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Statement of the Case.

196 U. S.

The question involved in this case is the construction of the will of Hugh McCaffrey, deceased. It was duly admitted to probate and recorded in the Supreme Court of the District. It is as follows:

“WASHINGTON, DISTRICT OF COLUMBIA,

April Thirtieth, 1896. “In the name of God, being now in good health and sound in mind and body I hereby certify and declare this to be my last will and testament, hereby annulling and revoking any and all wills previously made.

“I give and bequeath to my daughter, Mary A. Quigley, house number 301 at southwest corner of 11th and C streets southeast, being in lot number 5, in square 970, with the store and dwelling, stock and fixtures, and lot on which it stands, also houses numbers 13 and 15 6th street southeast with lots on which they stand, being parts of lots 19 and 20 in square 841, also any money in bank to my account at the time of my death, also any money due to me, also any building association stock. She is to pay funeral expencies and any other legal debts I may owe, also to care for my lot in Mount Olivet cemetrey.

"I give and bequeath to my son, James B. McCaffrey, house number six hundred and two (602) East Capitol street and lot on which it stands, being in lot number ten (10) in square number eight hundred and sixty-eight (868).

“To my son, William H. McCaffrey, I give and bequeath house 604 East Capitol street, being in lot number ten (10) in square number eight hundred and sixty-eight (868) and lot on which it stands.

“To my daughter, Lizzie Manogue, I give and bequeath house number fourteen hundred and twenty-three (1423) Corcoran street, N. W., and lot on which it stands, being lot number fifty-four (54) in square number two hundred and eight (208).

“2. To my son, Francis T. McCaffrey, I give and bequeath house five hundred and nineteen (519) East Capitol street, and

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lot on which it stands, being part of lot number (20) in square eight hundred and forty-one (841), also my horse and buggy.

“And to my grandson, Frank Foley, I give and bequeath house number one hundred and twenty-one (121) Eleventh street, S. E., being in lot number fourteen (14), square number nine hundred and sixty-eight (968), and lot on which it stands.

“To my grandson Joseph Quigley, I give and bequeath my watch and chain.

“I hereby name and appoint as executors of this my last will and testament, John E. Herrell and Patrick Maloney.

“All the real estate herein described is located in the city of Washington, District of Columbia.

“Hugh McCAFFREY. (SEAL.]”

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The devisees in the will were the only heirs of the testator.

On the tenth of July, 1897, Mary A. Quigley, died leaving surviving four children, the appellants Catherine L., Margaret, Mary and Joseph Quigley. Edward Quigley, her husband, also an appellant, survived her. She left a will, which was duly admitted to record, by which she devised all her estate to Catherine L. and Edward Quigley in trust for her children. Francis T. McCaffrey, son of Hugh, and one of the devisees in the latter's will, died October 20, 1898, leaving as heirs at law his brothers and sisters, the children of his deceased sister, Mary A. Quigley, and his nephew, Frank Foley. He left a will, by which he devised and bequeathed all of the property to his sister, Lizzie C. Manogue, and his brothers, William A. and James B. McCaffrey, “absolutely and in fee simple, according to the nature of the property, as tenants in common, but not as joint tenants.” At the time of his death he was seized and possessed of the real estate devised to him by his father.

James B, McCaffrey has sold and conveyed the lot devised to him to the respondent George W. Manogue. Upon an attempt to sell the property devised by Francis T. McCaffrey a doubt was raised as to the extent of the interest devised to him

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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.

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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,

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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,

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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

a 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

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