Opinion
Spring Sessions, 1849.
Cullen and Bayard, for plaintiff.
Houston and Layton, for defendant.
THIS was an ejectment for a tract of land of which James Miller, died seized, having devised thus: "I give and bequeath unto my son James F. Miller, my plantation, whereon I now `live, with all the lands adjoining by the names, c., excepting that my wife Letty Miller is to have her thirds out of this said part given to my son James F. Miller, during her natural life."
He gave also to his said wife certain specific property and one-third part of his clear moveable property," and for his wife's thirds, to be taken out of the part he gave to his son James F. Miller, during her natural life.
He gave to his daughter Mary C. Miller, certain land and $550 out of his moveable property, "and then the one-third part of all the balance of his clear moveable estate not otherwise given away, to her and her heirs forever."
The question was whether James F. Miller took for life, or in fee.
The plaintiff's counsel contended that it was but a life estate, and that on the death of James F. Miller, the land deceended to the heirs-at-law of the testator of whom Mrs. Walter was one. They cited 1 Cowp. Rep. 235; 2 Jerm. on Wills 170; 7 Term Rep. 631; 9 East. Rep. 268; 33 Com. Law Rep. 74; 31 Ibid 350.
The defendant's counsel gave to the word "plantation" the force of the word estate; and also insisted that a general devise without limitation, subject to a life estate, gave a fee by implication; but
The Court charged that James F. Miller took only a life estate under this devise.
On the trial the defendants offered evidence of the testator's declarations of his intention, which was objected to and ruled out. [1 Green. Evid. 338 § 287.]
Verdict for plaintiff.