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LESSEE

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PAINE.

LAMBERT'S of Bolton. 1 Vez. 228, Goodwin v. Goodwin. Ca. Temp. Talbot, 284, Tanner v. Morse. 3 P. Will. 295, Tanner v. Wyse. 2 Vern. 690, Beachcroft v. Beachcroft, and Ca. 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 Ca. Eq. Ab. 211, p. 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. and Pul. 247, the words of the will were, "First, I give and devise unto my kinsman, Nicholas Lister, all that my customary or copyhold 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 hereditaments, either freehold or copyhold, whatsoever or wheresoever, and also all my goods, chattels, and personal estate, of what nature or kind soever, after payment

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of my just debts and funeral expenses, I give, devise LAMBERT'S 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.

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, § 5, and 286, § 3, that a person born in the plantations may inherit lands in England; and 2 Tucker's edition of Bl. Com. appendix, 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 of holding those which they already possessed.*

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

There is a difference in the effect of the word estate, when used in the preamble of a will, or in the residuary

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 ?

Mason. That clause relates only to personal estate. The word 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.

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.

LAMBERT'S clause, and when used in a specific devise. LESSEE in the devising clause, it always carries the est of the testator in the thing devised.

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When used whole inter

An argument has been drawn from the manner in which the two other estates are described; and it is said that because they are not called estates, but tracts of land, the devise clearly gives only a life-estate in those two tracts, and therefore it is to be presumed that the testator only meant to give a life-estate in the Marrowbone tract; because he has coupled them all together by the words "likewise" and " also."

But we say that he meant to give the fee of all the tracts to George Gilmer, and that the words are sufficiently large to carry that intention into effect.

In the case of Cole v. Rawlinson, 1 Salk. 234, the words of the devise were, "I give, ratify and confirm, all my estate, right, title and interest, which I now have, and all the term and terms of years which I now have, or may have in my power to dispose of after my death, in whatever I hold by lease from Sir John Freeman, and also the house called the Bell Tavern, to John Billingsley," and it was adjudged that the fee of the Bell Tavern passed, by force of the words " and also," which caused the preposition "in" to be understood, so as to read "and also in the Bell Tavern." So, in the present case, the three specific objects of the devise are connected by the words "likewise" and "also," and you must apply the first part of the devising clause to each subject, and read`it thus: "likewise I give and bequeath unto Doctor George Gilmer, of Albemarle county, all the estate in one other tract of land called Horse-pasture." The word "likewise" shows that he meant to give the same interest in the two other tracts, which he had given in Marrowbone.

Upon the question of alienage, he contended, that by the common law, every man is an alien to that government under whose allegiance he was not born. The capacity to inherit results from the fact that the heir and ancestor both owe allegiance to the sovereign of the country where the lands lie. The right of inheritance is

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derived only through one common sovereign. The alle- LAMBERT'S giance due to that sovereign is the commune vinculum which connects the heir with his ancestor as to the tenure of lands. This common allegiance must exist at the time of the birth of the heir, and continue unbroken till the time of the descent. If this allegiance is not to be confined to the sovereign of the country where the lands lie, it would follow, that where the ancestor and heir were both natural born subjects of a foreign state, (for instance, subjects of France) and the ancestor should be naturalized in this country, and become a purchaser of lands here, the heir, although not naturalized, would still have a right to inherit those lands, because they both owed allegiance to France, their common and natural sovereign.

The American antenati may inherit lands in England, because the ancestor and heir both owed a common allegiance to the sovereign of that country, where the lands lie. But the British antenati never owed allegiance to the government of this country, and, therefore, the British heir cannot inherit the American lands of his American ancestor.

If, then, the capacity to inherit depends upon a com mon allegiance to the sovereign of that country where the lands are, it will follow, that when that common allegiance ceases to exist, the capacity to inherit must cease also. The common allegiance to the sovereign of this country ceased by the declaration of independence, or, at least, when that independence was acknowledged by the king of Great Britain, at the treaty of peace, whereby he assented to the withdrawing our allegiance; and the principle of the common law, that natural allegiance must be perpetual, is not so rigid, but that it may be shaken off with the assent of the sove reign to whom it was due. For in 1 H. H. P. C. 68, Lord Hale says, " that though there may be due from the same person, subordinate allegiances," "yet there cannot, or, at least, should not, be two or more co-ordi nate absolute allegiances, by one person, to several in. dependent or absolute princes; for that lawful prince that hath the prior obligation of allegiance from his subject, cannot lose that interest without his own con

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LAMEERT's sent, by his subject's resigning himself to the subjec tion of another; and hence it is, that the natural born subject of one prince, cannot, by swearing allegiance to another prince, put off or discharge him from that natural allegiance; for this natural allegiance was intrinsic and primitive, and antecedent to the other, and cannot be divested without the concurrent act of that prince to whom it was first due. Indeed, the subject of a prince, to whom he owes allegiance, may entangle himself, by his absolute subjecting himself to another prince, which may bring him into great straits; but he cannot, by such a subjection, divest the right of subjection and allegiance that he first owed to his lawful prince."

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Hence, it is clearly the opinion of Lord Hale, that natural allegiance may be divested and dissolved, with the concurrent act of that prince to whom it was due ; and by a note of the editor, in the same page, it seems that the doctrine of perpetual allegiance, refers only to a private subject's swearing allegiance to a foreign prince, and has no relation to a national withdrawing of allegiance.

If the American revolution is to be considered as such a national withdrawing of allegiance, then that withdrawing was complete and perfect, even before the assent of the king of England was obtained, and the American antenati are as totally absolved from all allegiance to the British king, as if they had been natural born aliens.

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There being, then, no common allegiance between the British and the American antenati, at the time of the descent cast, there can be no capacity to inherit the one to the other, even were it not necessary that the common allegiance should be to the sovereign of the country where the lands lie.

Lord Hale, also, in the same page, shows in what sense Lord Coke, in Calvin's case, and Bracton before him, have used the expression, "ad fidem utriusque regis." He says, "it appears by Bracton, that there were very many that had been antiently ad fidem regis

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