Saylor against Kocher, 3 Watts & Serg. 163

The opinion of the Court was delivered by Gibson, C. J. In Denn v. Kemys, (9 East 375), it was certainly supposed that freehold may pass by the name of leasehold where there is no other property to answer the description; and the same principle was applied in Knotsford v. Gardiner, (2 Atk. 450), to the word estate, which, though it properly comprehends only freehold, was thought to pass leasehold because there was nothing else for its operation.

Now, beside the admitted fact that the testator had no other real estate than that which is the subject of the present contest, there is enough on the face of the will to designate it as the subject of this devise. He begins by giving to his wife what he calls her residence on the, premises “ in which he then dwelt,” with an annual allowance for her maintenance out of the produce of the farm, and also particular articles of household furniture.

He then devises to his two sons, George and Edward, subject to the payment of certain legacies, all his leasehold estate “ of and in all those messuages situate in the aforesaid township and county.” What messuages ? Certainly those of which he had just then been speaking by the name of the premises in which he dwelt. He knew just as much, and no more, of the technical import of the word leasehold, as he did of the technical import of the word messuages, which was supposed by him to include, not only the houses on the farm, but the farm itself.

Can it be doubted, then, that the devise has regard to this land; or that he intended to pass the fee, when it is considered that the devisees were burthened with the payment of legacies ? The word leasehold is sufficient to pass a fee where the intent is clear; and here it was used as matter of false description evidently, because the devisor’s son George was farming the land under a contract with his father in the nature of a lease. The father therefore spoke of the land as leasehold in relation to George’s interest in it, and not his own.

As we have a case of clear intention, then, and words sufficiently apt, we are able to pronounce, without straining a principle, that the devisees took a fee. Judgment affirmed.