Page:United States Reports, Volume 1.djvu/238

Rh 

1787.

upon only two of them, cited, one, on one fide of the queftion, and the other, on the other fide, as they appear to me to be the moft familiar to the prefent cafe, as to this point.

The firft is the cafe of Frogmorton v. Holiday in 1 Black Rep.  535. and 3 Burr. 1618.–The will in that cafe began, as here, ‘‘ As to all her wordly affairs and eftate ;’’ it is fimilar to it likewife in difpofing of the refidue of her perfonal eftate, and not mentioning the realty, and alfo in containing a devife of another eftate with words of inheritance. But there is an ingredient in that cafe, on which the greatest ftrefs appears to have been laid by the Judges ; which was, that, in the devife, the truftee charged the houfe and garden with the payment of fifty pounds out of the yearly rents and profits ; the annual rent was ten pounds a year ; the devifee was about feven years old at the death of his mother, and there was a direction that if the devifee fhould die in his minority then the houfe and garden fhould go to the teftarix's three daughters fhare and fhare alike.– Here, though the charge on the Proʃits, unconnected with other circumftances, would not have paffed a fee, yet the Court faid this was a middle cafe, and that the reafon why this mode of payment was ordered, was apparently becaufe the devifee was a minor, and the limitation over, if he fhoufl die before the age of 21, fhewed the teftator meant the heir fhould not have it ; for, if the devifee was barely to take an eftate for life  the time of his death muft be immaterial  to the devifee over, but limiting it over, only upon the contingency of his dying in his minority, fhewed that the teftator intended to give him an abfolute eftate in fee, which he might difpofe of when he came of age.–The implication was therefore thought by the Court to be neceffary one, and the other parts on the will  the conftruction.

The cafe cited on the other fale as moft material, is the cafe of Frogmorton v. Wright in 2 ''Blackʃt. R. 889.– There the will began, as here, “ As to all my temporal eftates,” there were no words of inheritance in the particular devife, and there was a difpofition of the refidue of the perfonal eftate only.  There the Court faid, though the probable intent of the teftator was an abfolute difpofition, yet it is not a certain intent, nor is it a legal difpofition.– In the report of the fame cafe, in 3 Wils.'' 414. the whole will is fet out, and it appears that there were two devifes of lands to his different nephews, nearly in the fame words, and feveral pecuniary bequefts to his other nephews and nieces. The Chief Juftice there fays, it may feem probable that the teftator's intention was than his nephew William fhould have a fee ; but it is a clear rule of law that there muft be exprefs words or a neceʃʃary implication to difinherit the heir at law, and where neither of them app he legal operation of the words of the will muft govern. In the cafe firft mentioned, in 1 Blackʃtone, the Court fay, there was a neceʃʃary implication, and, therefore, they determined it a fee : In the latter cafe, there was no neceffary implication, therefore, they determined it only an eftate for life. The