1787.
ting upon only two of them, cited, one, on one side of the question, and the other, on the other side, as they appear to me to be the most familiar to the present case, as to this point.
The first is the case of Frogmorton v. Holiday in 1 Black Rep. 535. and 3 Burr. 1618.—The will in that case began, as here, "As to all her worldly affairs and estate;’’ it is similar to it likewise in disposing of the residue of her personal estate, and not mentioning the realty, and also in containing a devise of another estate with words of inheritance. But there is an ingredient in that case, on which the greatest stress appears to have been laid by the Judges; which was, that, in the devise, the trustee charged the house and garden with the payment of fifty pounds out of the yearly rents and profits; the annual rent was ten pounds a year; the devisee was about seven years old at the death of his mother, and there was a direction that if the devisee should die in his minority then the house and garden should go to the testatrix's three daughters share and share alike.– Here, though the charge on the Profits, unconnected with other circumstances, would not have passed a fee, yet the Court said this was a middle case, and that the reason why this mode of payment was ordered, was apparently because the devisee was a minor, and the limitation over, if he should die before the age of 21, shewed the testator meant the heir should not have it; for, if the devisee was barely to take an estate for life the time of his death must be immaterial to the devisee over, but limiting it over, only upon the contingency of his dying in his minority, shewed that the testator intended to give him an absolute estate in fee, which he might dispose of when he came of age.—The implication was therefore thought by the Court to be necessary one, and the other parts on the will assisted the construction.
The case cited on the other sale as most material, is the case of Frogmorton v. Wright in 2 Blackst. R. 889.—There the will began, as here, "As to all my temporal estates," there were no words of inheritance in the particular devise, and there was a disposition of the residue of the personal estate only. There the Court said, though the probable intent of the testator was an absolute disposition, yet it is not a certain intent, nor is it a legal disposition.—In the report of the same case, in 3 Wils. 414. the whole will is set out, and it appears that there were two devises of lands to his different nephews, nearly in the same words, and several pecuniary bequests to his other nephews and nieces. The Chief Justice there says, it may seem probable that the testator's intention was than his nephew William should have a fee; but it is a clear rule of law that there must be express words or a necessary implication to disinherit the heir at law, and where neither of them appear, the legal operation of the words of the will must govern. In the case first mentioned, in 1 Blackstone, the Court say, there was a necessary implication, and, therefore, they determined it a fee: In the latter case, there was no necessary implication, therefore, they determined it only an estate for life.
The
