1787.
BUSBY verʃus BUSBY.
T
HIS was a cafe ftated for the opinion of the Court. It was argued on the 11th inftant by Sergeant on the one fide ; and Lewis and Levy on the other. This day the Prefident repeated the cafe, and delivered opinion of the Court as follows.
SHIPPEN, Preʃident.– The queftion arifes upon the will of Thomas Buʃby, whether the devife to his wife of a certain piece of land there in mentioned, paffes a fee fimple, or an eftate for life only.–There are no words of limitation in the devife ; 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 teftator to pafs a fee. The intention of the teftator is faid to be the pole ftood to guide the conftruction of wills.–But there are two qualifications to this rule ; and 2dly that where legal technical terms are wanting, the intention, to fupply them, muft be clear and manifeft from the words and expreffions in the will.
The will beings with thefe words ; ‘‘ And as to what wordly
‘‘eftate I am bleffed with, I dipofed of as followeth’’– There are three devifes which relate to the real eftate :Firʃt, a devife to his
‘‘ fon Iʃaac Butʃly of the houfe and plantation where the teftator then
‘‘ dwelt, with all the appurteninces thereunto belonging, to have,
‘‘ and to hold unto the faid Iʃaac Buʃby his Heirs and Aʃʃigns for ever,
‘‘he paying his brother ten pounds a year during his natural life.’’ The ʃecond devife is to his wife of the land now in difpute, in thefe words: ‘‘ I give, devife, and bequeath, unto my wife Mary, a cert
‘‘tain piece of land bounding on William Buʃby &c. Alfo I give my
‘‘faid wife one third of fuch moveable eftate as fhall be remaining
‘‘ after the payment of my debts and funeral expences, and fuch le
‘‘gacies as are herein after given, which fhall be in lieu oƒ her dower or
‘‘thirds of my eftate.’’ – And the third and laft difpofition of his land is a direction, that his houfe and land by the mill fhould be fold by his executor.
The word “Eftate” in a will ; connected with a devife, as where a man gives all the refidue of his eftate, or gives his Eʃtate in fuch a place, will pafs a fee fimple without words of inheritance ; becaufe it fhall be intended that he meant to give the whole eftate which he himfelf had, both as to quantity and quality. The words, “ As to all my wordly eftate,” in the beginning of the will, unconnected with any particular devife, fhew an intention to difpofe of his whole eftate, but will not carry an eftate that is clearly omitted ; but if it be dubious whether it be omitted or not, it will help the interpretation. There are many cafes in the law books of will beginning with thefe words : I fhall content myfelf with animadver-
