Argument for Appellants.

196 U. S.

and the other devisees by the will of H. McCaffrey, whether an estate for life or in fee simple. This suit was brought "to have it determined what estate each of the said devisees took thereby, and to have their title quieted as against any person or persons who may claim adversely to the same as heirs of said Hugh McCaffrey, or under such heirs."

It was decreed by the trial court that only life estates were devised by the will, and the decree was affirmed by the Court of Appeals. 22 App. D. C. 385.

Mr. Arthur A. Birney, with whom Mr. O. B. Hallam and Mr. Henry F. Woodard were on the brief, for appellants:

In McCaffrey v. Little, 20 App. D. C. 116, the main question herein was before the court but not decided. Mrs. Quigley took a fee simple. Collier's Case, 6 Coke, 16; King v. Ackerman, 2 Black, 408; Doe v. Holmes, 8 Dunf. & East, 1; Sharswood's Blackstone, citing Goodlittle v. Maddern, 7 East. 500; Doe v. Clarke, 8 New Rep. 349; Roe v. Dan, 3 Man. & Sel. 522; Baddeley v. Leapingwell, Wilm. Notes, 235. The Court of Appeals held that because the proofs taken by appellees showed that out of the personal estate bequeathed to Mrs. Quigley "a large surplus must necessarily remain to her after the discharge of all possible demands and expenses," the charge should be construed as upon the personal estate and not the person. But the court had no right to look beyond the face. of the will in determining its construction, and should have rejected the testimony as wholly incompetent to diminish the estate which the fact of the personal charge defined as created in Mrs. Quigley by the terms of the devise. The court cited no authority for its reception of this evidence and ignored authoritative decisions in doing so. King v. Ackerman, 2 Black, 408; Barber v. Pittsburg &c. Railway, 166 U. S. 109; Allen v. Allen, 18 How. 385; West v. Fitz, 109 Illinois, 438; Powell on Devises, Jarman, § 379; 2 Jarman on Wills.

If the limited construction of the several devises to life estates only is declared, it must result that the testator,

196 U.S.

Argument for Appellees.

Hugh McCaffrey, died intestate as to the remainder after the expiration of the life estates, for there is no residuary devise, or other language to dispose of the remainders. It is unreasonable to suppose that this was the testator's intention. Kennedy v. Alexander, 21 App. D. C. 424; Hardenburgh v. Ray, 151 U. S. 112; Abbott v. Essex Co., 18 How. 202. The other devisees took fee simples also.

Where from the fact of such condition in one of several devises, it is manifest the testator intended to pass a fee in such devise, the fact that in the others he has used similar terms (although without attaching conditions), will, in the absence of words of contrary import, establish a like intent in those other devises, and the beneficiaries will take in fee. Cases cited supra and Cook v. Holmes, 11 Massachusetts, 529; Butler v. Butler, 2 Mackey, 96, 104; White v. Creushaw, 5 Mackey, 113.

Mr. Edwin Forrest and Mr. A. A. Hoehling, Jr., for appellees: A devise without words of limitation or inheritance passes only a life estate. The authorities sustaining it are uniform in every jurisdiction, and the same rule of decision obtains in the District of Columbia, with the exception only of cases coming within the provisions of the Code, of which, however, the case at bar is not one. 2 Jarman on Wills, 267; 2 Redfield on Wills, 321; Farrar v. Ayres, 5 Pick. 404; McAleer v. Schneider, 2 App. D. C. 461; McCaffrey v. Little, 20 App. D. C. 116; Wright v. Denn, 10 Wheat. 204, 236. And this is so notwithstanding the testator in the will may have declared an intention to dispose of his whole estate, although here there is absolutely no expression by testator of any intention to dispose by will of his entire estate in the property, nor does he attempt to dispose by will of his entire property.

The Quigley devise cannot be enlarged by legal implication to a fee. The directions to her were not a charge upon her devise. Buggens v. Yeates, 8 Vin. Abr. 72; 1 Jarman on Wills, 387; Wright v. Denn, 10 Wheat. 204, 236; Jackson v. Harris,

8 Johnson, 142; Burlingham v. Belding, 21 Wend. 463; Turnbake v. Parker, 2 MacA. 444; Moor v. Mellor, 5 Durnf. & East. 284; S. C., 1 Bos. & Pul. 558; S. C., 2 Bos. & Pul. 247, 253. Even if the Quigley devise is so enlarged the other devises in the will are not aided thereby.

MR. JUSTICE MCKENNA, after stating the case, delivered the opinion of the court.

