1813. MORRISON et al. V. SEMPLE et al. McDonald and Wilkins for the plaintiffs in error, argued that where words of description were used by a testator, a life estate passed; but where he used words denoting his whole interest, his whole estate passed: and that the terms all his real property, particularly when connected with terms embracing the personalty, were the strongest that could be used to denote all the testator's estate, right, and interest in the premises. They cited 2 Black. Comm. 1. 16. 198., 1 Cruise 1, 2., Hogan, v. Jackson (a), Blount's Law Dic. Property, Bayley's Dic. same, Jacobs'. Dic. same, Hopewell v. Acton (b), Lambert's Lessee v. Paine (c), Kennon v. MRoberts (d), Guthrie's Lessee v. Guthrie (e), Right v. Sidebotham (f), Bridgewater v. Bolton (g), Carter v. Horner (h), 1 Eq. Abr. 176. pl. 7., Id. 177. pl. 14., Ackland v. Ackland (i), 1 Eq. Abr. 177. pl. 15., Newkirk v. Newkirk (k), Yealt v. Sadler's heirs (1), Cowper v. Cowper (m), Bowes v. Blacket (n), 18 Vin. 73., Dingley v. Dingley (0), Devinish's Lessee v. Smith (p), French v. M'Ilhenny (9), Loveacres v. Blight (r), Davis v. Miller (s), Cook v. Gerrard (t), 8 Vin. 199. pl. 1., Taylor v. Webb (u). Mountain contra, did not deny the general principle for which the opposite counsel contended, but argued that "property" in this will denoted the thing devised, in the same manner as if the devise had been of all the testator's lands. He cited and relied on French v. M'Ilhenny, and Clayton v. Clayton (v). TILGHMAN C. J. Judgment was entered in this case, in the Court of Common Pleas, without argument and by consent, in order that it might be brought up for the opinion of this Court. The question is, whether an estate for life or in fee passed to Steele Semple by the will of Samuel Semple. The will is very short and in the following terms: (Here the Chief Justice read the will). The counsel for the defendant in error, placed this case in as strong a light as it 1813. et al. V. SEMPLE et al. would bear, but I have never entertained a doubt on the subject. In whatever point of view it is considered, I per- MORRISON ceive a plain intention with apt words to pass a fee simple. Here is a testator with an only child, (a daughter) who had a husband and two children. He makes no mention either of child or grandchild, but speaking of his son-in-law in the most affectionate manner, he gives him the whole of his real and personal property, and appoints him his sole executor. What can be concluded from this, but that the testator placing unbounded confidence in the husband intended to put every thing in his power. It is inconceivable that with any other intent, he should have observed a profound silence with respect to every other human being. It is a singular instance of confidence, but does not prove that the testator had no affection for his daughter or her issue. It proves that he was convinced of the honour and integrity of his son-in-law, and to an honourable and upright mind no obligation could be stronger than that which this will imposed. What is its language? "I place every thing that "is dear to me in your hands. The person and the fortune "of my child are confided to you. I know that you will "prove worthy of the trust." But it is said that intention alone is not sufficient. The heir is not to be disinherited without words sufficient to pass the estate to some other person. It is true that we are not permitted to guess at the intention; it must be ascertained from the words of the will. But if it can be so ascertained it shall be carried into effect. No technical words are necessary to pass a fee simple. Any expressions which show an intent to give an absolute estate are sufficient. A devise of land to one for ever, or, "to dispose of at his will and pleasure," is a fee; because there is a manifest intent to give a fee. So a devise of one's estate, or of all one's right or interest in land, passes a fee for the same reason. The rule is this: Words which only describe the object devised, give no more than an estate for life; but words which comprehend the quantum of the estate, pass the fee. And this rule is not founded on any artificial principle, but on the plain ground of common sense and fair construction. When a man gives all his estate, it is as much as to say, all the interest that he has in the subject devised. In the present instance the testator desigVOL. VI. N et al. V. SEMPLE et al. 1813. nates no particular object, but gives in general, all his real MORRISON and personal property. I can conceive no expressions more comprehensive. The giving of the real and personal property by the same words, shews an intent to give the same interest in both, that is to say an absolute interest, for no man ever doubted that those expressions give an absolute interest in personal property. Property signifies the right or interest which one has in land or chattels. In this sense it is used by the learned and unlearned, by men of all ranks and conditions. We find it so defined in dictionaries, and so understood by the best authors. The possession of land may be in one man, the property in another. There is a right of possession, and a right of property. Every scrivener who draws a conveyance, mentions not only the land itself, but also "the right, title, interest and property of the grantor “of, in, and to the same." In common conversation we say that such a house or piece of land is the property of such a person. When therefore a man devises all his real property, he devises all the right and interest which he has in any lands or real estate. If he has a right in fee simple a fee passes, otherwise the will is not complied with; for if the devisee takes but an estate for life, he does not take all but only part of the devisor's property. Many cases were cited on the argument. I think it unnecessary to take particular notice of any of them. It is a principle undeniable, that when the words of a will indicate an intention to pass the whole interest of the devisor, the devisee shall take a fee. Being clearly of opinion that such an intention is indicated by the expressions of this will, it follows that Steele Semple took an estate in fee in all the real estate of Samuel Semple. The judgment of the Court of Common Pleas must therefore be reversed, and judgment entered for the plaintiffs in error. YEATES J. absent in consequence of sickness. BRACKENRIDGE J. concurred with the Chief Justice.'" CAHILL against BENN and others. IN ERROR. 