King vs. Ackerman.

distinct subject from which to obtain the means of paying this legacy of $1,500 could not have entered into his contemplation, consequently the gift of these two pieces of land, placed as it is in one section, must be taken as an entirety; and the sum specified in the second clause of the will must be regarded as a condition imposed upon the devisee in respect to the whole property

mentioned in that section.

There is one view of the case in reference to the words of limitation which deserves attention concerning the Williams' lot, the devisee was to do and dispose of it as he might think proper. This certainly meant that he was to have it free of all charges and incumbrances whatever. If he was bound to raise $1,500 out of it he would not have power to dispose of it, as he might think proper. On the contrary the residue only would be delivered over to his absolute disposition. The Homestead is not declared to be unfettered and the intent of the testator must therefore have been to impose the charge with respect to that alone. This seems a conclusive answer to that part of the argument on the other side which asserts that the charge was imposed only with respect to the Williams' place.

Mr. Justice GRIER. It has been an established rule, in the construction of wills, that a devise of lands, without words of limitation, confers on the devisee an estate for life only. This rule was founded rather on policy than on reason; for while it favored the heir-at-law, it generally defeated the intention of the testator. This is acknowledged by Lord Mansfield in Loveacre vs. Blight, (Cowper); and the interference of modern legislation, to abolish the rule and establish a contrary one, is evidence of the correctness of his remark. This change has been effected by statute in England and most if not all of the States of this Union.

The will now presented for our consideration was made before this obnoxious rule was repealed in New York, and we are compelled to examine its provisions fettered by this technical, artificial, and now nearly obsolete rule of construction. Courts have always been astute in searching for some equivalent

King vs. Ackerman

popular phrase, or some provision of the will incompatible with such imputed intention, to rescue it from the effect of this rule. Thus, when a testator devises land without legal words of limitation, but adds that the devisee "may sell or do therewith as he pleases," he is presumed to have intended to give a fee, because such a power would be incompatible with a less estate. It is a long settled rule also, that where a devisee, whose estate is undefined, is directed to pay the testator's debts or legacies, or a specific sum in gross, he takes an estate in fee. The reason on which this rule is founded is, that if the devisee took a less estate he might be damnified by the determination of his interest before reimbursement of his expenditure. This rule, though founded on inference or implication, is nevertheless as technical and rigid in its application as that to which it is an exception: for the Court will not inquire into the relative value of the land and the charge; or, if the charge be contingent, will not weigh probabilities as to whether the devisee will ever be called on to pay it. The intention of the testator as to the limitations of an estate devised can be judged and decided only from his own language as contained within the "four corners" of his will. Parol evidence cannot be received to show that such inference was not founded on probability, or that this rule of construction. ought not to apply under certain circumstances. This would in effect be delivering the power and duty of construing the will to a jury.

The will of Lawrence Benson is very brief and is as follows: "In the first place, I give and bequeath unto my son, Benjamin L. Benson, all that estate now occupied by George Williams, to do and dispose of as he may think proper.

I also give and bequeath unto my son, Benjamin L. Benson the Homestead where I now live, situated on Harlem River.

Secondly. My will and intention is, that my son, Benjamin L. Benson, do give unto my grandchildren, after the decease of my wife, the sum of $1,500.

Thirdly. The income of these legacies, and also of my estate, real and personal, I give unto my loving wife, Maria Benson,

King vs. Ackerman.

during her widowhood, to do and dispose of as she may think proper."

It is plain that this instrument has been written by a person "inops concilii," and wholly ignorant of proper legal phraseology. He uses the term "bequeath" instead of "devise" in the gift of his real estate.

By the first clause he gives his two pieces of real estate to his son Benjamin, who appears to be the chief object of his bounty. By the second, he charges the sum of $1,500 on Benjamin to be paid to the grandchildren of testator.

By the third, he gives to his wife a life estate on all of his estate, real and personal, to be forfeited if she marry again. Now, we must observe,

1st. That the son has clearly but an estate in remainder in the lands devised to him.

