Opinion
April Term 1818.
A devise of "all and every part of my property, goods, chattels, specie of every denomination whatsoever, except such articles hereinafter bequeathed," followed by devises of lands as well as personalty to several persons, will carry real estate, especially if the possession of the house on said realty is given to another until the first devisee arrive at a certain age, or marry.
[Cited in: 1 Tenn. Chy., 568.]
In Error. —
The lessors of the plaintiff claimed an ejectment to the lands in question and upon the trial there was a bill of exceptions, which stated the evidence to show that the lands belonged to Blackmore, the devisor, in his lifetime, and, at the time of his death, he left the lessors of the plaintiff his heirs-at-law. It next stated a will, in which is this devise: "I give and bequeath to Elizabeth Hudson's daughter Cynderella all and every part of my property, goods, chattels, specie of every denomination whatsoever, except such articles hereinafter bequeathed.
I give to William Blackmore the land lying above Bledsoe's lick road, up the Kentucky road, on Dry Creek, also my still and tubes.
I give George Blackmore all my smith's tools. I give Andrew Davis my cross-cut saw and horse-mill, and all the implements. I give Mille Fray 100 acres of land on Stone's River, adjoining Bryan Edwards and John Halter. I give Elizabeth Hudson fifty acres of land I bought of Jeremiah Toliver. Elizabeth Hudson is to keep possession of my house, and have subsistence at the discretion of the executors, until Cynderella is married, or eighteen years old, and, at that period, the said Elizabeth to have one-third part of what stock of horses, cattle, and sheep is then on the plantation, and two beds and furniture; and if the said Cynderella die without heir, her property returns to my heirs," c. The other parts of the will are immaterial to this question.
The land sued for is the tract he lived on at the time of his death. The heirs insist it is not included in the devise to Cynderella. Cynderella married the defendant, Payne.
"All my property, goods, chattels, and specie whatsoever" would, by the restriction of the latter word, toe con-fined to personalty, but for the words "except such articles hereinafter bequeathed" followed by devises of lands as well as personals to several persons, which explains these lands to be part of the excepted articles, and implies that they would, but for this expression, fall under the comprehensive term property. This idea is again further elucidated by the continuance in his house of Elizabeth Hudson till Cynderella should be of the age of eighteen or marry. After that she is to give up the possession of the house, to whom is not said, but it is plain to Cynderella, and how is she entitled to it but under the term property, which, in the estimation of the devisor, is included in it? And then, also, in the same estimation, it included everything real and personal not excepted, in the lands in question amongst other things.
Affirm the judgment.
NOTE. — The general rule, in the construction of wills, is, that when, in the enumeration of particulars, general and comprehensive terms are used, the meaning of those terms will be restricted to things of a like nature and description — ejusdem generis — with the particulars among which they are found. Williams v. Williams, 10 Y., 27; Woolcomb v. Woolcomb, 3 P.W., 111; Cavendish v. Cavendish, 1 Bro. C. C, 437; Perry v. High, 3 Head, 349. But this is a rule of intention, and readily yields where the circumstances show that an adherence to. it would defeat, instead of effectuating, the testator's wishes. 10 Y., 24; Arnold v. Arnold, 8 Cond. Eng., Ch. 36, and the principal case. — ED.