Devise.

under the act of 28th February, 1803, is confined to cases of the voluntary discharge of seamen in a foreign port. Ibid.

24. An insurance was effected on the cargo of the Actress, from New York to New Orleans, and after she passed Havana she returned to that port on a plea of a deficiency of water, where, by order of the government, the cargo was landed, and put in the custom-house stores; the vessel not being permitted to depart with her cargo. The American consul sold the cargo: and the plaintiff claimed in this suit to recover the amount of the loss sustained by the sale. If the necessity produced by the want of water really and fairly existed, a sufficiency for the voyage being taken on board at New York, and Havana was the nearest port, a deviation was justifiable. Wood et al. v. The United States Ins. Co., 2 Wash. C. C. R. 301.

intention with reasonable certainty on the face of the will, for the law will not suffer the heir to be disinherited upon conjecture. Ibid.

6. Where the words of the devise admit of passing a greater interest than for life, courts will lay hold of an introductory clause, expressing an intention to dispose of the whole of the estate, to assist them in ascertaining the intention. But such clause will not so far attach itself to a subsequent devising clause as, per se, to enlarge the latter to a fee, where the words could not ordinarily import it. Ibid.

7. The words, "all the rest of my lands and tenements," &c., in this will, is not a residuary clause; but even if it were, they are not suffi cient to pass the fee without words of limitation superadded. Ibid.

8. After giving pecuniary legacies to his sis ters, the testator devises as follows: "I give to 25. What will be considered a deviation from my wife M. all the rest of my lands and tenethe voyage insured, and under what circum-ments whatsoever, whereof I shall die seised, stances a vessel may proceed to a port out of her direct course, and for what causes she may remain at such port, are stated in the case of Winthrop v. The Union Ins. Co., 2 Wash. C. C. R. 7. Coles v. The Marine Ins. Co., 3 Wash. C.

C. R. 159.

in possession, reversion or remainder, provided that she has no lawful issue. Item, I give to my wife Mary, whom I also make my sole executrix, all and singular my lands, messuages and tenements, by her freely to be possessed and enjoyed." After revoking all former wills, he 'makes A. B. executor of his will, "to take and see the same performed, according to its true intent and meaning; and for his pains"leaving the sentence unfinished. Mary, the 1. A devise of "all the estate called Marrow-wife, took an estate for life only. Lessee of Page bone, in the county of Henry, containing, by estimation, two thousand five hundred and eighty-five acres of land," carries the fee. Lambert's Lessee v. Paine, 3 Cranch, 97; 1 Cond. Rep. 466.

DEVISE.

2. J. P., by his last will, after certain pecuniary legacies, devised as follows: "Item, I give and bequeath unto my loving wife M. all the rest of my lands and tenements whatsoever, whereof I shall die seised, in possession, reversion or remainder, provided she has no lawful issue. Item, I give and bequeath unto my beloved wife, whom I likewise constitute, make and ordain my sole executrix of this my last will and testament, all and singular my lands, messuages and tenements, by her freely to be possessed and enjoyed," &c. The testator died seised without issue, and after his death the widow married one G. U., by whom she had lawful issue. Held, that she took only an estate for life, under the will of J. P. Wright v. Denn, ex dem. Page, 10 Wheat. 204; 6 Cond. Rep. 76. 3. Where there are no words of limitation to a devise, the general rule of law is, that the devisee takes an estate for life only; unless from the language there used, or from other parts of the will, there is a plain intention to give a larger estate. Ibid.

4. It must be a plain intention, because if it be doubtful or conjectural upon the terms of the will, or if full legal effect can be given to the language, without such an estate, the general rule prevails. Ibid.

5. It is not sufficient that the court may entertain a private belief that the testator intended a fee: it must see that he has expressed that

v. Wright, 4 Wash. C. C. R. 194.

