were divided upon the question whether the words, "all my effects," could pass a remainder in fee, the majority of the court, Pollock, Ch. B., and Parke, B., (Platt, B., dissenting,) held that they did not.

23. It may be proper here briefly to allude to some few of the American cases upon this general question. They have, in the main, followed, or professed to follow, the English cases, but with an increasing tendency to extend the force and operation of general terms. In New York the expression, "my property, after my debts are paid, I leave and bequeath to my beloved wife, and wish her to educate my daughters"; with nothing in the will to import a different intent, was held to express an intention to pass the whole interest of the testator and give the fee.57 The word "property " will in general carry a fee.58

24. In Massachusetts it seems to be well settled that the general words" estate," "property," in a will, carry real estate, and that they are not to be limited to personalty, unless "there are qualifying words, or these terms are so connected and mixed with words expressing only things personal, as to limit their meaning. In Bullard v. Goffe,59 the will contained these words, "I do hereby give and bequeath to B all the residue of my furniture and estate, whatever or wherever it may be," and it was held not to pass the real estate, the will being wholly upon the subject of personalty, and there being no general decla

99 59

Jackson v. Housel, 17 Johns. 281. See Wheaton v. Andress, 23 Wend. 452. See also Ferguson v. Zepp, 4 Wash. C. C. 645; Dowdel v. Hamm, 2 Watts, 61; Harper v. Blean, 3 Watts, 471.

"Fogg v. Clark, 1 N. H. R. 163; Morrison v. Sample, 6 Binn. 94. But the import of the term may be restricted to personalty by its manner of use, or by circumstances. Brown v. Dysinger, 1 Rawle, 408. A term is a chattel and passes as personalty. Brewster v. Hill, 1 N. H. R. 350. A devise of all the testator's "rights" in the woods of another, conveys a fee, if the devisor had one. Newkerk v. Newkerk, 2 Caines, 345.

Shaw, Ch. J., in Hunt v. Hunt, 4 Gray, 190, 193, citing Bullard v. Goffe, 20 Pick. 252.

ration of intention to dispose of all the property of the testator, and there remaining articles of furniture and personal property not specifically disposed of in the will. But a devise of all one's estate, after payment of debts and legacies, passes a fee in lands, although the devisee is appointed executor, and the debts and legacies are not charged on him personally.60

25. And the same rule prevails in Connecticut, and it is believed in most of the American states. In the last case cited the testator devised real estate to A, in trust for B and her heirs, and it was held that B took an equitable fee which she might dispose of by will.

26. A devise of all my goods and effects, real and personal, will carry a fee-simple in real estate.62 And in the state of Maine, where it is apparent a fee was intended to pass, words of inheritance will be supplied.63

SECTION V.

WHAT WORDS IN A WILL ARE SUFFICIENT TO CREATE A FEE. RULE IN SHELLY'S CASE.

1. A general devise of real estate will only convey an estate for life.

2. Such a rule of construction defeats the intent of the testator. English and some American statutes restore it.

3. The rule in Shelly's Case as applied to devises has led one side of the truth generally.

4. Any charge upon the devisee will convert the estate into a fee.

Kellogg v. Blair, 6 Met. 322; Godfrey v. Humphrey, 18 Pick. 537; Tracy v. Kilborn, 3 Cush. 557.

61 Korn v. Cutler, 26 Conn. R. 4; where the devise was "of all my estate." 2 Ferguson v. Zepp, 4 Wash. C. C. 645.

63 Butler v. Little, 3 Greenl. 239; S. P. Cook v. Holmes, 11 Mass. R. 528. Where the words were added to a general devise of real estate to the testator's widow," to be at her disposal," it was held to carry a fee. Jackson v. Babcock, 12 Johns. 389, 393. And any words conveying such intent will be sufficient. Lillard v. Robinson, 3 Litt. 415.

5. But if the charge be upon the land merely, it will not have that effect.

6. Life-estates and annuities considered in this connection.

7. A devise over will often enlarge the general devise.

8. But the devise over being general will carry a life-estate, thus defeating the general estate pro tanto.

9. And where a codicil revokes a devise in fee, and devises same estate generally, it creates only a life-estate.

10. In trust estates, a fee given either to trustee, or cestui que trust, will make the other a fee.

11. Any form of expression showing such intention will pass a fee.

12. The courts seize any plausible excuse to rescue particular cases from the general rule.

13. The word "estate," whether connected with locality or not, will pass a fee. 14. The distinction between the word "estate as descriptive of the corpus, and

of the title, not regarded.

15. The court incline to refer the word estate to the title.

16. The fact that the word is associated with locality and used with express limitation in other places, will not vary effect.

17. The devise of the rents of an estate will pass the fee.

18. But these general words, "estate," "property," &c., must form the pivot of the

devise.

19. It is said the word "estate" in the introductory clause of the will has no effect.

20. The word " estate" allowed to pass a fee whenever it can fairly receive that

construction.

21. But if it occur in the description of the life-estate only, will not have that effect.

22. The force of the word "estate may be qualified in other portions of the will.

23. The word "estate" will be restricted to a life-estate, where it would otherwise cut off other estates.

24. The terms, "property" and "real effects" construed the same as estate." 25. Enumeration of many words which will, and some which will not, pass a fee. 26. The word reversion will pass a fee, but not the words "residue and remainder" in a residuary devise.

