Doe D. Cooper v. Biddle

Counsel

Spruance, for the plaintiff, contended that the devise in question was but a devise of one-half of the farm for life to Leander Biddle and cited 2 Powell on Devises 377. 1 Cowper 235. 2 Ibd. 657. 8 T. R. 64. 2 Doug. 759. 3 Harr. 482. G. B. Rodney, for the defendant: There were no words of limitation in the devise, but if there was a clear intention manifested in and throughout the will to give an estate of inheritance to the devisees mentioned in the devise, it should control the technical construction of it, even in the absence of any such terms, and be held to give to each of them one-half of the farm in fee simple. Such words were indispensably necessary in a deed to convey an estate of inheritance, or for a longer period than the life of the grantee, but the authorities and adjudged cases on the subject all showed that in devises the plain and obvious intention and desire of the testator as indicated and expressed in the whole will, unless it conflicts with some established and inflexible rule of technical construction, would be served and carried out by the courts, and would be interpreted to give an estate in fee without such words of limitation, if the wish and design of the testator to be inferred and ascertained from a careful consideration of the whole will, should clearly require it. 8 Law Libr. 64. 4 Kent's Com. 535. 6 Cruise 260. 1 Cowp. 238. 2 Pr. Wms. 194. Amb. 387. 8 T. R. 597. 2 Ves. Sr. 48. 1 Salk. 234. 1 Cowp. 352, 299. 17 Johns. 281. 6 Binn. 94. 14 East 370. Take then the present case and construe this will in the same light and spirit in which the cases just cited were ruled and decided by many of the most able and eminent judges in England, carefully considering all the other parts and provisions of it in regard to his other children in connection with the special devise in question, and particularly the subsequent clause in which the testator gives to his sons Eli, Augustine and Alexander a full discharge of all the accounts he had against them, allowing, as he adds in a very significant, if not a very appropriate phrase, that what he had given them and done for them in his lifetime, to be equal to what he had left to his other children in his will, and who could escape the conclusion and conviction that it was the manifest design and intention of the testator that not only those three sons should have no more of the estate, but that the farm devised to Samuel T. and Leander to be equally divided between them when the former attained his majority, should go to them, their heirs and assigns forever? Unless such was the construction to be given to the devise in question, then the subsequent history of it, although not disclosed in the case stated, warranted him in saying that Leander Biddle in point of fact, took little or nothing under it, and such he was sure was not the intention of his father. The Court, however, declining to hear any reply from the counsel on the other side, held that Leander Biddle took but an estate for the term of his life in one-half the farm under the devise.