9. The testator devised to his son Joseph Eden, certain portions of his estate in New York, among which were the premises sought to be recovered in this suit, to him, his heirs, executors and administrators forever. In like manner he devised to his son Medcef, his heirs and assigns, certain other portions of his property; and adds the following clause: "It is my will, and I do order and appoint, that if either of my said sons should depart this life without lawful issue, his share or part shall go to the survivor. And in case of both their deaths, without lawful issue, I give all the property aforesaid to my brother John Eden, of Lofters, in Cleaveland in Yorkshire, and my sister Hannah Johnson, of Whitby in Yorkshire, and their heirs." Medcef Eden died without issue, having devised his estate to his widow, and other devisees named in his will. According to the established law of New York, nothing passed under the ulterior devise over to John Eden and Hannah Johnson. Medcef Eden, on the death of his brother Joseph Eden, became seised of an estate in fee simple absolute. Waring v. Jackson et al., 1 Peters, 571.

10. Adverse possession taken and held under a sheriff's sale, by virtue of judgments and executions against Joseph Eden, will not, according to the decisions of the courts of New York, prevent the operation of a devise by another, in whom the title to the estate was vested by the death of the defendant in the execntions. Ibid.

11. The testator, residing and owning real and personal estate in the county of Alexandria, District of Columbia, by his will gave "all his

Devise.

Devise.

vided an alternative, which with the aid of the | strued, from the mere circumstance that the act of the legislature must remove every difficulty. Ingliss v. The Trustees of the Sailors' Snug Harbour, 3 Peters, 113.

15. In the case of "The Baptist Association v. Hart's Executors," 4 Wheat. 27, the court considered the bequest void for uncertainty as to the devisees, and the property vested in the next of kin, or was disposed of by some other 18. It is certainly well settled, that there are provisions of the will. If the testator in that no technical appropriate words which always case had bequeathed the property to the Baptist determine whether a devise be on a condition Association, on its becoming thereafter and precedent or subsequent. The same words have within a reasonable time incorporated, could been determined differently, and the question there be a doubt but that the subsequent incor- is always a question of intention. If the lanporation would have conferred on the associa-guage of the particular clause, or of the whole tion the capacity of taking and managing the fund? Ibid. 114.

Devise.

23. The testator's will was as follows: the will of B. G. contained the following clause: "also, I give to my wife Elizabeth Goodwin all my personal estate whatsoever and wheresoever, and of what nature, kind, and quality soever, after payment of my debts, legacies, and funeral expenses; which personal estate I give and bequeath unto my said wife, Elizabeth Goodwin, to and for her own use and disposal absolutely the remainder, after her decease, to be for the use of the said Jesse Goodwin," the son of the testator. Jesse Goodwin took a vested remainder in the personal estate, which came into possession after the death of Elizabeth Goodwin. Smith v. Bell, 6 Peters, 68.

of things, to be considered a trustee for the heirs | Elizabeth, wife of John Mitchell, and to their of the testator? This question cannot be decided issue." Upon the construction of the terms of in this cause it belongs to a court of chancery, this clause, it was decided by the supreme court and will be determined when the heirs shall in 3 Peters' Rep. 346, that William King, the bring a bill to enforce the execution of the trust. devisee, took the estate upon a condition subseIbid. 383. quent, and that it vested in him, (so far as not otherwise expressly disposed of by the will) immediately upon the death of the testator. William Trigg having died without ever having had any daughter born of his wife Rachel, the condition became impossible. All the children of William Trigg and Rachel his wife, and of James King and Elizabeth Mitchell, are married to other persons; and there has been no marriage between any of them, by which the devise over, upon the default of marriage of William King (the devisee) with a daughter of the Triggs, would take effect. The case was again brought before the court on an appeal by William King, in whom it had been decided the estate devised was vested in trust; and the court held, that William King did not take a beneficial estate in fee in the premises, but a resulting trust for the heirs at law of the testator. By the court:There is no doubt that the words "in trust," in a will, may be construed to create a use, if the intention of the testator, or the nature of the devise requires it. But the ordinary sense of the term is descriptive of a fiduciary estate or technical trust; and this sense ought to be retained until the other sense is clearly established to be that intended by the testator. In the present case, there are strong reasons for construing the words to be a technical trust. The devise looked to the issue of a person not then in being, and, of course, if such issue should come in esse, a long minority must follow. During this period, it was an object with the testator to uphold the estate in the father for the benefit of his issue; and this could be better accomplished by him as a trustee than as a guardian. If the estate to the issue was a use, it would vest the legal title in them, as soon as they came in esse; and if the first born children should be daughters, it would vest in them, subject to being divested by the subsequent birth of a son. A trust estate would far better provide for first contingencies than a legal estate. There is then no reason for deflecting the words from their ordinary meaning. King v. Mitchell et al., 8 Peters, 326.

