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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. From these views it follows that the decree of the Court of Appeals must be and it is reversed, and the case is remanded to that court with directions to reverse the decree of the Supreme Court, and remand the case to that court with directions to enter a decree in accordance with this opinion.
MR. JUSTICE PECKHAM dissents.
UNITED STATES v. MONTANA LUMBER AND MANUFACTURING COMPANY.
CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
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 recover 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
use. It is alleged that the land from which the lumber was cut when surveyed will be in township 26 N., of range 34 W., of the Montana meridian. The railway company answered separately denying the allegations of the complaint. The other defendants also denied the allegations of the complaint. Further answering, they admitted the cutting of the lumber, but alleged it was cut from land which, when surveyed, would be section 5 of said township, and that said section was within the limits of the grant made by Congress to the Northern Pacific Railroad Company, and that the lumber company was at the time of the cutting the owner of the lands by conveyances from the railway company.
The case was tried to a jury. A nonsuit was granted as to the railway company. Under instructions of the court a verdict was returned for the other defendants.
On the trial of the case the lumber company was permitted to introduce in evidence, over the objection of the plaintiff, a private survey of a portion of the township made by one John J. Ashley, a civil engineer and surveyor, in the year 1886, for the Northern Pacific Railway Company, for the purpose of ascertaining the location of the railroad sections contained in said township, in connection with other evidence that the timber sued for was taken from what Ashley had designated as section 5.
In rebuttal of this evidence the plaintiff offered to prove by George F. Rigby, a surveyor and engineer, that he had made a survey of the same lands, and that the Ashley survey was incorrect, and that section 5 as located by Ashley had been placed three-fourths of a mile too far east. The court ruled out the testimony. From the judgment entered upon the verdict for the defendants the case was taken by writ of error to the Circuit Court of Appeals. Whereupon the latter court stated the facts substantially as above, and recited that there were two other cases pending involving the same questions, and that the court was divided in opinion, and certified to this court the following questions:
196 U. S.
Argument for the United States.
"First. Did the District Court for the District of Montana err in admitting in evidence the proof of the survey made by Ashley and the proof tending to show that the timber cut by the Montana Lumber and Manufacturing Company had been cut on what will be, when surveyed by the United States, section 5 of township 26 north, of range 34 west, Montana meridian?
"Second. Did the court err in excluding the evidence offered, on behalf of the plaintiff in error, tending to show that the Ashley survey was erroneous?
"Third. Did the court err in instructing the jury to return a verdict for the defendants in error on the ground that the United States had failed to prove its ownership of the land from which the timber was cut?"
Mr. Marsden C. Burch, Special Assistant to the Attorney General, with whom The Solicitor General was on the brief, for the United States:
A sovereign makes its own surveys and fixes the boundaries of its grants. The Ashley survey, made under the direction of the railway company, was incompetent, and the fact that Ashley testified that it was made after the method of Government surveys did not relieve it of its vice.
A grantee cannot establish the boundaries of his grant by his own survey, nor can a court of justice do so. Cooper v. Roberts, 18 How. 175; Cragin v. Powell, 128 U. S. 691; Robinson v. Forest, 29 California, 325; Maguire v. Tyler, 8 Wall. 660, 661; United States v. McLaughlin, 127 U. S. 428; Grogan v. Knight, 27 California, 519; Middleton v. Low, 30 California, 605; Blake v. Doherty, 5 Wheat. 358; United States v. Hanson, 16 Pet. 194; Les Bois v. Bramell, 4 How. 449; Mackey v. Dillon, 4 How. 448; Glenn v. United States, 13 How. 256; Smith v. United States, 10 Pet. 326.
The court erred in excluding the evidence offered by the Government tending to show that the Ashley survey was erroneous and also erred in instructing the jury to return a