children.
" Of these, the following now survive, viz. : Ann Mary, (now
Evans,) Rebecca, (now Dicks,) Abigail, (DOW Hall,) Jacob, and
Benjamin.
"The following are deceased, leaving issue : Elizabeth, who
left seven sons, Joseph, who died intestate, leaving the plaintiff,
his only son and two daughters ; one of whom is since deceased
without issue.
"The following died in the lifetime of the testator: Sarah,
(who married Elisha Evans,) leaving issue, five children.
" John Neide, died as aforesaid, without issue. At the time
of the making of the will of Joseph Neide, the elder, and at
the time of *his death, his son, Joseph Neide, the younger, r*nn-\
was unmarried, and without issue.
"The quarry referred to in the devise to John Neide, is not
on the premises laid in the declaration.
" POINTS.
"1. The plaintiff contends that under the will of Joseph Neide,
the elder, John Neide, took but an estate for life in the premises
laid in the declaration.
83
77 SUPREME COURT [Philadelphia,
[Neide v. Neide.]
" 2. That Joseph Neide, the younger, took in those premises
an estate tail.
" The defendant denies both these propositions, and contends
that John Neide took in those premises a fee simple.
" By agreement, such judgment is to be entered as the law
and the facts will warrant."
The judge who held the Circuit Court, for the purpose of
bringing the case before the court in bank, gave judgment for the
plaintiff, and an appeal was entered by the defendant from his
decision.
Dick and Tilghman, for the appellant : John took a fee.
The will was written by the testator himself, who, though an
illiterate man, has made his intention manifest. It is the right
of every man to make his own will, and to express his meaning
in his own way. If the intention plainly appear, and be not
contrary to the policy of the law, it must be carried into effect,
no matter how awkwardly it may be declared. An unlettered
man often uses words in a different sense from that in which they
would be understood by a grammarian or a lexicographer, and
it is the business of courts to endeavour to ascertain the meaning
affixed to them by the person by whom they are employed, and
to give them effect accordingly. Morrison v. Semple, 6 Biun.
97 ; Steele v. Thompson, 14 Serg. & Rawle, 98 ; Cassell v. Cooke,
8 Serg. & Rawle, 289. The question then is, what did the tes-
tator, Joseph Neide, mean by his devise to his son John? His
intention is to be gathered from the will alone, and from the
whole will, and it is so clearly expressed, that no plain man,
whose mind is not narrowed by legal technicalities, can entertain
a doubt on the subject. The testator was an uneducated old
man, the father of nine children, and sat down to make a dispo-
sition, in his own way, of all his property, and a provision for all
his children. His main intent is to provide for his eldest son,
the primary object of his bounty, the devise to whom is intro-
duced with very remarkable language, strongly serving to illus-
trate his views. The words "principally, and first of all," would
not be satisfied by giving to John, in reference to whom they are
used, merely an estate for life, in the property devised to him.
The subject of the devise to John is, the testator's " late pur-
chase" from Elizabeth Claxton. It is impossible that he should
have intended, by these words, to describe either the locality or
the extent of the land he had purchased ; he must have meant,
that John should have all his estate and property in it; all that
r^^-\ he *acquired by that purchase, he gave to his eldest son,
' and as he purchased an estate in fee simple, he gave an
estate in fee simple, by that devise. Wherever the words of the
84
4, 1833.] OF PENNSYLVANIA. 78
[Neide v. Neide.]
will describe merely the situation of the property devised or serve
to identify it, an estate for life passes, but where they refer to
the interest of the testator in it, they pass that interest ; thus
" estate/' " effects," " substance," " all I have in the world,"
with many others of similar import, carry a fee. 3 Preston on
Abst, 158; 2 Preston on Estates, 87 to 187; Bailis v. Gale, 2
Ves. Sr. 48 j Scott v. Audrey, 3 Atk. 493 ; 2 Lev. 91.
The twenty-three acres purchased from Elizabeth Claxton were
theprincipal devise, and having ascertained the estate which the
devisee took in that, the question is determined as to the interest
he acquired in the four acres of woodland, subsequently devised.
