Fitch v. Com'rs, &c. of Kirkland.

also Spicer v. Slade, 9 Johns. R. 359, as to the degree of certainty required by the nature of this proceeding. It cannot be pretended that Fitch was particularly informed of what he was to do, without being referred to the survey of Butler. Non constat, that this survey was annexed to the certificate, nor is it so referred to that Fitch could identify it, without a knowledge of several extrinsic facts mentioned in the return. From these, he might guess what survey was intended. But it was easy to annex the survey or a copy of it, and refer to it as annexed, at least, to mention it as having been filed and remaining on file in the clerk's office. This was not done. Twenty words would have made both the order and certificate conformable to the statute. The commissioners have preferred to load their return with extrinsic facts within their own knowledge, and some of which they say were within the knowledge of Fitch, on which it is sought to remedy the formal defects in the order, and to maintain that Fitch must have known what the jury's certificate meant to direct. We cannot follow them out of the proceedings to notice such facts.

I much doubt, however, whether the certificate is properly before us, even if the order be so. The former was made by the jury, and is, by statute, to be filed with the town clerk, who would be the proper officer for certifying it. It is perhaps different with the commissioners' order. See Bacon's Abr. tit. Certiorari, (F.) No objection was taken by counsel, to our hearing and disposing of the case on the merits. The order was the judicial act of the commissioners, and they have returned it without objection. Let that be quashed, and the certificate falls of course.

Order quashed.

HELMER and wife vs. SHOEMAKER.

Where a testator devises all his real and personal estate to a devisee, giving him the power of unqualified disposition of the property devised, the devisee takes a fee simple absolute in the real estate, although there be no words of limitation applicable to such devise, and notwithstanding that by a subsequent clause in the will a limitation over is created in favor of another person, as to so much of the property given to the first devisee as may remain at the decease of the first taker.

THIS was an action of ejectment, tried at the Onondaga circuit, in September, 1837, before the Hon. DANIEL MOSELEY, one of the circuit judges.

Both parties claimed under the will of Rudolph R. Shoemaker, which was made on the 7th June, 1827. By it, the testator gave all his estate, real and personal, of which he was then or should be in possession at the time of his decease, to his wife Margaret, without any words of limitation. The will also contained a clause in these words: "I also will and bequeath to my daughter Charity Helmer, the wife of Michael Helmer, all the avails of the property that may remain at the decease of my wife Margaret, until Rudolph Helmer the son and heir of her, the said Charity, shall become 21 years of age, then the said property more or less remaining, shall be the property of him the said Rudolph, with him the said Rudolph supporting his mother Charity, if it may be wanting, so long as the property remains." The testator died in 1827 seized of about 16 acres of land, leaving his wife, his daughter Charity and his grandson Rudolph him surviving; the latter being at the time of the death of the testator about seven years of age. In 1831, Margaret, the widow of the testator, conveyed 13 acres, part of the 16 acres, to two of her sons, under whom the defendant claims. In 1837 she died, when this suit was commenced by Charity Helmer in her own name and that of her husband, for the recovery of the 13 acres, the remainder of the 16 acres having been conveyed to her by her mother at the time of the conveyance to the sons. The inVOL. XXII.

18

Helmer v. Shoemaker.

come of the property was sufficient for the support of the widow during her life. The judge charged the jury, that Margaret, the widow, under the will of the testator, took only a life estate, and that upon her decease, the property vested in Charity, the daughter of the testator. The jury accordingly found a verdict for the plaintiffs. The defendant excepted to the charge of the judge, and now moved for a new trial.

J. Watson, for the defendant.

J. A. Spencer, for the plaintiffs.

By the Court, COWEN, J. The will was inartificially drawn in every respect. It is well settled that the devise of all the testator's real and personal estate to Margaret, was sufficient to carry a fee in the land, if there had been nothing else in the will shewing that such was not the intention. Technically, in order to carry a fee, the usual words of limitation "her heirs," &c., would have been necessary. But in case of wills, where the intent to devise a fee is made apparent, either by equivalent words or other parts of the will indicating that such was the probable intent, this has been received as a substitute. That was a departure from the common law, out of favor to wills; in other words, out of favor to the intent; and it was only to reach the intent that the departure was allowed. There is nothing in the words, "I devise all my real estate" necessarily incompatible with an intent to devise for life only. The testator might have said, "I devise all my real estate for life," and then the word estate would be taken as merely descriptive of the subject matter; and not as indicating a limitation in fee; and if by subsequent words such intent appear to be plain, there is no authority against its taking effect. There is no rule of law against the words of a will being in any way explained or limited by a subsequent part of the same instrument, or even by a codicil, though I agree that the qualification should be explicit. If the words had been, "after my said wife's death, the said