2d. That it is a vested remainder.

3d. That this testator not only postpones the possession and enjoyment of the land devised to his son for an indefinite time, but charges him with the payment of a gross sum of money, which he will be personally liable to pay, for land which he may never personally possess or enjoy.

If the charge is sufficient in law to give the devisee an estate in fee by implication or presumption, how much stronger is this presumption when his enjoyment of it is indefinitely postponed.

But it is contended, that, because the testator has used the phrase "to do and dispose of as he may think proper," as regards the Williams' farm, and in the devise of the Homestead has omitted it, such omission as to the latter is equivalent to an express limitation of it to the life of the devisee; and that the Court ought to presume that the sum to be paid was intended as a consideration for the first only; and if they will not presum it for want of evidence of its sufficiency, that parol evidence ought to be admitted to show the value of the Williams' pro perty to have been more than sufficient to pay the sum plainly charged on both.

Now there is no established rule of construction that if a

King vs. Ackerman.

testator having devised two messuages to his son and charged the devisee with the payment of legacies that if he add this informal power as to one, it is equivalent to an expressed limitation as to the other. Nor is it a necessary inference or logical conclusion, arising from the omission to use certain informal words, which have been construed to show an intention to give a fee as to one, that the testator did not intend to give a fee in the other of the messuages charged. Besides, it is clear that Benjamin could not repudiate his obligation to pay the legacies by refusing to accept the gift of the Williams' farm, while he retained that of the Homestead. To conclude, therefore, from this fact that the testator did not intend to give a fee in both. would be mere conjecture, and that, with no sufficient reason to support it.

The face of this will shows that the testator did not suppose these informal words, giving a power to sell as to one, were necessary to enlarge the estate to a fee, much less that their omission would limit the devise of the other to a life estate, for he adds the same power to the life estate given to his wife.

If we were to indulge in conjecture, why this phrase was coupled with one of the estates devised and not with the other it would be, that the testator intended to confine the charge of the legacies to the "Homestead" and not the Williams' farm, or that he wished the one to remain in the family and name, while the son should be at full liberty to dispose of the other as he might think proper.

The rule of law which gives a fee, where the devisee is charged with a sum of money, is a technical dominant rule, and intended to defeat the effect of the former rule which itself so often defeated the intention of the testator.

Courts have always been astute, as we have said, to find reasons for rescuing a will from the artificial rule established in favor of the heir-at-law, and will not even be acute in searching for reasons to restore its force, where the statute has not abolished it We are not compelled to make this inference or implication through submission to any established rule of construction; on the contrary, we are required to make an exception tc one on

Chicago City vs. Robbins.

mere conjecture, and to introduce parol testimony as to value to justify a departure from it. A Court may look beyond the face of the will where there is an ambiguity as to the person or pro perty to which it is applicable, but no case can be found whore such testimony has been introduced to enlarge or dininish the estate devised.

We are of opinion, therefore, that Benjamin L. Benson took an estate in fee in both the messuages described in the will. The judgment of the Circuit Court is therefore affirmed with

costs.

CHICAGO CITY vs. ROBBINS.

1. A municipal corporation, having the exclusive care and control of the streets, is obliged to see that they are kept safe for the passage of persons and property, and to abate all nuisances that might prove dangerous; if this duty be neglected, and in consequence thereof, any one is injured, the corporation will be liable for the damages sustained.

2. The corporation, has, however, a remedy over against a private party who has so used the streets as to produce the injury, unless the corporation concurred in the wrong.

3. A private party is concluded by a judgment recovered against a corporation for his act or negligence, if he knew that the suit was pending and could have defended it.

4. An express notice to such party to defend the suit, is not necessary to create his liability.

E. But in an action brought by a corporation, against such party, to recover back the damages it has been compelled to pay for his assumed neglect, it is competent for the defendant to show that he was under no obligation to keep the street in safe condition, and that it was not through his default that the accident happened.

6. In such case, if it appears that there was fault both on the part of the corporation and defendant, the former cannot recover