Leland v. Adams
75 Mass. 171
| Mass. | 1857
Metcalf, J.

The will of Mr. Boylston, having been made in the year 1826, before a new rule for the construction of devises of land was prescribed by the Rev. Sts. c. 62, § 4, must be construed by the rules of law which were in force when it was made. And we are all of opinion that by that will, so construed, Mr. Adams took a fee in the premises demanded in this writ. As we view the devise to him, its meaning and effect are the same as they would have been if the words of it had been arranged thus: “ I give and devise all my lands and tene*175ments in Weston, in the county of Middlesex, Massachusetts, with the privileges and appurtenances to the same belonging, containing four hundred acres, be the same more or less, which were formerly the estate of Lt. Gov. Gill, and which estate I now devise in token of respect for the devisee.” We view the second sentence in this devise, as it stands in the will, not as introduced incidentally after the devising part was perfected, (as in Doe v. White, 1 Exch. 535,) but as an operative part of the devise. In that sentence, the devisor expressly repeats the devise of the “ estate ” which, in the first sentence, he devised by the words “ lands and tenements.” Both must be taken together.

The word “ estate,” in a devise, has repeatedly been held sufficient to give a fee, if the devisor had a fee, although the word is accompanied by words of locality, (as in this case,) or other expressions exclusively referable to the corpus of the property. Doe v. Lawton, 6 Scott, 318, and 4 Bing. N. C. 461. In Randall v. Tuchin, 2 Marsh. 117, Chief Justice Gibbs thus states the law on this subject: “ It is admitted very properly, that the word 1 estate ’ or ‘ estates ’ will carry a fee, unless the other parts of the will restrain the effects of it. Formerly, a narrower construction prevailed, and it was held that if the word ‘ estate ’ were attended by words designating the thing devised, or its situation, it was to be considered not as descriptive of the interest intended to be passed, but only of the lands themselves which were the subject of the devise. Latterly, however, a more liberal construction has been adopted; and the word ‘ estate,’ though it be followed by words which point at the situation, or at the particular house or land, has been held to convey a fee simple. It may be restrained; it may be shown by other parts of the will, that the testator has used the word 6 estate,’ as descriptive only of the thing devised, and not of the interest meant to be conveyed; but then it lies on the party who contends for this narrow construction, to show that there are such words of restraint in the will.” In this case of Randall v, Tuchin, which is reported also in 6 Taunt. 410, C., after devising several dwelling-houses to T., (particularly describing them,) *176added these words: “ All which estates, being copyhold of the manor of Kennington, I devise to T. for life, and, after his decease, to his son M.” It was decided that M. took an estate in fee in the copyhold. So in Roe v. Bacon, 4 M. & S. 366, B. devised to his wife thus : “ All and singular my freehold lands, messuages and tenements at T. & H., or elsewhere, together with all my household goods, cattle,” &c. “ for her natural life, and after her decease, then all the said estates, goods,” &c. “ to be divided among my sons, T., J., H. and P., and my son-in-law C., share and share alike.” Lord Ellenborough and his associates decided that the sons took a fee, after the death of the wife. In Uthwatt v. Bryant, 6 Taunt. 317, and 2 Marsh. 30, A. devised all his freehold lands, tenements, hereditaments and premises in the parish of B. to certain persons for life, with remainders over, and on the happening of a certain event, devised his said freehold estate in the parish of B. to his daughters, as tenants in common, and if they should die in the lifetime of his wife, then he devised all his said freehold estate in the parish of B. to his wife and her heirs forever. Chief Justice Gibbs and his associates certified their opinion to the Vice Chancellor, that the daughters took a fee. These cases are decisive that the word “ estate,” even when used in a will as a word of reference, will carry a fee, unless other parts of the will show that such was not the testator’s intention. In the present case, the whole will clearly tends to show that Mr. Boylston intended to give the Weston lands to Mr. Adams in fee. But we place our decision on the grounds and authorities above mentioned, without seek ing other reasons in confirmation of it.

Judgment for the tenant.