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Opinion of the Court, per DAVIES, J.

said: “If I were asked my private opinion as to what this testator really meant when he made use of the word (effects), I must suppose that he meant that which his duty prescribed to him, to convey all his property for the maintenance of his family; but sitting in a court of law, I am not at liberty to collect his meaning from matter dehors, but only from the expression used on the face of the will.” LE BLANC, J., said: “If the court were at liberty to look into extrinsic circumstances, to the nature or comparative value of the real and personal property, or to the situation in which the testator stood with regard to his family, in order to see what disposition of his property he probably intended to make, they would undoubtedly be inclined to say that he must have intended to pass his real estate. But that would be a very dangerous rule to go by. The court seeks the construction in the words alone of the will.” There is no principle, therefore, upon which the words used in this will, "further sum,” can be construed as denoting an intention on the part of the testator “to devise all his real property.” They are inappropriately chosen to convey the idea of any such intention.

These words, as used, in reference to the context, show undisputably that they were intended to designate a sum of money, and not real property. The testator had been giving different “sums,” to be paid out of the moneys due to him, and then says, if there should be a further sum, I leave it to be divided, first among the parties named as legatees, pro rata, then for general charity, in the discretion of his executors. There was no direction or intent expressed in the will to convert any real estate into money. The word “sam,” as here used, could legitimately only refer to money. It is often used in wills, and always, as here, in such form as to indicate that it is used in reference to personal estate only.

Being clearly of the opinion that the bequest of a “further sum,” to be divided as directed by this will, does not denote any intention on the part of the testator to devise all his real property, we are restrained, as well by the positive declaration of our statute as the general rules applicable to the

Opinion of the Court, per DENIO, Ch. J.

rights secured to the heir-at-law, from giving such a construction to this will as to pass by it all the real estate of this testator which he was entitled to devise at the time of his death. The estate in controversy, acquired by him after the execution and publication of his will, consequently did not pass thereby, but descended to his heir-at-law.

The judgment of the Supreme Court should therefore be affirmed, with costs.

DENIO, Ch. J. I think it þighly probable that if the testator had been asked whether he expected his will to operate upon all the property of both kinds which he should own at the time of his death, he would have answered in the affirmative. Men not familiar with legal distinctions do not usually appreciate the rules which discriminate between the two kinds of property, and the intention of many testators is frustrated by the want of words charging legacies upon the real estate, where they fully designed that they should be paid, if he left sufficient means of any kind to pay them. We cannot, however, act upon a conjecture, however plausible. The question is, whether this testator has used language denoting with reasonable certainty his intent to devise all his real property, that is, all of such property as he should have at the time of his death. The statute contains only the first mentioned expression; and, no doubt, à devise of real estate, universal in its terms, would carry after-acquired lands, without any language pointing to the period of the testator's death. But where such unlimited terms are not used, there must be words in the will which will enable us to see that he intended it to operate upon real estate which he should afterwards purchase. Now, there is nothing in this will to that effect, unless it be that in which he declares that the appointment of the executors is for the final and full settlement of his estate, whether real or personal. If he had owned no real estate when he executed the will, I should think that the embracing of that term, when defining the scope of the powers of his executors, would, by great liberality of construction, subject after-acquired lands. But he did own other real estate, and devised

TIFFANY,- VOL. VI. 72

Opinion of the Court, per DENIO, Ch. J.

it to his niece. If that devise had been simple, vesting the estate immediately in possession and control, as well as in interest, so that his executors could have no duties to perform respecting it, the fact of its existence would not, perhaps, have any bearing on the question. But she was not to have the possession, or the uncontrolled disposition, of the rents and profits, until she should come of age. Those rents and profits were, during her minority, to be paid to her father or uncle, to be applied to her use and support. By whom were the rents and profits to be paid to the father or uncle? I think, by the executors; and I presume it was for that reason that they were authorized to appoint trustees, inasmuch as the land devised lay in a distant State. Then the land might be sold after her majority, and the proceeds take the place of the land. If the rule in Shelley’s case prevails in Alabama, she took a fee simple absolute, notwithstanding the devise to her heirs, and what is said about selling would be idle; whereas, if that rule is abolished, her heirs took an estate in remainder, with perhaps a power, by implication, in the executors to sell. But whatever may be the effect of this limitation on the power of the executors, we see enough in the disposition of the property to show that the testator might well have contemplated the agency of his executors in the final and full settlement of his estate in that Alabama property. I

agree that the reasons which have induced the English courts, in construing devises, to lean in favor of the heir, do not exist with the same force in this country, where we have no policy which favors the perpetuating of estates in a single male descendant; still, our law of descents points out the succession of real estate in the case of intestacy, and we have no right to break in upon the course of succession, unless we can see, satisfactorily and clearly, that the owner has appointed it differently.