Helmer v. Shoemaker.

real estate shall remain to Charity, till, &c., and then to Rudolph," &c., there would have been no doubt that the testator intended but a life estate to Margaret, any more than if he had said so immediately by express limitation; and such intent must have been allowed.

Here, however, the devise in remainder, is of all the avails of the property that might remain at the death of the testator's wife, to Charity, &c., till Rudolph's full age; and more or less of it then remaining, to go over to him; as if it was to be sold or consumed from time to time, both by Margaret and Charity, as it came successively into their hands. The devise then stands thus: "I devise all my real estate to Margaret, and the avails of it that remain at her death, I devise over to Charity," &c. The difficulty is to see how such an equivocal expression may be said to be a clear qualification of the previous words. Does it not rather imply an intention that Margaret should have an estate absolutely disposable, according to the devising words when taken in the abstract? If so, it cannot be called a counteraction of the legal import of those words; but rather a confirmation of it. It looks like the testator supposing he might give a fee, a right of absolute disposition to a devisee, providing in the same will, that if the whole or part of the avails arising from sale, or other disposition, should happen. not to be consumed by his necessities, it should go over. That would not carry the land. At the utmost, it would carry only so much of the estate as the devisee had not disposed of during his life. The law then rather construes the original devise to mean a fee simple absolute, in respect that the devisee takes the power of unqualified disposition for his own benefit. In such case, his creditors may take the whole interest in the land to satisfy his dels or he may mortgage or sell, as if the devise had been cypressly in ae. and the devise over, being repugnant to the first dove, is void. Such is the best I can make out of this case, which also derives considerable aid from authosty. The poscee ple of the following cases akong hose cited in the conce of the argument, is believed deadly to sustain the defence :" Jackson, ex dem. Livingston, v. Die Lancey, Johns. R.

Roberts v. Roberts.

36: 13 id. 537, S. C. on error; Jackson, ex dem. Livingston, v. Robins, 15 Johns. R. 169; 16 id. 537, S. C. on error; Ide v. Ide, 5 Mass. R. 500; The Attorney General v. Hall, Fitzg. 314.

The consequence is, that the sale by Margaret was valid, for the whole fee; and there must be a new trial, the costs to abide the event.

ROBERTS VS. ROBERTS.

will

An agreement by the baron, in contemplation of marriage, to give to the feme, his intended wife, a farm on his decease, stating that after the marriage he shall have no right to dispose of the farm except to her, be construed into a covenant to stand seized to her use, although the technical terms of such an instrument, "I hereby covenant to stand seized," &c., are not used. The intent of the parties will be sought after and enforced.

A prospective marriage is a sufficient consideration to support such covenant, when the marriage is subsequently solemnized.

THIS was an action of ejectment, tried at the Oneida circuit, in October, 1838, before the Hon. PHILO GRIDLEY, one of the circuit judges.

The plaintiff claimed to recover the premises in question under a sheriff's deed dated 29th August, 1837, in pursuance of a sale by virtue of an execution issued on a judgment in his favor, against Robert Roberts, entered on a bond and warrant of attorney, bearing date 1st December, 1833, given to secure the payment of $1775,40, on the 1st February, 1834. The judgment was docketed 25th December, 1834. At that time Robert Roberts was the owner of the premises in question, being 40 acres of land, worth $1200.

The defendant, Mary Roberts, in her defence read in evidence an instrument in writing, bearing date 2d 'March, 1827, executed under seal by Robert Roberts and herself, in the words following: "This agreement is made between Robert Roberts of, &c., on the first part, and Mary Roberts of, &c., on the other part, who intends shortly to be married, that is to say: the foresaid Robert Roberts promises,