It will be observed that the devises are expressed in exactly the same way. To Mary A. Quigley, however, there are given several pieces of real estate, the money of the testator in bank and his building association stock. She is charged with the payment of the testator's funeral expenses and debts; also with the care of his cemetery lot. Nevertheless, neither of the lower courts distinguished between the devisees to all was applied the rule of law that a devise of land without words of limitation or description gives a life estate only. The Court of Appeals held that the charge or burden upon Mary A. Quigley to pay the funeral expenses and debts of the testator was offset by the gift to her of personal property. It is insisted that the ruling is contrary to the decision in King v. Ackerman, 2 Black, 408. It is there said: "The rule of law which gives a fee, where the devisee is charged with a sum of money, is a technical dominant rule, and intended to defeat the effect" of the artificial rule established in favor of the heir at law, that an indefinite devise of land passes nothing but a life estate. It was, however, apparent to the Court of Appeals that, to follow King v. Ackerman, would not execute the intention of the testator by opposing one technical rule by another, but would discriminate between his heirs and destroy the equality between them which it was the purpose of the will to create. To effect this equality the court selected, not the "dominant rule," whose virtue this court pointed out, but the other, regarding it the most commanding. It is altogether a strange tangle of technicalities. Apply either of them, or both

of them, and we defeat the intention of the testator. Are we reduced to this dilemma? We think not; nor need we dispute the full strength of the rule in favor of the heir at law. It is not an unyielding declaration of law. It cannot be applied when the intention of the testator is made plain. It cannot be applied when the purpose of the testator, as seen in the will, cannot be carried out by a devise of a less estate than the fee. Bell County v. Alexander, 22 Texas, 350. The policy of the law in favor of the heir yields, we repeat, to the intention of a testator if clearly expressed or manifested. That policy, the reason for it and the elements of it, is expressed strongly by Mr. Justice Story in Wright v. Denn ex dem. Page, 10 Wheat. 204, 227, 228:

"Where there are no words of limitation to a devise, the general rule of law is, that the devisee takes an estate for life only, unless, from the language there used, or from other parts of the will, there is a plain intention to give a larger estate, we say, a plain intention, because, if it be doubtful or conjectural, upon the terms of the will, or if full legal effect can be given to the language, without such an estate, the general rule prevails. It is not sufficient, that the court may entertain a private belief that the testator intended a fee; it must see that he has expressed that intention, with reasonable certainty, on the face of his will. For the law will not suffer the heir to be disinherited upon conjecture. He is favored by its policy; and though the testator may disinherit him, yet the law will execute that intention only when it is put in a clear and unambiguous shape." (Italics ours.)

estate.

We think the intention of McCaffrey is "put in a clear and unambiguous shape." He intended to dispose of his whole It is true there is no introductory clause expressing such intention, but there is no residuary clause indicating that he intended to pass less than all of his estate. And all of his heirs at law were his devisees. In other words, the very heirs for whom the rule is invoked are those among whom he distributed his property, and surely he intended a

complete distribution-to vest in each the largest interest he could give, not assigning life estates with residuary fees to the very persons to whom such life estates were devised. In other words, making each heir the successor of the other and of himself. It was evident to the Court of Appeals—it is evident to us that he intended to make his heirs equal. Of this purpose the charge upon his daughter, Mary A. Quigley, is dominantly significant, not only in effect, but in its expression. She is given a greater quantity of real estate than the other devisees. She is given personal property besides, but, declared the testator, "she is to pay funeral expenses and other legal debts I may owe, also to care for my lot in Mount Olivet Cemetery." That charge was not intended to enlarge the quantity of interest in the real estate devised in the sense contended for, but to make an equality between her and the other heirs and devisees, and, we repeat, that was his especial purpose. In other words, he gave her more property, not a larger interest in it. The devise to his grandson, Frank Foley, shows how carefully the testator regarded his heirs. Surely, as he regarded that grandchild as inheriting the rights which his mother might have inherited, he did not intend a disposition of his property which precluded his other grandchildren of inheriting through their parents. And this will be the result if the appellees are right. No devisee possesses an estate which can be devised to or inherited by his or her children.

Against the effect of the heirs at law of the testator being also his devisees, it may be said that it has been held that, though a testator has given a nominal legacy to his heir or declared an intention to wholly disinherit him, the inflexibility of the rule in favor of the heir has been enforced. Frogmorton v. Wright, 2 W. Bl. 889; Roe d. Callow v. Bolton, 2 W. Bl. 1045; Right v. Sidebotham, 2 Douglas, 730; Roe d. Peter v. Daw, 3 M. & Sel. 518.

In Right v. Sidebotham, Lord Mansfield felt himself constrained to enforce the rule, but he observed in protest: "I