24. The first and great rule in the exposition of wills, to which all rules must bend, is, that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law. This principle is generally asserted in the construction of every testamentary disposition. It is emphatically the will of the person who makes it, and is defined to be "the legal declaration of a man's intentions, which he wills to be performed after his death." These intentions are to be collected from his words, and ought to be carried into effect if they be consistent with law. lbid.

25. In the construction of ambiguous expressions, the situation of the parties may very properly be taken into view. The ties which connect the testator with his legatees, the affection subsisting between them, the motives which may reasonably be supposed to operate with him, and to influence him in the disposition of his property, are all entitled to consideration in expounding doubtful words, and ascertaining the meaning in which the testator used them. Ibid. 26. The rule that a remainder may be limited after a life estate in personal property, is as well settled as any other principle of our law. The attempt to create such limitations is not opposed by the policy of the law, or by any of its rules. If the intention to create such limitation is manifested in a will, the courts will sustain it. Ibid. 27. It is stated in many cases, that where there are two intents inconsistent with each other, that which is primary will control that which is secondary. Ibid.

28. William King, in his will, made the following devise: "In case of having no children, I then leave and bequeath all my real estate, at the death of my wife, to William King (the appellant), son of my brother James King, on condition of his marrying a daughter of William Trigg and my niece Rachel, his wife, lately Rachel Finlay, in trust for the eldest son or issue of said marriage; and in case such marriage should not take place, I leave and bequeath said estate to any child, giving preference to age, of said William and Rachel Trigg, that will marry a child of my brother, James King, or of sister

29. We are not permitted to enlarge the estate of a devisee, unless the words of the devise itself be sufficient for that purpose. Lambert's Lessee v. Paine, 3 Cranch, 97; 1 Cond. Rep. 466.

30. The words, "I give George Gilmer all the estate called Marrowbone, in the county of Henry," carry a fee. Ibid.

31. If a devise of land in Virginia, to the widow, appears from circumstances to be intended in lieu of dower, she must make her election, and cannot take both. Herbert et al. v. Wren et ux., 7 Cranch, 370; 2 Cond. Rep. 534.

32. A devise to A in fee, and if he shall die under the age of twenty-one years, and without issue, then to B in fee, is a good executory devise; and if B dies before the contingency occurs, it descends to his heir, and so from heir to heir until the contingency happens, when it

Devise.

vests absolutely in him only who can then make himself heir to B. Barnitz's Lessee v. Casey, 7 Cranch, 456; 2 Cond. Rep. 561.

33. And although A be the heir at law of B, yet the executory devise thus devolving upon him, is not merged in the precedent estate, but on the death of A devolves to the next heir of B. Ibid.

36. R. C., a citizen of Virginia, being seised of real property in that state, devised as follows: "In the first place, I give, devise, and bequeath unto J. L." and others, "all my estate, real and personal, of which I may die seised and possessed, in any part of America, in special trust, that the aforementioned persons, or such of them as may be living at my death, will sell my personal estate to the highest bidder, on two years' credit; and my real estate on one, two, and three years' credit, provided satisfactory security be given by bond and deed of trust. In the second place I give and bequeath to my brother T. C." an alien, "all the proceeds of my estate, real and personal, which I have herein directed to be sold, to be remitted to him accordingly as the payments are made; and I hereby declare J. L." and the other persons "to be my trustees and executors for the purposes aforementioned." T. C. though an alien, is entitled to the benefit of this bequest; it being personal estate, which he was capable of taking for his own benefit, though an alien. Craig v. Leslie et al., 3 Wheat. 563; 4 Cond. Rep. 331.

