Jackson ex dem. Harris v. Harris — 8 Johns. 141

Majority

p. 141

Jackson, ex dem. Harris, against Margaret Harris.

Headnote

M by his last will,, devised as follows: « As touching such worldly estate wherewith it hath pleased God to bless me, I give, devise, and dispose of the same, in the following manner and form: First, Í give to Jeremiah, my eldest son, 40 pounds, to be levied om. of my estate; to my son Jacob 40 pounds, &ce.; to my daughter E. 5 dollars, cíe. to my youngest son James, 1 give and bequeath a certain lot, &c. Also, to niy beloved son Henry, I give and bequeath all this certain lot of land which 1 now possess, with the farming utensils,” he. and added, “ all these legacies before mentioned, to be paid on the first of May, 1805, and hi be raised and levied out of my estate,” and then appointed his son Henry and another person his executors. It was held, that Henry took an estate for life only, it being contingent whither the devisee would he chargeable with the payment of the legacies»

THIS was an action of ejectment, tried before Mr. ... i .. Justice Spencer, at the Schenectady, circuit, the 24th Oc

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tober, 1810, when a verdict was taken for the plaintiff, , . , .... . r ,, . subject to the opinion or tue court, on the following case

Ebenezer Harris, who died seised of the premises’in ■ question, by his last will, dated the 12th March, 1800, devised as follows : “ as touching such worldly estate, wherewith it has pleased God to bless me in this life, I give, devise, and dispose of the same, in the follow.ng manner and form: First, I give to Jeremiah, my eldest son, 40 pounds, &c. to be levied out of my estate. Also, I give to my son Jacob 40 pounds, to be raised out of my estate, &c. and my daughter Elizabeth 5 dollars. Also, to Polly I give 30 pounds, &c. Also, to Phœbe I give 30 pounds, &c. Also, to my youngest son James, I give and bequeath one certain lot of ground, being part of lot No. 139. &c. Also, to my beloved son Henry I give and bequeath all this certain lot of land, which I now possess, and is known by No. 136. together with the farming utensils', &c. Further, I give Henry a good bed, &c.; to Henry, Polly and Phœbe, all the household furniture, &c. All these several legacies before mentioned, is to be paid the 1st day of May, 1805, all of which is to be raised and levied out of my estate; and also, I do appoint John Victory, and Henry Harris, my executors,” &c.

It was proved, by one of the executors, that all the debts and legacies were paid out of the personal estate, which was appraised in the inventory at 1,071 dollars, and the debts and legacies amounted to 509 dollars and 36 cents.

Henry Harris, the devisee named in the will of Ebenezer harris, died, after making his. will, dated 16th March, 1810; and after giving several legacies to be raised out of his estate, he devised as follows : “ and the rest of my estate, after paying my debts and the several legacies, I give to my beloved wife Margaret.” Margaret Harris, the defendant, has been in possession of the pre

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mises since the death of her husband Henry Harris, and claims to hold adversely to the lessors, who are the children and grandchildren of Ebenezer Harris.

7. B. Tates, for the plaintiff,

contended, that~ Henry Harris, by the words of the will of Ebenezer Harris, took no more than an estate for life. The words" I give to my beloved son Henry all that certain lot," ~tc. are not of themselves sufficient to pass an estate im fee. Then, do the introductory words give them a greater extent? But the introductory words must be connected with the devising clause, to aid or explain it.^[11] But even if the prefatory words are connected with the subsequent clause, they will have no effect unless there be some ambiguity in the deviseS It has been repeatedly decided. that the introductory words themselves are not sufficient to carry a fee.^[8] The case of Frogmorton v. Wrigh^[9] is perfectly analogous; and Lord Chief Justice De Grey said, that words such as are used in this will, were never determined to carry a fee; that the words are merely descriptive of the locality, not of the quantity of the estate.

It may, perhaps, be said, that the legacies were charge~ able on the real estate devised. But there are no words in the will which make them a charge on the real estate. Even if the real estate was intended, yet the devisee will not take a fee, unless the real estate devised be specifically charged.^[10]

It will be objected, that the parol evidence to show that the personal estate was sufficient to pay all the debts and legacies, was inadmissible. In Doe v. Bucknel,^[5] it seems to have been regarded as admissible, and Lord Ken yon considered it as perfectly satisfactory, though not th~ g~ ound of the decision in that case; and such appears to have been the opinion in the case of lifoore V. Frice.^[6]

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Henry and Van Vechten, contra.

The testator sets out, in the usual words, denoting an intention to pass all his estate, real as well as personal. He then gives several legacies, chargeable on his estate, and then other legacies, and fixes a time for their payment, and declares that they are to be raised out of his estate.