27. Devise of all "right," "title," or "interest," or of the testator's "moiety," or "part," or "share," will pass a fee.

28. An exception, condition, or qualification of the devise, may show that a fee was

meant.

29. Devise of "advowson," " manor," and "share," will pass a fee.

30. Devise of property in tail, not liable to such devise, passes a conditional fee.

31. The present English statute presumes a fee intended, unless the contrary ap

pear. Commentary.

32. The American cases upon both parts of this chapter presented together.

33. To convert a general devise into a fee, there must be a charge upon the devisee

or something else.

34. Devise to executors to sell and pay the avails to devisee creates fee in them. 35. Devise over, without words of inheritance, carries only life-estate.

36. What kind of charge upon the devisee will give a fee by implication.

37. The Revised Statutes of New York convert a general devise into a fee. 38. The general rules of the common law upon this subject prevail in Massachu

setts.

39. In North Carolina the operation of general words in a devise is greatly re

stricted.

40. A devise will be construed to carry such an estate as is requisite for the object.

41. The effect of using words of entailment, in regard to personalty, to create an absolute title.

42. Illustration of the rule by the cases in Pennsylvania.

43. Discussion of the rule in Shelly's Case, as applied in America.

n. 119. Discussion of the question in two cases in Vermont.

44. Statement of the decisions in Connecticut upon this point.

45. The rule qualified in Pennsylvania by the courts, and in New York by statute. 46. The Connecticut courts favor the construction of general devises giving a fee. 47. General devise of uncultivated lands will carry fee. Effect of devise to the heir.

48. The word "estate," in America, held a word of the greatest extension.

49. Statement of other cases confirming the general rules before stated.

50. The word "appurtenances," or a condition, may carry a fee.

51. A bequest of personalty absolutely to one, and then in remainder to another,

gives only a life-interest to the first.

52. Other cases illustrating the same question.

53. Prefatory words in a will may aid the construction of other words, but are inoperative in themselves.

54. Clear life-estate in personalty enlarged by absolute power of disposition.

55. Estate may be given in trust to an insolvent son, for the benefit of his children at his death.

56. General intent may create an estate in fee, without words of limitation. 57. Where the income of the residue is directed to be paid testator's children, and the corpus divided among grandchildren, if any, it creates a fee-simple in the children.

58. But where an aliquot portion of the whole estate is so devised, the first devisee takes only a life-estate.

59. Where the word "heirs is used with reference to the devisee a fee passes, unless clearly controlled.

60. But where the devise gives a power of sale, if devised without consideration, it will defeat the estate over.

61. In Ohio the devise of "the plantation on which I now live," will carry a fee. 62. In Massachusetts the word "estate " will carry a fee.

63. Devise of farm, or the proceeds of its salc, creates a legacy to the amount for which the testator sold the farm.

§ 68. 1. It seems to be entirely well settled in the English courts, as a general rule, that the devise of real estate, merely describing the property, without defining the interest which the devisee shall take, will only give an estate for life. And it will make no difference that the will contains an express declaration of disposing of all the testator's property, or that a small bequest is made to the heir with a view to cut him off. And it will make no difference that the will contains an antecedent devise for life to the heir, or that the devise is to a class, embracing the heir, as the testator's children,5 or that the same property is devised to the same person in fee, in another event. And the fact that in other portions of the will, or in the immediate context, there may be devises for life, thus showing that testator meant something different by such general devise, will make no difference in the construction. And the same rule holds as to estate held pur autre vie, where the heir would have been special occupant.8

1

Taylor v. Hodges, cit. in 3 Ch. Rep. 87; Canning v. Canning, Moore, 242; Deacon v. Marsh, Moore, 594; Bullock v. Bullock, 8 Vin. Ab. 238, pl. 10; Roe d. v. Holmes, 2 Wils. 80; Doe d. v. Blackett, Cowp. 235; 353; Doe d. v. White, 1 Exch. 526.

2

Denn v. Gaskin, 2 Cowp. 657; Right v. Sidebotham, 2 Doug. 759; Frogmortin v. Kershaw, 3 Wils. 414; s. c. 2 W. B. 889; Doe d. v. Wright, 8 T. R. 64; Doe v. Child, 4 B. & P. 335; Doe d. v. Allen, 8 T. R. 497; Doe d. v. Ravell, 2 Cr. & J. 617.

Denn v. Gaskin, 2 Cow. 657; Roe d. v. Bolton, 2 W. Bl. 1045; Right v. Sidebotham, 2 Doug. 759; Roe d. v. Daw, 3 M. & Sel. 518.

Awse v. Melhuish, 1 Br. C. C. 519; Right v. Compton, 9 East, 267. Dickins v. Marshal, Cro. Eliz. 330; Bowen v. Scowcroft, 2 Y. & C. 640; Harding v. Roberts, 10 Exch. 819.

Goodtitle v. Edmonds, 7 T. R. 635; Doe d. v. Clarke, 5 B. & P. 343; Doe d. v. Eve, 5 Ad. & Ell. 317; Silvey v. Howard, 6 Ad. & Ell. 253; Matthews v. Windross, 2 Kay & J. 406.

Doe d. v. Robinson, 8 B. & Cr. 296. Sir E. Sugden, in Allen v. Allen, 2 Dr. & War. 307, 327; 2 Jarman, 248.