only to personal estate. property is coupled with negroes and horses, which shows in what sense he meant to use it. But if it comprehends the reversion of the real estate, yet, as he appointed no person to make the sale, the reversion would descend to the heir at law, until some person should be appointed by proper authority, to carry that clause of the will into effect.

(b) WASHINGTON, J. Is the will of 1782 so executed and recorded as to pass lands?

Key. The jury have found that he executed it, and it is not necessary that a will of lands should be recorded under the laws of England, and the law is considered the same in Maryland. I do not object to the will on that

account.