Page:Federal Reporter, 1st Series, Volume 10.djvu/731

 YOUNQ V. DUNN. ���719 ���The letler given in full herein has been duly prob^ted as Caldwell's will; and the question is whether that letter, as the will of Caldwell, conveys the legal title of the lands in controversy to Colville. Goun- sel claim that the intention to eonvey is apparent, and that the rule is that the intention must govern if not contrary to law. �I concede the law, but I do not find in the will any intention ex- pressed by Caldwell, in teohnical or uutechnical language, to eonvey or bequeath anything but his own share of certain company or part- nership property, and that share is bequeathed to Colville for life, remainder to Mrs. McFarland. There is no general bequest or uni- versal legacy in the instrument. The balance of the will is merely the declaration of a trust in the testator and in Colville, of company property, and does not imply or express any desire or intention to eonvey or bequeath such company property to any person whatever. But giving it the effect of a conveyance or bequest, then it is in its broadest sense a conveyance or bequegt to the partnership, and Colville, as a partner, took only an equitable title. For a case in direct point s&e Glagett v. Kilburne, 1 Black, 346. The whole letter was, probably, only designed by the writer to furnish Colville evi- dence of the partnership, and the extent of the partnership property ; at least, that is a fair inference from the total absence of all the words usual even among the most ignorant when attempting to make a will, and Caldwell was not an ignorant man. �The case would be stronger if plaintiffs were suing for Caldwell's hair of the tract ; for the life estate of that is, perhaps, conveyed by the letter or will to Colville. �Counsel claim that if the will does not make a legal title for plaintiffs, then, as it declares ownership in Colville of the undivided half of the tract in question, that it in some way operates so that plaintifEs can maintain legal title by estoppel. �I cannot see how the defendant is estopped by the declaration of a stranger. The defendant does not claim or prove any title undor either Caldwell or Colville, or anybody else. But if she is estopped, that does not help us out of the difSculty, which is that the plaintiff must recover, if at all, on a legal title suffieiently proved. �As to the railroad company, either an answer has been filed, in which case no judgment by defaiilt can be rendered, nor any other judgment for plaintiffs, as they have failed to prove title ; or no an- swer has been filed, and the company is in default, in which case I can render no judgment against, the company, as there is no ^aiver of jury on its behalf. ��� �