Busby v. Busby

The question arises upon the will of Thomas Busby, whether the devise to his wife of a certain piece of land therein mentioned, passes a fee simple, or an estate for life only. There are no words of limitation in the devise ; but, it is contended, that in the introductory part of the will, and by the whole will taken together, it was the clear intention of the testater to pass a fee. The intention of the testator is said to be the pole star to guide the construction of wills. But there are two qualifications to this rule : 1st. That this intention must not clash with the rules of law ; and 2d. That where legal technical terms are wanting, the intention, to supply them, must be clear and manifest from the words and expressions in the will.

The will begins with these words ; “And as to what worldly estate I am blessed with, I dispose of as followeth.” There are three devises which relate to the real estate : first, a devise to his son Isaac Busby of the house and plantation where the testator then dwelt, with all the appurtenances there

The word “ estate ” in a will, connected with a devise, as where a man gives all the residue of his estate, or gives his estate in such a place, will pass a fee-simple, without words of inheritance ; because it shall be intended, that he meant to give the whole estate which he himself had, both as to quantity and quality. The words, “ as to all my worldly estate,” in the beginning of the will, unconnected with any particular devise, show an intention to dispose of his whole estate, but will not carry an estate that is clearly omitted ; but if it be dubious whether it be omitted or not, it' will help the interpretation. There are many cases in the law-books of wills beginning with these words. I shall content myself with animadverting *upon only two of them, cited one on one side of the question, and the -* other on the other side, as they appear to me to be the most similar to the j>resent case as to this point.

The first is the case of Frogmorton v. Holiday, in 1 W. Black. 535, and 3 Burr. 1618 The will in that case began, as here, “as to all her worldly affairs and estate ;” it is similar to it likewise, in disposing of the residue of her personal estate, and not mentioning the realty, and also in containing a devise of another estate with words of inheritance. But there is an ingredient in that case, on which the greatest stress appears to have been laid by the judges ; which was, that, in the devise, the trustee charged the house and garden with the ¡payment of fifty pounds out of the yearly rents and profits ; the annual rent was ten pounds a year ; the devisee was about seven years old, at the death of his mother, and there was a direction that if the devisee should die in his minority, then the house and garden should go to the testatrix’s three daughters share and share alike. Here, though the charge on the profits, unconnected with other circumstances, would not have passed a fee, yet the court said this was a middle case, and that the reason why this mode of payment was ordered, was apparently, because the devisee was a minor, and the limitation over, if he should die before the age o.f twenty-one, showed the testator meant the heir should not have it; for, if the devisee was barely to take an estate for life, the time of his death must be immaterial to the devise over ; but limiting it over, only upon the contingency of his dying in his minority, showed that the testator intended to give him an absolute estate in fee, which he might dispose of, when he came of age. The implication was, therefore, thought by the court to be a necessary one, and the other parts of the will assisted the construction.