Jackson ex dem. Harris v. Harris

Spencer, J.

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 " *146 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 *147 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.