The latter was an accessory to the former, and followed its na-
ture. Whatever estate was given in the one, was given in the
other. The two devises are connected by the word also, which
is synonymous with in the same manner, and consequently, if a
fee is given in the purchase from Elizabeth Claxton, a fee is
given, in the same manner, in the four acres of woodland. If
an estate for life only was given iii the woodland, John would
have the burthen of paying taxes imposed upon him, without de-
riving the smallest advantage from the devise, and as it is sup-
posed, that a benefit is intended by every devise, the court will
not give to a will such a construction as that contended for on
the other side, unless the language of the testator imperatively
requires them to do so. The intention of the testator, with re-
spect to the devises in question, is further shown by other parts
of the will. After having disposed of his real estate, he pro-
ceeds to make a disposition of his personal property, and
couples the two descriptions of property by the word also ;
also, " I give and bequeath to my son John one horse and one
cow ;" that is, in the same manner that I have given him the
laud, I give him the personal property, and as the estate given
in the latter was absolute, that given in the former was abso-
lute too. This is the only construction which will insure har-
mony and symmetry; any other will produce discord, confusion,
and absurdity. If, according to the opposite construction, John
takes an estate for life, with a remainder in tail to Joseph, then
John, i;i the event of Joseph dying without issue, is to take
two shares of an estate which is not to be brought into ex-
istence until after his death, and yet it is the same estate of
which he is to enjoy the whole during his life. This is the con-
clusion at which the opposite argument must necessarily arrive,
and it is so absurd as to destroy the argument altogether. They
also cited 2 Preston on Estates, 103, 104 ; Pells v. Brown, Cro.
Jac. 590.
Enyle and /. R. Ingersott for the appellee. It is to be la-
85
78 SUPREME COURT [Philadelphia,
[Neide v. Neide.]
inented, that the adoption of the English rule, in the construc-
tion of devises, should in Pennsylvania, so frequently defeat the
intention of the testator ; but judges are not legislators, and it is
r* 7 q-| uow to we ^ settled to *be disputed, that a general devise
-" of land, without limitation, passes only an estate for life.
The will under consideration, contains no words, legally denot-
ing an intent to give a fee simple. The word, estate, which it
has frequently been decided carries the fee, refers not only to
the subject-matter of the devise, but to the duration of interest.
But the word, purchase, conveys no idea of interest. It is
merely a term of description, used to distinguish the particular
property devised from other property. Loveacres v. Blight,
Cowp. 355 ; 2 Preston, 69 ; Morrison v. Semple, 6 Biun. 97 ;
Steele v. Thompson, 14 Serg. & Rawle, 84. A devise of a cer-
tain number of shares, in the New River, a word much more
comprehensive than purchase, was held in Middleton v. Swain,
Skinner, 339, to give only an estate for life. The intention to
give a fee simple, must be clear and unambiguous, otherwise the
rule of law must take place. There must be express words or
necessary implication to defeat the title of the heir at law. If
the language be of doubtful import, he cannot be disinherited.
The devise in question, has no words indicating an intent to give
an inheritance, and there is nothing which by a fair interpreta-
tion, can be made to supply the want of them. Where the words
are not of themselves sufficient to show an intention to give a
fee, it may be inferred from something being superadded, which
is obviously inconsistent with the idea of an intention to give a
less estate. Such a result takes place where a general devise is
charged with the payment of a sum of money ; but in no in-
stance has a word of similar import to the word purchase, been
held to pass a larger interest, than an estate for life, unless
something in the nature of a charge was superadded to it. Busby
v. Busby, 1 Dall. 226; French v. M'llhenny, 2 Binn. 20;
Lessee of Caldwell v. Ferguson, 2 Yeates, 250 ; Doughty v.
Browne, 4 Yeates, 179 ; Campbell v. Carson, 12 Serg. & Rawle,
54 ; Green v. Creamer, 2 Yeates, 378 ; Grayson v. Atkinson,
1 Wils. 333 ; Right v. Sidebotham, 2 Doug. 762 ; Lessee of
Burkart and Willis v. Bucher, 2 Binn. 455 ; Lessee of Willis
v. Bucher, 3 Wash. C. C. R. 369.
Joseph had an estate tail by necessary implication. The in-
tention was to provide for his issue, which could be effectuated
only in this way. The court must give a construction to the
whole instrument, and not such a one as will create an intestacy
as to any part of the testator's estate. Everything is embraced
in the sweeping residuary devise to Joseph, of " all the remain-
der" of the testator's " lands not heretofore willed," and in case
86
4, 1833.] OF PENNSYLVANIA. 79
[Neide v. Neide.]
he should die without issue, then over. He had willed to John,
only an estate for life, and this devise carried the remainder of
the estate in the lands given to him to Joseph, in tail, an indefi-
nite failure of issue being contemplated, which creates an estate
tail. Hopewell v. Ackland, 1 Salk. 239 ; Hyley v. Hyley, 3
Mod 228 ; 1 Roberts on Wills, 439, 442 ; Attorney General v.
Button, 1 P. Wms. 758 ; Lessee of Haines v. Witmer, 2 Yeates,
400.
The opinion of the court was delivered by
*HUSTON, J. Joseph Neide, the grandfather of the r*o/yi
plaintiff and father of the defendant, made his will, '
written by himself on the 19th day of May, 1796, which was
proved on the 29th day of December, 1798 ; he was a farmer,
and not learned, as appears by the spelling, which is very incor-
rect. After a short preamble, it contains as follows : " Prin-
cipally, and first of all, I give and bequeath to my eldest sou,
John Neide, my late purches, from Elizabeth Claxton, as also,
four akres of woodland, being a corner laying between the Bristo
field and Sharplesses' land, further I give to my said son John,
the corner piece of mash from the cross bank out to lo low-
water mark, with a privilege to pas and repas to and from said
mash, through the plantation, also to quarry stone be on (be -
yond) the said mash, as also, I give and bequeath to my son
John one hors and one cow." He then gave to each of his five
daughters a legacy in money ; and to his son Jacob fifty pounds
to be paid in one month after his decease. Then to his son
Benjamin, twenty acres to be taken in the Bristo field, to begin
at William Swaffers' aud running from thence by the Percimen
tree to the great road ; then other small devises to some grand-
children, and to a mulatto boy, and proceeds, " and I do give
and bequeath the remainder of my lands not heretofore willed
to my son Joseph Neide, but in case he should die without issue,
then my son John Neide, shall have two shairs, and the re-
mainder to be equally divided among the survivors," and ap-
pointed Joseph his executor.
It has long ago been said, that after the statutes of wills in
the time of Henry 8, the devisee was called for want of a better
term, aud to distinguish him from the heir, a purchaser, and the
will of a testator was compared to a deed, and the same, or nearly
the same, legal accuracy in designating the quantity of estate,
was required in a will, which was requisite in a deed. As the now
common accomplishment of writing was then rare, and some of the
learned must be applied to before a writer could be found, the
inconvenience was not in those days great. Within a century,
however, more in proportion could write, though they could not
87
80 SUPREME COURT [Philadelphia,
[Neide v. Neide.]
write in legal phrase ; and it became a question, what words
pass a fee in a will. Lord Hobart, than whom, says Chief Justice
Willes, "a greater man never lived," laid down some principles
which are law yet, and beyond which the law has not advanced
much, though other expressions than those on which he decided,
have been held within the principle he laid down. In Hobart,
page 2, Widlake v. Harding, the testator devised to his cousin
Agnes Harding, and her assigns, his dwelling-house for ninety-
nine years, "and my said cousin Agnes Harding, shall have
my inheritance, if the law will allow it," and adjudged she took
a fee. In page 32 of his reports, we find this expression, " If
a devise do sufficiently and certainly show the intent of the de-
visor in the substance, though the circumstances fail, or be de-
fective, 1 care not." In page 75, Spark v. Purnell, he says :
" If by my will I say J. S. shall be heir of my lands, he shall
have it in fee ; this though J. S. is no relation."
r*o-i-i *I shall notice only a few of the many cases on this
- subject, observing that many judges have said, that when
an unlearned man gives a horse, and in the same sentence or a
different one gives a house, and the courts decide that each shall
not hold absolutely and forever, they always disappoint the in-
tention of the testator. I admit, however, that we are not at
liberty to decide that a simple devise of lands to a man uncon-
nected with anything else passes a fee, for \ve would by so doing,
unsettle estates for some years back. The legislature alone can
do it prospectively.
Where the words used, not only apply to land, but to the
quantity of interest which the testator has in it, or which he
disposes of, that interest passes. There are many contradictory
cases, as between, "I give my estate," and "I give- my estate in
A.," or, "my estate at A.," but the law seems to have settled down
in this, that each of these expressions passes a fee, unless re-
strained by other partsof the will. "All my effects" "whatever
else I have in the world;" (Talbot's Cas'es, 286;) "all I am
worth," "what I die possessed of," "what is left after my debts
are paid," the words, property, substance, and many others
have been held to pass a fee. In short, there has been an as-
tuteness to find a meaning which can justify or excuse the courts
in giving a fee where it is plain the testator intended it ; and
though some judges have held in some cases that their prede-
cessors had gone too far, and have doubted some of the decis-
ions, yet the current has still set in the same direction, and
cases doubted by one judge have been considered clear of doubt
by his successors. I refer to the authorities collected in 2
Preston on Estates, from 90 to 186, in Roberts on Wills, Powel
on Devises, and many other books.
88
Feb. 4, 1833.] OF PENNSYLVANIA. 81
[Neide v. Neide.]
It is apparent however that it is riot so much the particular
word or phrase used, as the context, or the scope of the Avhole
will, which passes the fee ; every word and expression in the
English language has different meanings in connection with dif-
ferent words or applied to different subjects. The express de-
vise to a man and his heirs and assigns, is often cut down by
other expressions or by being applied to a long lease, to estate
tail, or to an estate for years ; and so a devise without words of
addition may carry a fee if the expression used shows that the
testator had in view the quantity of interest as well as the de-
scription of the property given. The rule once was, that the
heir at law cannot be disinherited by any other than express
words or necessary implication. In Fagge v, Heaseman, AVilles,
141, Chief Justice Willes shows, that this rule though often re-
peated has not been acted ou, and is inconsistent with many de-
cisions of judges who have used it, and he says the true rule is,
that it ought plainly to appear to be the intent of the testator,
or the heir will not be disinherited.
In our own courts the same principles have been laid down in
nearlv the same words. 2 Binn. 19; 6 Binn. 97; 1 Yeates,
^50, 308 ; 9 Serg. & Rawle, 434, and other cases.
In this will the word heirs nowhere occurs. The words my
late *purchase as used, may and naturally do as well as T^OQ-I
a description of the property include a description of the '
estate or interest in the property. The case in 2 Vesey, 48,
has nearly the same phrase and was held to pass a fee. But it
was contended the devise to Joseph of the remainder of his lands
not heretofore willed, showed that John had only a life estate
and the remainder to Joseph. The answer is, that he gives to
Joseph the remainder of his lauds not before willed ; not the
remainder of his estate in those lauds, and further that this con-
struction will make the will absurd. The testator could not have
intended to give to John for life, and after his death to Joseph,
and after Joseph's death two shares to John. There were other
lands not before mentioned to satisfy the devise to Joseph ; those
lands he gave to Joseph, and no others.
On the whole, we have found no case directly in point. The
case above cited in 2 Vesey, 48, is the nearest to it. The very
words " I give my new purchase," &c., are put in Hobart, 32, as
an example that a fee may pass by those words in a certain con-
nection with other words ; we think however that the phrase,
" my late purchase," is equivalent to, " what 1 lately purchased,"
and that would describe the interest given as well as the prop-
erty given. " The four acres of woodland" is so coupled with
" the late purchase," that it goes as the other does, that is, in fee.
89
82 SUPREME COURT
[Neide t>. Neide.]
John, then, having devised this property to Jacob, the fee sim-
ple is in Jacob, and judgment must be entered for him.
Judgment for the defendant.
Cited by Counsel, 2 Wh. 285 ; 5 W. 435 ; 6 W. 199 ; 10 W. 327 ; 6 Barr,
415; 4C. 46; 1 G. 241 ; 10 S. 278.
Cited by the Court, ] Wh. 264; 2 Wh. 383 ; 6 H. 25; 7 H. 92 ; 12 H. 245.
[*83] ^PHILADELPHIA, FEBRUABY 4, 1833.]
Bauer and Others against Roth and Another.
IN ERROR.
Where judgment is given in favour of the plaintiff on a demurrer to a plea
in bar, it should be a judgment quod recuperet, and not quod respondeat ouster;
but if judgment quod respondeat ouster be given, it is an error of which the de-
fendant cannot complain, for it is in his favour.
To an action founded on a bond of indemnity nil debet is no plea.
It is no cause of demurrer to a special plea, that the facts set forth in it, may
be given in evidence under the general issue.
In an action on a bond in indemnity by two obligees, a plea, stating in sub-
stance that the defendant, with others (originally bound with him) agreed
to join in the execution of the bond to one of the plaintiffs alone to indem-
nify him, &c., and positively refused to be bound to the other plaintiff in any
manner or form whatever to indemnify him, &c., either severally, or jointly
and severally with his co-plaintiff, and that neither of the obligors being able
to read the English language in which it was drawn up, they all signed it upon
trust, and delivered it to the plaintiff to whom they agreed to become bound,
without having heard it read or explained or interpreted, and without
having requested that it should be, believing that it was written in
exact conformity to their previous agreement, but not stating how or why the
deviation from the agreement happened, whether by frand of the plaintiffs or
mistake of the scrivener, is not sufficient to bar the plaintiffs' action.