I think the after-acquired land was not devised or subject to a power of sale for the payment of legacies; and that the judgment appealed from should be affirmed.

All the judges concurring, judgment affirmed.

Statement of case.

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42 Part 230 free linizu jou

HORACE HÜLETT and ALLEN P. HULETT, Respondents, v.

CHARLES W. SWIFT, Executor of Isaac Balding, deceased,
Appellant.

An innkeeper is an insurer of property, committed to his custody by a guest,

unless the loss be due to the culpable negligence or fraud of the guest, or to

the act of God or the public enemy. The rule that the landlord shall be held responsible for goods intrusted to him

for safe keeping by the traveler, and subject to detention for his charges, is

founded in considerations of public policy. The statute enables him to require the observance of appropriate precautions by

the guest; but it does not absolve him from his obligation to respond for losses caused by the negligence of himself or his servants, or by the depre

dations of knaves or marauders, within or without the curtilage. Held, accordingly, that the innkeeper is responsible for the loss of the goods

of his guest by fire, the cause of the fire being unknown, and the guest being free from negligence.

APPEAL from the Supreme Court. The action was for the value of property committed by.a guest to the charge of the defendant's testator, an innkeeper in Poughkeepsie, and lost by a fire, which destroyed the barn and stable attached to the inn, on the 26th of July, 1860.

The facts, as admitted by the pleadings and found by the . referee, were substantially these:

One Banks, an employee of the plaintiffs, stopped at the Balding House, in Poughkeepsie, with his own horses and wagon, and a load of buckskin goods belonging to the plaintiffs. He was received as a guest, and the innkeeper took charge of his property. A fire occurred in the course of the night, which occasioned a loss to Banks and the plaintiffs of $1,250.50.

It did not appear how the fire originated, and the defendant failed to show that it was not the result of negligence. The referee held that the plaintiffs, in their own right, and as the assignees of Banks, were entitled to the value of the property destroyed.

On appeal to the General Term of the fourth district, the judgment was affirmed, on the ground that the innkeeper is

Opinion of the Court, per PORTER, J.

an insurer of the goods of his guest while they remain in his custody. From that decision the defendant appealed.

John Thompson, for the appellant.
Wells & Dudley, for the respondents.

PORTER, J. An innkeeper is responsible for the safe keeping of property committed to his custody by a guest. He is an insurer against loss, unless caused by the negligence or fraud of the guest, or by the act of God or the public enemy. This liability is recognized in the common law as existing by the ancient custom of the realm; and the judges in Calye's case treated the recitals in the special writ for its enforcement, as controlling evidence of the nature and extent of the obligation imposed by law on the innkeeper. (8 Coke, 32; 1 Smith's Lead. Cas., Hare & Wallace's ed., 194, 307.)

This custom, like that in the kindred case of the common carrier, had its origin in considerations of public policy. It was essential to the interests of the realm, that every facility should be furnished for secure and convenient intercourse between different portions of the kingdom. The safeguards, of which the law gave assurance to the wayfarer, were akin to those which invested each English home with the legal security of a castle. The traveler was peculiarly exposed to depredation and fraud. He was coiopelled to repose confidence in a host, who was subject to constant temptation, and favored with peculiar opportunities, if he chose to betray his trust. The innkeeper was at liberty to fix his own compensation, and enforce summary payment. His lien, then as now, fastened upon the goods of his guest from the time they came to his custody. The care of the property was usually committed to servants, over whom the guest had no control, and who had no interest in its preservation, unless their employer was held responsible for its safety. In case of depredation by collusion, or of injury or destruction by neglect, the stranger would of necessity be at every possible disadvantage. He would be without the means either of proving guilt or detecting it. The witnesses to whom he

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