Doe, on the demise of Chamberlain v. Owings

GrasoN, J., delivered the opinion of the Court. The question presented for the consideration of this Court upon this appeal, arises upon the construction of that clause in the -will of John C. E. B. Boone, which is in the following words: “ I give unto my daughter, Eleanor Parlot Boone, one-half of all my household stuff, wagon and horses, and all cattle, together with all farming utensils; likewise, one-half of all and everything that shall fall to me, the said John C. E. B. Boone, at my mother, Sarah Boone’s decease.” The question to be determined is whether Eleanor Parlot Boone took a fee or a life estate in one-half of that land which had been devised by the will of Thomas Boone, to his wife, Sarah Boone, for life. In construing wills, the intention of the ⁴⁵⁴ testator, to be gathered from the whole will, is to prevail, if that can be accomplished 'consistently with the rules of law. “ The word heirs need not be used to create an estate in fee, nor any technical terms, nor any particular form of words; but any words sufficiently showing the intention of the testator to dispose of his whole interest in the thing devised, will have the same effect as a devise to one in fee-simple or forever, or any other words having the same import.” Dougherty, et al. vs. Monett’s Lessee, 5 G. & J., 461 . When the intention of the testator does not clearly appear from the words used in a clause of a will which is to be construed, then a resort may be had to the introductory clause, if there be one, to explain their meaning, and if, by it is manifested an intention upon the part of the testator, to dispose of the whole of his estate, the words in the clause to be construed, which otherwise would be of doubtful meaning, and consequently not sufficient to pass the fee, shall be taken in that sense which accords with the intention expressed in the introductory clause, and will pass the inheritance and give effect to all parts of the will.

Beall vs. Holmes, 6 H. & J., 210 . Looking to the introductory clause of the will now under consideration, it is perfectly manifest that the testator intended to dispose of his whole estate, and to die intestate of no part of it. That clause is in the following words: “ and as touching such worldly estate wherewith it hath pleased God to bless me in this life, I give, devise and dispose of the same in manner and form, followingshowing a clear intention to dispose of the whole of his estate. This being his intention, are the words used in the devise to Eleanor Parlot Boone, sufficient to pass the fee ?

It is well settled that the words “ estate ” and “ property ” used in a devise will carry the fee. Beall vs. Holmes, 6 H. & J., 208 , and the cases there cited. It has also been held that the words “ all I have,” “all I am worth,” “everything I die possessed of,” will pass the fee. Huxtep vs. Brooman, 1 Brown’s C. C., 437; Davenport vs. Coltman, 9 M. & Wels., 481.

Having the intention of ⁴⁵⁵ the testator plainly and clearly manifested in the introductory clause of the will, to dispose of his whole estate, the words “ all and everything,” are