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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.)
We think the intention of McCaffrey is "put in a clear and unambiguous shape.” He intended to dispose of his whole estate. 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
verily believe, that, in almost every case where by law a general devise of land is reduced to an estate for life, the intent of the testator is thwarted; for ordinary people do not distinguish between real and personal property. The rule of law, however, is established and certain, that express words of limitation, or words tantamount, are necessary to pass an estate of inheritance." And he hence concluded that words tending to disinherit the heir at law, unless the estate is given to some one else, were not sufficient to prevent the heir from taking.
Lord Ellenborough in Roe v. Daw followed the rule, and declared also that he thereby probably defeated the intention of the testator. It is a strange conclusion from the facts and needs the sanction of those great names to rescue it from even stronger characterization. Lord Mansfield spoke in 1781, Lord Ellenborough in 1815. We cannot believe, if called upon to interpret a will made in 1896, when the rights of heirs are not so insistent and the rule in their favor lingers, where it lingers at all, almost an anachronism; when ownership of real property is usually in fee, and when men's thoughts and speech and dealings are with the fee, they would hold that the purpose of a testator to disinherit his heirs could be translated into a remainder in fee after a devise of a life estate to another.
But, perhaps, even the severe technicality of those cases need not be questioned. In the construction of wills we are not required to adhere rigidly to precedents. We said in Abbott et ux. v. Essex Co., 18 How. 202, 213:
“If wills were always drawn by counsel learned in the law, it would be highly proper that courts should rigidly adhere to precedents, because every such instrument might justly be presumed to have been drawn with reference to them. But in a country where, from necessity or choice, every man acts as his own scrivener, his will is subject to be perverted by the application of rules of construction of which he was wholly ignorant.”
To like effect is Cook et al. v. Holmes et ux., 11 Massachusetts, 528, where the will passed on contained the following devise:
"Item. To his grandson Gregory C., only child of his son Daniel C., deceased, a certain piece of land in Watertown, containing about six acres." The will contained devises to other sons of pieces of real estate, charging them with payment of certain legacies. The will concluded as follows: “The abovedescribed legacies, together with what I have heretofore done for my children and grandchildren, make them nearly equal, and are their full portions of my estate.”
The will, therefore, is similar to the will in the case at bar. Equality between the devisees is as much the purpose of one as the other, though it is expressed in one and deduced as an implication in the other. Chief Justice Parker, in delivering the opinion of the court, said: “The quality of the estate which Gregory C. took by the devise must be determined by the words of the will, taken together, and receiving a liberal construction, to effectuate the intention of the testator, as manifested in the will."
Further: “The words of the particular devise to Gregory, considered by themselves, certainly give no inheritance.” And stating the rule of law to be, as contrasted with the popular understanding, “that such a devise, standing alone, without any aid in the construction from other parts of the will, would amount only to an estate for life in the devisee,” added:
"But it is too well established and known to require argument or authority now to support the position, that devises and legacies in a will may receive a character, by construction and comparison with other legacies and devises in the same will, different from the literal and direct effect of the words made use of in such devise; (Cases were cited in note) and this because the sole duty of the court, in giving a construction, is to ascertain the real intent and meaning of the testator; which can better be gathered by adverting to the whole scope of the provisions made by him for the objects of his bounty, than by confining their attention to one isolated paragraph, probably drawn up without a knowledge of technical words, or without recollecting the advantage of using them.”
The devise to Gregory C. was held to be of the fee.
peals must be and it is reversed, and the case is remanded to
MR. JUSTICE PECKHAM dissents.
UNITED STATES v. MONTANA LUMBER AND MANU
CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE
No. 125. Argued January 13, 1905.-Decided February 20, 1905.
While the grant to the Northern Pacific Railroad Company under the act
of July 2, 1864, was in præsenti, and took effect upon the sections granted when the road was definitely located, by relation as to the date of the grant, the survey of the land and the identification of the sectionswhether odd or even-is reserved to the Government, and the equitable title of the railroad company and its assigns becomes a legal title only upon the identification of the granted sections. Until the identification of the sections by a government survey the United States retains a special interest in the timber growing in the township sufficient to re
cover the value of timber cut and removed therefrom. In a suit brought by the United States for that purpose private surveys
made by the railroad company cannot be introduced as evidence to show that the land from which the timber was cut were odd sections within the grant and included in a conveyance from the railroad company to the defendants.
ACTION by the United States against the Montana Lumber Company and the other defendants for the recovery of $15,000, for the value of 2,000,000 feet of lumber which had been cut by the lumber company on unsurveyed lands within the District of Montana, and converted by the defendants to their own