cases, there is no other reference than one in the margin to Trin.
30, Eliz. The rule of construction which was adopted in those
cases, is not given ; nor have I met with any report of the same
date, in which they are contained and explained.
r*/G-i *But by turning to some of the cases on this subject,
' all that has been set forth and quoted from Shep. Touch
will be found in other cases, and the rule for the construction
put on these sentences, so fully explained as to show that neither
they nor yet any of the adjudications in respect to this matter,
sustain the construction contended for by the counsel for the
plaintiffs.
74



#.4,1833.] OF PENNSYLVANIA. 69

[Evans and Wife v. Knorr, executor of Norton.]

In the case now under consideration, the clause giving the one
thousand dollars legacy, is an entirely distinct one from the pre-
ceding; and there certainly needs no reference or relation to it,
in order to give it either meaning or effect, because it is com-
plete and perfectly intelligible in itself. The word, "also,"
which is prefixed to the sentence, serves, as it most frequently
does in wills, to point out the beginning of a new devise or a
new bequest. It imports no more than, " Item," and is of the
same signification in this place as " moreover," and cannot be
construed to mean "in like manner," as if the testator had said,
"I give and devise unto my friend, George Knorr, and to his
heirs and assigns, my tract of land, situate, &c., with the appur-
tenances ; also, all the goods and chattels assigned to me by the
said William Savery Evans, to hold to him the said George
Knorr, his heirs and assigns in trust, only to and for the sole
and separate use of Ann Evans, (wife of the said William Savery
Evans,) and the heirs and assigns of her, the said Ann Evans
forever; in like manner, I give one thousand dollars." But
thus framed, it must be observed, that this latter clause, would
be imperfect of itself, and a reference to the preceding, would
be indispensably necessary and proper to render it intelligible,
and to get at the meaning and intention of the testator, for the
legatee is not even named in it. In the will as it is drawn, we
have an instance of this in the two clauses embracing the land
and the goods, which are connected by the word, " also," which
is obviously used there as a mere copulative. In the latter
clause, embracing the goods, the agent or testator and the verb,
indicating his act and will, do not appear, without which it is
unintelligible and unmeaning, and to supply the omission, you
must refer to the prior ; and again in the latter, the tenendum
is introduced, and the trust with its nature declared, which are
not contained in the clause embracing the land, but by means of
the copulative-" also," are to be connected with it as well as the
goods. Thus the imperfection in the second clause, renders a
reference to the first necessary, and this relationship and de-
pendence being once established between them, they are to be
considered arid construed as the component parts of one com-
plete sentence mutually aiding and giving light to each other.
Here we have this sentence in the will disposing of the land and
the goods, which is perfect and complete ; and the subsequent
clause, which is the one giving the thousand dollar legacy, is
equally so. And this latter is in no wise dependent upon the
first, to make it more complete and more intelligible than it
would be without any such clause or sentence as tlie first being
in the will at all. Now it will be found upon reference to the

75



70 SUPREME COURT [Philadelphia,

[Evans and wife o. Knorr, executor of Norton.]

r*7fn authorities, that it is only where *the first sentence
J is complete, and the second so imperfect, or vice versa,
as not to be intelligible without referring to the first or the one
that is perfect, in order to supply the defect, that the word
" also," can ever have the meaning of the words, " in like man-
ner," given to it, or in causing the one clause to govern and di-
rect the other. As in 1 Roll. Abr. 844, Tit, Estate by Devise,
(M.) pi. 2. "If a man devise Blackacre to one in tail, and also
Whiteacre ; the devisee shall have an estate tail in "Whiteacre ;
for the whole is but one sentence, and so the words which make
the limitation of the estate belong to both.' 1 Trin. 40, Eliz. B.
R. cited by Fenner, Just, to have been decided in bank. So in
Cole v. Rawlinson, Holt, 744 ; s. c. Ld. Raym. 831, and 1
Salk. 234 ; decided in B. R. 1 Anne, where the testator " gave all
his estate, right, title, and interest, which he then had and all the
term and terms of years which he then had or might have in his
power to dispose of after his death, in whatever he held by lease
from Sir John Freeman, and also, the house called the Bell
tavern to John Billingsley." It was ruled by the three puisne
justices ; contra, Holt, C. J., that the devisee took a fee in the
Bell tavern, " because, as they say, it is but one sentence,
coupled by the words, " and also," and governed by one verb,
whereby the proposition in, is carried unto the Bell tavern, so
that it is a devise of all the testator's leasehold estate, and also
in the Bell tavern." See 1 Salk. 234, and 2 Ld. Raym. 832.
In both these cases, the first clause, it will be observed, is per-
fect, but the second being altogether imperfect, rendered a refer-
ence of it to the first necessary, and becoming thus connected
with it, they both make a whole sentence and as such were con-
strued. Again in Moore, 52, 53, pi. 153, as early as Pasch. 5
Eliz. This case is put by Dyer, Chief Justice, in the following
form : " Item. I give the manor of D. Item. I give the
manor of S. to I. K. and his heirs." Here, it will be observed,
that the first clause is the imperfect one, ard to render it intel-
ligible, a reference must necessarily be had to the second, which
makes it complete. The first is defective in not giving the name
of the devisee, and the word, "Item," is used as a copulative to
connect it with the second clause, which gives the name of the
devisee, and the quantity of estate intended for him, thus
making the whole but one devise, and giving to the devisee a
fee simple in both manors, as he said.

