In support of the rule to show cause why a new trial should not be granted in this case, it is insisted—
1st. That the devise to Eli Hendrickson of all the plantation
2d. That whether Oak island was or was not a part of the plantation devised to Eli Hendrickson and his heirs, was a question of fact, to be settled by evidence dehors the will as a latent ambiguity, by the verdict of a jury, and that the court had no legal right to determine it.
And 3d. That admitting the direct devise to Eli did not embrace the premises in question, yet that the last direction in the will carried an estate to Eli, by implication, in the disputed premises.
We will consider these questions in the order presented.
As Oak island is not expressly mentioned by the testator in his devise to Eli of the plantation whereon he lived, it became a question of fact, whether*it did or did not constitute a part of the plantation. For this purpose, parol evidence was properly introduced to show what was properly comprehended within the description of the estate devised. 3 Stark. 1695. This evidence, I think with the judge who tried the‘cause, clearly showed that Oak Island was no part of the plantation. It showed that it was not within the boundaries of the plantation, but at some distance from it; that it was not held by the same title; that it was never treated or spoken of by the testator as part of his plantation, and that in truth the testator had neither the possession of, nor the right of possession to it at the time of making his will or at the time of his death, but that it was held by the widow of his brother, as tenant in dower, and continued to be so held for eight or nine years after the testator’s death. This evidence, in connection with what appears on the face of the will, to wit, that the devise to Eli was made subject to a lease for twenty-one years from his decease, and the fact that his executors could make no such lease of Oak island, fully justified the judge in saying that this island was no part of the plantation, and thus did not pass by the direct devise to Eli. The court committed no error
It remains to be inquired whether, by the last clause of the will, Eli took an estate in Oak island by implication. An estate by devise in a will may pass by implication, without express words to direct its course. 2 Black. 281; 4 Kent’s Com. 525, 1st ed.; 1 Peere W. 472. But where implications are allowed, they must be such as are necessary, or at least highly probable, and not merely possible- implications. The familiar case to illustrate the principle is where an estate is devised to the heir after the death of the widow. If nothing else be said of the estate, it has been held that the heir cannot take it until the widow’s death, for it is the clear intention of the testator to postpone him until that time ; and as the estate can go no where else, the widow is said to be tenant for life by necessary implication.
Powell, in his treatise on devises, says it is a well known maxim, that an heir can only be disinherited by express devise or necessary implication, so strong that a contrary intention cannot be supposed ; that a devise to testator’s heir after the death 'of A. will give A. an estate for life by implication, but if the devise be to a stranger after the death of A. there is no such implication. This, he says, is a well settled rule, with numerous cases in support of it. 2 Pow. 199.
The general policy of the law and the leaning of courts is against the doctrine of implied estates under devises in wills, and Ivas tended rather to limit than extend it.
In the present case the devise over is to Andrew, one of the six children of the testator, on the contingency of Eli’s dying before the expiration of the lease referred to in the former part of the will. It is not a limitation over to the heir-at-law, but to one of the heirs-at-law. If Eli cannot take this property by implication in case he lived beyond the expiration of the lease, the question is, what was to become of it, according to the intention of the testator. He did not mean to die intestate in regard to it, for, in addition to his declaration in the introductory part of the will, that he means to dispose of such things as God has blessed him with, he makes distinct mention of these
The verdict must therefore, in my opinion, be set aside, and a new trial granted.