Henry Hammond vs. Nathan and Henrietta Hammond, 8 G. & J. 436

Chambers, Judge, delivered the opinion of the court. The word estate in a devise, will be descriptive of the subject of property, or the quantum of interest, according to the context. It will pass a fee whenever the intention of the testator does not restrict it to import a description, rather than an interest.

In pursuing the intention, we must regard all parts of the will, and the relation of the devisees to the testator, and to each other, and that purpose is to be received, as intended by the testator, which will most effectually carry into execution all the different provisions of the will, and make them consistent with each other. These are rules of construction familiar in theory, but often found difficult in their practical application. To these rules another, of great importance, has been added by our act of assembly, 1825, ch. 119.

It had often occurred that testators in making a disposition of their property, without professional aid, omitted words of limitation, in cases where from the relation of the parties and the entire failure to pass away any reversionary interest in the property, it was more than probable, the omission was occasioned by want of information, and not by design, and yet the court, whose duty it is to construe, not to make wills, were confined to the language of the will, as the index of the testator’s intention, and could not enlarge the interest of the devisee beyond a life estate.

Such a case, perhaps, was that of Beall vs. Holmes, 6 Har. and John. 205. The act of 1825, proposes a remedy for devisees in this condition. It assumes, that a testator may not know that terms of limitation are necessary, and directs, that if no words of perpetuity are added to the devise, it shall be intended that the whole estate and interest of the testator was designed to be passed; leaving that assumed intention, however, subject to be controlled by any evidence of a contrary intention, indicated by a devise over, by words of limitations, or otherwise.

It reverses the principle of law, which considered an estate for life to pass by a general devise, without words of limitation, or other words clearly indicative of an intention to pass a larger estate, and says a larger estate shall pass by such general devise without words of limitation, unless the will contain a devise over, or manifest by some other words, an intention not to pass more than an estate for life.

We think, in this case, the will does furnish evidence that the testator intended to devise to Henrietta Hammond a less estate than the whole interest or estate, in fee simple, of which he was seized; and, therefore, that the act of 1825 cannot in any respect influence the case. The devisee was the wife of the testator, entitled upon his death to a life estate, in one-third part of his real estate, and to an absolute interest in one-third of his personal estate, and we think the whole will manifests his knowledge of such her claims, and a design to insure to her the full enjoyment of her rights, and no more.

The whole of his real property, in the city of Annapolis, is devised to the two sons, Henry and Nathan, and the whole of the plantation in Broad Neck, is devised to the third son, with apt words to pass the fee.

These three devisees cannot take, according to the plain import of the devises to them, upon the' hypothesis assumed by the appellee, that is to say, they cannot take a fee simple in the whole, if the widow has a fee simple in a third; but they may take, pursuant to the devise, upon the concession, that she has a dower interest; that is to say, the sons take a fee simple in the whole property devised to them, subject to her dower. The residuary clause most impressively defines the sense in which the testator himself translated his former devise to his wife.

It does not, in form, devise or bequeath to her, a proportion of any other property he had or might have, but it assumes the interest she had in it to be her third. In common parlance, a wife’s third in her deceased husband’s estate, is the precise definition of dower; and the most familiar mode of recognizing the existing right of a widow to her dower is, to commence a devise with these expressions, after my wife’s thirds are taken out, I devise, &c. In this view of the residuary clause, it is not important, whether the testator had other real estate than that previously devised to his sons.

If he had, he clearly considered it incumbered with his wife’s dower, and designed it to pass by the residuary devise subject to that incumbrance. If he had none, it was no more than a prudent care to guard against the accident of omitting any portion, after an enumeration of all he could mention, but the same indication is furnished, that he considered it, should there be any subject thus to be encumbered, in virtue of his devise previously made.

By this construction we think every clause in the will is made to operate according to the plain obvious sense of the language of the testator; that consistency can be obtained, and a conflict avoided by no other construction, and that the intention of the testator, apparent upon the face of the will, requires it. DECREE REVERSED.