12 R.I. 483 | R.I. | 1880
The will of the late Honorable Richard W. Greene, deceased, contains the following devise, to wit:
"I give and devise to my nephew, Henry Ward Greene, my undivided half of the Potowomut Mill and mill privilege and the land and dwelling-house occupied as a part of said mill estate; but this devise is subject to this express condition, that he is not to raise nor suffer to be raised the dam of said mill privilege to a greater height than its present height, and in case of such raising of said dam his title to said undivided half of said mill and mill privilege, land and dwelling-house, shall be forfeited and become null and void."
The testator had an estate in fee simple in the property devised. The question submitted to us is, Did Henry Ward Greene take an estate in fee simple under the will, subject to the condition therein expressed, or only a life estate? We think he took a *484
fee, for, the testator's undivided half being a fee, it follows logically that a devise of his undivided half is a devise of a fee. If the estate is for life only, it is so for the technical reason that the devise is without words of inheritance. But it is well settled that words of inheritance are not necessary in a will to pass a fee, if an intent to pass it is otherwise evinced. Thus, a devise of "all my estate," or of "my estate,"will pass a fee, if the testator has it, whether the devise be general or with words of locality. Leland et al. v. Adams, 9 Gray, 171;Arnold v. Lincoln,
It is contended that an intent to devise only a life estate may be inferred from the structure of the clause devising the estate, and from other parts of the will. We think the indications referred to are too insignificant and uncertain to affect the construction. *485 Our decision is, that Henry Ward Greene takes an estate in fee simple, subject to the condition expressed in the will.
We have reached our conclusion without recourse to Gen. Stat. R.I. cap. 171, § 5,1 and therefore, without finding it necessary to determine whether that statute, which went into effect after the will was executed, though before the testator died, is applicable as a rule of construction for the will. The question is one on which there is some conflict of authority. On the side that it is applicable, see Cushing v. Aylwin, 12 Met. 169; Pray v. Waterson, 12 Met. 262; Winchester v.Forster, 3 Cush. 366, 371; Loveren v. Lamprey,