37. Equity considers land directed by wills or otherwise to be sold and converted into money as money; and money directed to be laid out in land, as land. Ibid.

34. Hare, in contemplation of marriage with Margaret Bryant, gave a bond for five thousand dollars, with interest, to trustees, to secure to B. a support during the marriage, and after the death of H., in case she should survive him; and to their child or children in case he should survive her; with condition that if Hare should, within the time of his life, or within one year after the marriage, whichsoever of said terms should first expire, convey to the trustee some good estate, real or personal, sufficient to secure the annual payment of three hundred dollars, for the separate use of his wife during the coverture, and also sufficient to secure the payment of the said five thousand dollars to her use, in case she should survive her husband, to be paid within six months after his death; and in case of her death first, to be paid to their child or children; or if he should first die, and by his will should, within a year from its date, make such devises and bequests as should be ade- 38. J. B. devised all his real estate to his son quate to these provisions, then the said bond B. and his heirs lawfully begotten, and in case should be void. Hare died, leaving his widow of his death, without such issue, he orders A. B. and a son, having by his last will devised a T. his executors and administrators, to sell the tract of one thousand acres in Mississippi to his real estate within two years after the son's son in fee, a tract of ten thousand acres in Ken- death; and he bequeaths the proceeds thereof, tucky equally between his wife and son, with a to his brothers and sisters by name and heirs for devise over to her in fee of the son's moiety if ever, or such of them as shall be living at the he died before he attained "the lawful age to death of J. B., jun., to be divided between them will it away;" and the residue of his estate, in equal proportions, share and share alike; all real and personal, to be equally divided between the brothers and sisters die leaving issue; then his wife and son, with the same contingent de- C. dies, and afterwards J. B. dies without issue. vise over to her. The value of the property Held, that the word heirs in the bequest of the thus devised to her, besides the contingent inte- proceeds of the sale of the real estate, was a rest, might have been estimated at H.'s death at word of limitation; and that as none of the brofive thousand dollars. B. subsequently died, thers and sisters were living at the death of J. having made a nuncupative will, by which she B., the devise to them could not take effect. devised all her estate "whether vested in her Held, that a sale made by the executors of C. by the will of her deceased husband, or other- after two years from the death of J. B., was not wise," to be divided between her son and the within the power conferred on them by the will, plaintiff, with a contingent devise of the whole was without authority and void. Daley's Lessee to the survivor. The son afterwards died, the v. James, 8 Wheat. 498; 5 Cond. Rep. 508. plaintiff brought his bill to charge the lands of 39. The power of A. T. and his executors and H. with the payment of the bond for five thou-administrators to sell may be executed by the sand dollars and interest, to which the plaintiff executor of the executor of A. T. Ibid. derived right under the nuncupative will. The 40. R. B. being seised of lands in Maryland, nuncupative will was insufficient to pass the executed three instruments of writing, each purlands in Kentucky, but sufficient to pass the per-porting to be his will. The first, dated October sonal estate, including the bond. Held, that the provision in the will of H. must be taken in satisfaction of the bond, but subject to the right to elect between them; and that this privilege passed to her devisee, the plaintiff. Hunter v. Bryant, 2 Wheat. 32; 4 Cond. Rep. 17.

35. Under the statute of wills in Virginia, it is necessary, in order that lands acquired after the date of the will may pass, that the intention of the testator should clearly appear upon the face of the will. Smith et al. v. Edrington, 8 Cranch, 66; 3 Cond. Rep. 35.

31, 1789, gave his whole estate, after pecuniary legacies, to his other nephews and nieces, to his nephew J. T. M. The second, dated July 16, 1800, gives his whole real estate to J. T. M. during his life, and after his death to his eldest son A. in tail, on condition of his changing his name to A. Barnes, with remainder to the heirs of his nephew J. T. M. lawfully begotten, for ever, on their changing their surname to Barnes. The third, without date, but proved to have been executed subsequently to the others, probably in 1803, after some small bequests proceeded: