Opinion
(Fall Riding, 1801.)
Where a testator, after giving a life estate in his plantation to his wife, devised as follows: "I give to my oldest sons, R. and D., my plantation, etc., 320 acres on the river to R., and 320 acres to D., and they to put to school my two youngest sons, and to school them at their charge," it was held that the charge being such that the devisees would sustain a loss by paying it, supposing them to have only a life estate, they should therefore take a fee; particularly as the testator by giving his wife an estate for life showed that he knew how to limit a life estate when he intended it.
EJECTMENT. The plaintiff derived his title from the will of Jonathan Evans, who devised as follows: "I give and bequeath to my two eldest sons, Reece and David, my plantation, etc., 320 acres on the river to Reece, and 320 acres to David; and they to put to school my two youngest sons, and to school them at their charge."
The plaintiff's counsel contended that Reece and David took as joint tenants for life, and as David died first, the whole life estate went by survivorship to Reece, who was the eldest son of their father, and that on his death the estate in fee descended to Jonathan, the eldest son of Reece, and heir at law of the devisor. It was stated in evidence that David died in 1781. Reece died in 1785, leaving a son, Jonathan, who took possession after Reece's death, by putting his stock of hogs and cattle on the land. Jonathan was an infant for many years after Reece's death; the remaining brothers of Reece, and uncles of Jonathan, sold to defendant James, in 1795. They never claimed title before, nor were they at any time in possession, nor was any person in possession but Jonathan, until James, the defendant, entered in 1795. An action was brought in 1796. David left a daughter in ventre sa mere, who was born four months after his death, and died in 1796. There were two other sons of old Jonathan.
Jocelyn for plaintiff: The devisees, Reece and David, were joint tenants. 12 Mo., 302; 1 Salk., 390.2d. The devisees took an estate for life. Only the charge of schooling the two youngest sons is not such an one as will create a fee where otherwise the words would make an estate for life only. Schooling is an annual charge; it is not a sum in gross, for it might be more or less according to future circumstances, as the death of the children, etc.
Wright, e contra: The devisees took estates in severalty. All estates are so unless expressly made otherwise; no such expression is here; on the contrary, Reece is to hold 320 acres on the river, which is a particular designation of the spot intended for him; and the (153) remainder, of consequence, falls to David. They have no unity of possession so asserted to a joint tenancy. 12 Mo., 320, and 1 Salk., 390, support the position laid down by us when compared with the words of our will. Besides, the construction of deeds and of wills is materially different. The one is construed most strictly against the grantor, the other according to the intent of the testator. That was in our case most evidently to create an estate in severalty or at least in common. As to the next question, this is an estate in fee in the devisees. The charge is not expressed to be payable out of the profits. It is expressly said at their own charge.
Let the jury give a special verdict. [They did so, and afterwards he delivered his opinion.] If the charge is such that the devisee may sustain a loss by paying it, supposing him to have a life estate only, he shall in such case take a fee. Especially in a case like this, where, intending an estate for life to the mother, he expressly limits a life estate, which shows he knew how to limit for life when he intended it.
NOTE. — By the act of 1784 (1 Rev. Stat., ch. 122, sec. 10), passed subsequent to the date of the above will, all devises are to be construed to be in fee simple, unless otherwise plainly expressed.