1813. Pittsburg, THIS was an ejectment in the Common Pleas of Indiana September 13. Verdict for the Court below. Afterwards mo other objected to county, in which the attorney of Benn and others, the plaintiff in the plaintiffs, below, in his præcipe for the summons, particu- Motion for a new larly described the land in controversy; the defendant trial, on which the judges were pleaded the statute plea of not guilty, and on this issue equally divided. the cause went to trial. A verdict being entered for the tion for judgment plaintiffs, the defendant moved for a new trial; and the for the plaintiff, two judges being Court being equally divided, the motion was held under present. One ordered judgment advisement. Afterwards the plaintiffs' counsel moved for to be entered, the judgment, and two judges being present, one ordered judg- the entry, wherement as a matter of course, and the other objected to the upon the clerk entered judg entry. The prothonotary entered judgment; and on the ment: Held that same day, the 14th of June 1813, execution was issued. this was a good judgment, this On the same day, likewise, a recognizance to prosecute a Court presuming writ of error was entered into, and made known to the ing judge intendplaintiffs; and on, the 15th of June about 10, A. M. the ed merely to writ of error issued. At 12, at noon of the 15th, possession was delivered under, the habere, and on the 16th about the regular course sunset, the writ of error was shewn to the Court of Com- of law, by prohibiting the prothomon Pleas, and the sheriff. The attorneys subsequently notary from agreed to abide by the opinion of Mr. Ross, upon the ques- entry." tion whether restitution ought to be made; and his opinion was in favour of restitution. that the dissent enter his dissent on the record, and not to arrest making a proper attornies in the Agreement of Court below, to abide by the opinion of a profes whether restituas tion of the premises should be a The points made in this Court by A. W. Foster for the sional gentleman, plaintiff in error, were: 1. That there was no judgment in upon the question the Court below. 2. That restitution should be ordered, well on the ground of law, that the writ of error was made to the supersedeas to the execution, as on the ground of the agree-From whom they plaintiff in error ment below, and Mr. Ross's opinion. 3. That there was had been taken by a habere error in the omission of the plaintiffs to file a description of facias, enforced the land, on or before the first day of the term to which by the court of the writ was returnable, according to the sixth section of If the precipe the act of 21st March 1806. Baldwin for the defendants in error. error. for a summons in ejectment, particularly describes the land in controversy, it is not necessary for the plaintiff to file another description of the land, according to the sixth section of the act of 21st March 1806. 1813. CAHILL V. BENN et al. On the first point, the Chief Justice delivered the opinion of the Court as follows: TILGHMAN C. J. At first view of this record there seems. some difficulty in saying whether a judgment has been entered or not. There were but two judges in Court. One directed the entry of the judgment, the other objected to it, but judgment was entered. In order to understand the meaning of this, it is necessary to consider the matter concerning which the Court differed. There had been a verdict for the plaintiffs, and a motion for a new trial, which was argued and held under advisement. It does not appear that any opinion was expressly given on this motion, but afterwards when the Court was moved for judgment, the judges were equally divided. There was no point on which they could differ, but on the motion for a new trial. It appears to us therefore that when Judge Campbell dissented from the direction of his brother judge to enter the judgment, it is to be considered as no more than an expression of his opi-" nion that the verdict ought to be set aside. The Court being equally divided on this point, judgment ought to have been entered. We cannot suppose that Judge Campbell meant to act with such impropriety as to arrest the regular course of law, by forbidding the prothonotary to make a proper entry. We rather think, that he wished his opinion against the verdict to be entered on the record, and to leave the rest to the law. Any other proceeding would have been highly improper, and we will not without necessity, suppose that Judge Campbell intended to do what was wrong. Undoubtedly a judgment is the act of the Court, and the prothonotary is no more than their agent in entering it. But under all the circumstances of this case, we understand that there was a verdict for the plaintiffs, and a difference be tween the judges concerning a new trial, and a judgment entered for the plaintiffs in consequence of the Court's being equally divided. It is unfortunate that our records are not made up with more precision. But in the state in which they are often presented to us, we consider it as our duty to construe them with the greatest liberality, and in such manner as will effectuate the true meaning without regard to form. |