Parol evidence to show that the personal estate only was intended to be charged with the debts and legacies, is clearly inadmissible. In Ulrich v. Litchfield,^[11] Lord Hardwicke said, that there were only two cases in which parol evidence could be admitted in the construction of a will; first, to ascertain the person, where there are two of the same name ; and second, to rebut a resulting trust. These are cases of a latent ambiguity. But there is no such ambiguity here. A man’s whole estate compre ■ hends the real as well as personal; and any parol evidence to confine the meaning to personal estate would contradict the will. Admitting that there was personal estate sufficient to pay all the debts and legacies, it does not follow that it was the intention of the testator that the personal estate should be exclusively applied to that purpose.

Then, we contend, that the devise to Henry Harris passed a fee by necessary implication, the legacies being in gross, payable on a certain day, out of the whole estate, and not out of the profits.' Though the introductory words cannot control the devise, yet they may be received, in explanation, of the intention.^[8] Appointing-the devisee executor, shows an intention that the land should be sold for the payment of the legacies. The words “ all these legacies are to be raised and levied out of my estate,” are as strong as a devise of lands to pay debts.^[9] This point was expressly decided in Jackson, ex dem. Decker and others, v. Merrill,^[10] in this court. The charge is on the whole estate, which includes real as well as personal. The court cannot confine it exclusively to the

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personal estate.^[11] It is enough if the devisee might, by-possibility, be injured, if the estate was not construed to he a fee.

delivered the opinion of the court. The lessors of the plaintiff are the heirs at law of Ebenezer Harris, and claim as such. The defence set up is, that E. Harris devised the premises in question to Henry Harris, and that he devised them to the defendant.

The question, then, between the parties, turns on the will of E. Harris, and whether under it, Henry Harris took an estate for life, or an estate in fee-simple. It has been contended, on the part of the defendant, that Henry took a fee under the will, 1st, in consequence of the charge on the real estate devised ; and, 2d, by the words in the introductory part of his will, by which he evinces an intention to make an entire disposition of his estate.

It appears to be well settled, that the declaration of an Intention to dispose of an estate, u in manner and form following,” or such like words, will not carry a fee. The declared intention has, sometimes, been called in aid to ascertain the quantity and extent of the devise, but has never been adjudged sufficient to determine the quantity of interest which the devisee took. (Cowp. 660. 3 Burr. 1618. 3 Wils. 141. and 414. 11 East, 220.)

The will gives the premises by these words ; “ also to my beloved son Henry Harris, I give and bequeath all this certain lot of land, which J now possess, and is known by No. 136. together with all my farming utensils, and likewise the stock belonging to my estate then, after some specific legacies, are these words, “ all these several legacies before mentioned, is to be paid the first day of May, 1805, all of which is to be raised and levied out of my estateE The residuum of the tegtatorV "

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personal property is not disposed of, and he makes Hen- „ : , , , . ry Hams and another person has executors.

Some stress was placed on the word “ all” in the devise of the premises to Henry. To show that such a. word is to tie taken as descriptive of locality and not of interest, the cases of Bailis v. Gale, (2 Ves. jun. 48. 4 Cruise’s Dig. 249.) and Right v. Sidebotham, (Doug. 759.) are in point.

In deciding this case, we do not think it necessary to examine and pronounce on the difference between the effect of a charge on the person of the devisee, in consequence of the devise, and a charge on the estate devised; there is some subtilty in the distinctions on.this subject. But we are of opinion that Henry Harris took only a life estate in the lands devised, on the principle, that it was contingent whether the devisee ever would be chargeable with the payment of the legacies; and thqfc to carry a fee by implication, it is necessary that the charge should be absolute and certain.

The charge here is on the testator’s estate generally; and it imports his property, his estate, as well personal as real. If the personalty was sufficient to pay the legacies, that fund must be first resorted to; for it is the natural and legal fund for the payment of debts and legacies. The leading case which decides that a contin-' gent charge on a real estate will not carry a fee, is that of, Merson v. Blackmore. (2 Atk. 341.) The master of the rolls, in giving his opinion, said, “ where a gross sum is to be paid out of the lands, to be sure, it gives a fee to the devisee of those lands. But here, the debts are not, at all events, charged on the real estate, but only contingently, if the personal estate should be deficient, and therefore does not come up to the cases cited, of a gross sum to be paid out of land, and consequently gives no more than aa estate for life.” The very point arose in Doe v. Allen. (8 Term Rep. 497.) The decision of the master of the rolls in Merson v. Blackmore was cited

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and sanctioned by the court. The case of Doe v. Snelling (5 East, 87.) does not overrule the cases last cited, but proceeds on a different principle.

We give no opinion as to the admissibility of the pa¡rol proof, going to show that the executors took a personal estate more than sufficient to pay off all the debts and legacies, as it is not necessary to the decision of the cause.

The plaintiff must have judgment.