1787.
Busby verſus Busby.
T
HIS was a caſe ſtated for the opinion of the Court. It was argued on the 11th inſtant by Sergeant on the one ſide; and Lewis and Levy on the other. This day the Preſident repeated the caſe, and delivered opinion of the Court as follows.
Shippen, Preſident.– The queſtion ariſes upon the will of Thomas Buſby, whether the deviſe to his wife of a certain piece of land there in mentioned, paſſes a fee ſimple, or an eſtate for life only.—There are no words of limitation in the deviſe; 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 teſtator to paſs a fee. The intention of the teſtator is ſaid to be the pole ſtood to guide the conſtruction of wills.–But there are two qualifications to this rule; 1st That this intention muſt not claſh with the rules of law; and 2dly that where legal technical terms are wanting, the intention, to ſupply them, muſt be clear and manifeſt from the words and expreſſions in the will.
The will beings with theſe words ; “And as to what wordly “eſtate I am bleſſed with, I diſpoſe of as followeth”– There are three deviſes which relate to the real eſtate: Firſt, a deviſe to his “ſon Iſaac Butſly of the houſe and plantation where the teſtator then “dwelt, with all the appurteninces thereunto belonging, to have, “and to hold unto the ſaid Iſaac Buſby his Heirs and Aſſigns for ever, “he paying his brother ten pounds a year during his natural life.” The ſecond deviſe is to his wife of the land now in diſpute, in theſe words: “I give, deviſe, and bequeath, unto my wife Mary, a certain piece of land bounding on William Buſby &c. Alſo I give my ſaid wife one third of ſuch moveable eſtate as ſhall be remaining after the payment of my debts and funeral expences, and ſuch legacies as are herein after given, which ſhall be in lieu of her dower or thirds of my eſtate.” – And the third and laſt diſpoſition of his land is a direction, that his houſe and land by the mill ſhould be ſold by his executor.
The word “Eſtate” in a will; connected with a deviſe, as where a man gives all the reſidue of his eſtate, or gives his Eſtate in ſuch a place, will paſs a fee ſimple without words of inheritance; becauſe it ſhall be intended that he meant to give the whole eſtate which he himſelf had, both as to quantity and quality. The words, “As to all my wordly eſtate,” in the beginning of the will, unconnected with any particular deviſe, ſhew an intention to diſpoſe of his whole eſtate, but will not carry an eſtate that is clearly omitted; but if it be dubious whether it be omitted or not, it will help the interpretation. There are many caſes in the law books of will beginning with theſe words: I ſhall content myſelf with animadver-
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