It is no plea against the further maintenance of an action, that one of the
plaintiffs, since its institution, has applied for and obtained a discharge under
the insolvent laws, and that his trustees have not given the security required
by law.
A mere irregularity in point of time, in putting in a plea puis darrein con-
tinuance, is no cause of demurrer to the plea, whatever it might have been
for setting it aside on motion ; but the power to set it aside may be questioned
since the act of 21st March, 1806.
Query, whether in Pennsylvania, a plea puis darrein continuance is a waiver
of a previous plea in bar.
The obligors in a bond reciting that the. obligees, together with M. are
bound in seven obligations to the heirs of C. B. to be paid by the said M. and
conditioned that he shall pay them on the days and times mentioned therein,
and also to keep harmless and indemnify the obligors from all suits, payments,
costs, and charges, in behalf of the recited obligations, are responsible for the
default of the principal debtor in those obligations, though they may have
passed into the hands of assignees.
There is no error in instructing the jury in reference to the defendant's lia-
bility on such a bond of indemnity, that "the plaintiffs' claim for damages
does not rest on the ground of injury done them by reason of their liabilities
as sureties for M. and on the neglect of M. to pay the heirs of C. R. The
ueasure of damages is the amount of injury actually sustained."
90
Feb. 4, 1833.] OF PENNSYLVANIA. 83
[Bauer and others v. Roth and another.]
Nor is there error in charging the jury, that in strictness of law they might
give the plaintiffs the full amount due in each of the actions on the recited
obligations, mentioned in the breaches assigned in the declarations in the suit
on the bond of indemnity, at the commencement of that suit, recommending
to them, however, if they should find for the plaintiffs, to regulate the amount
of the damages by the amount of moneys actually paid out by the plaintiffs,
with interest from the time of such payments ; the jury having adopted the
recommendation and found a verdict accordingly.
FROM the record returned on a writ of error to the Court of
Common Pleas of Northampton county, it appeared, that to
April Term, 1821, of that court, Peter Roth and John Roth
brought an action of *debt on bond against Jacob Bauer, r^o^-j
George Keirn, and Jacob Miller, the plaintiffs in error. '
The original writ, which was a summons, was served on Bauer
and Miller, but not on Keim. The plaintiffs' attorney filed a
declaration, in which he set forth the bond and the condition at
large. The condition was as follows :
" Whereas David Musselraan, by seven certain obligations
bearing even date herewith, together with the said Peter Roth
and John Roth standeth bound unto the heirs of the said Con-
rad Roth in the above sum of three thousand nine hundred and
sixty-two dollars and sixty-nine cents, current money of Penn-
sylvania, aforesaid, to be paid by seven instalments, which said
money is to be paid by the said David Musselman, his heirs, ex-
ecutors, and administrators. Now the condition of the above
obligation is such, that if the said David Musselman shall pay,
or cause to be paid, the said above-mentioned debt or sum of
three thousand nine hundred and sixty-two dollars and sixty-
nine cents, on the days and times mentioned in the said several
obligations to the said heirs of the said Conrad Roth, deceased,
and if the said Jacob Bauer, George Keim, and Jacob Miller,
their heirs, executors, and administrators shall from time to time
and at all times hereafter, keep harmless and indemnify the
said Peter Roth and John Roth, their heirs and assigns, their
goods and chattels, lands and tenements, of and from all suits,
payments, costs, and charges of and in behalf of the said above
recited obligations, to the heirs aforesaid, without any fraud or
further delay, then," &c.
Several breaches of the condition were also set forth in the
declaration by averring the non-payment by David Musselman,
of several of the sums of money specified in the condition of
the obligation given to the heirs of Conrad Roth, according to
the tenor thereof, and that the plaintiff's had actually been com-
pelled by suit to pay certain sums, which are mentioned, besides
being sued for certain other large sums, which still remained un-
paid. To this declaration, Bauer and Miller, by their attorney,
91
84 SUPREME COUET [Philadelphia,
[Bauer and others v. Roth and another.]
pleaded covenants performed, wijth leave to give the special