Hoxton's Lessee v. Gardiner

Opinion of Daniel Dulany, Esquire. The following case is stated to me for my opinion. ■ Ignatius Craycroft seised in fee thereof, devised as follows, the lands after mentioned, viz. “ Item, I give to my u son Charles Craycroft, and his heirs for ever, all that land, 81 &c. calledTruemarPs Place, lying in Charles County. Item, “ I give unto my said son Charles Craycroft, one other “ parcel of land called NutzvelPs Branches, &c. Item, I u give unto my said son Charles Craycroft, and his heirs, “ one hundred acres of land called the Denial,” &c.

The question is, what estate did the devisee take in the parcel of land, NutwelPs Branches ? The general rule laid down in the construction of wills, is to observe the intention and design of the testator, but it is also another rule, that the heir at law shall not be disinherited, but by plain words or implication. Notwithstanding the regard professed for the intention and design of the testator, there is great reason to believe that this design is contravened by the application of legal rules; of this a, great Chancellor was so sensible, that he declared he was in doubt whether he had not made as many wills by technical construction, as he had effectuated the intentions of the testator. ⁴⁵¹ In the present case, I am inclined to suspect that the testator meant the same estate in all the above devises ; but I must give my opinion, having regard to legal rules, and determinations thereon, that Charles Cray croft took only an estate for life, in the land called NutwelFs Branches. In the first and third devise, a fee was given, the proper words for that purpose, being inserted, viz. his heirs.

The argument on this head, is that the testator knew what were the proper words of inheritance, and accordingly used them, and therefore, when he