Now it is plain, that the cases cited from Shep. Touch, fall
directly within the principle of these cases just referred to, be-
cause the same imperfection appears in either the first or second
clause of each of them, and renders it therefore necessary to refer
to the one, in order to make sense of the other.
76



Feb. 4, 1833.] OF PENNSYLVANIA. 70

[Evans and wife v. Knorr, executor of Norton.]

But if a man devise in this manner, " Item. I give my manor
of Dale to my second son. Item. I give my manor of Sale to
my second sou and his heirs/' the devisee shall only take an es-
tate for life in the manor of Dale, but a fee in the manor of Sale.
So held by Dyer, Chief Justice, and two of the puisne Justices.
Brown, Justice, dissenting, *Pasch. 5 Eli'z. ; Moore 52, r^i-i
53, pi. 153, and considered the word, "Item," as merely
indicating a new devise.

So if " I devise Blackacre, to my daughter F. and to the heirs
of her body engendered. Item, I devise unto my said daughter
Whiteacre ; she shall have an estate for life only in Whiteacre,
for as the court said, the word ' Item,' is not equivalent to in
the same manner." Trin. B. R. 40, Eliz. per curiam. 1 Roll.
Ab. 844, Tit, Estate Devise, M. pi. 1. See also, 1 Mod. 100,
and 1 Sid. 105, per Just. Wind ham, to the same eifect. Here
each clause is perfect and intelligible of itself, and must be con-
strued according to the language employed by the testator in
each. And the word " Item," imports nothing more than
" moreover," " beside," or, " in addition thereto," and is used
as I have already said, to show that what follows it, is intended
to be in addition to that which precedes or otherwise, as Lord
Hardwicke has said, 3 Atk. 438, " is only made use of to dis-
tinguish the clauses in the will."

In Spirt v. Beuce, decided in the time of 10 Car. 1 Trin. B.
R. Cro. Car. 368, on a devise of " all my pasture lands in D.
to my youngest son, Henry, And also all bargains, grants, cove-
nants, which I have from B. my sou Henry shall enjoy and his
heirs forever ;" it was held that Henry took only an estate for
life in the pasture lands in D. And the court there said that
the word "also," was no more than the word "and," and should
not extend to the quantity of the estate. Again in Hopewell v,
Ackland, 1 Salk. 239, and reported also in Com. Rep. 164,
where in the argument in page 166, the distinction which I have
mentioned, is supported and illustrated with great force and
perspicuity. The testator there devised as follows : " I devise
my manor of Buckuall to A. and his heirs. Item, I devise all
my lands and hereditaments to the said A. Item, I devise all
my goods and chattels, money and debts, and whatever else I
have not before disposed of to the said A., he paying my debts
and legacies." It was urged that the word " Item," conjoined
the sentences and carried on the testator's intent, and imported
a meaning to give the like astate, as was before expressed in
the preceding sentence. But, Trevor, Chief Justice, who de-
livered the opinion of the court ; said, "Item, is an usual word in
a will to introduce new distinct matter; therefore a clause thus
introduced is not influenced bv nor to influence a precedent or

77



71 SUPREME COURT [Philadelphia,

[Evans and Wife v. Knorr, executor of Norton.]

subsequent sentence, unless it be of itself imperfect and insensi-
ble without reference ; therefore, not here, when both clauses
are perfect and sensible." And for this reason the court held
that the second clause conferred on A. only an estate for life,
notwithstanding he took a fee in the manor of B. under the
first clause ; and likewise, again in the third, under the words,
" whatever else I have not disposed of/' between which and the
second clause, the word "also," was introduced a second time.

In Childs v. Wright, 8 Term R. 64, where the testator de-
vised as follows : " I give and devise unto my grandson, I. W.,
all my lands, freehold, copyhold, and leasehold in A. Also, I
r*79~l gi ye an d devise unto *my grandson, I. W., all my estate,
freehold and copyhold in B.," it was held that I. W.
took only a life estate in the devisor's estate in A. although he
had a fee given to him by the immediately succeeding clause
under the term estate in the lauds in B., and it is not even sug-
gested that the word "also," ought to make it otherwise. Each
clause was perfect of itself; and therefore, although the word
"also" stood between them, it could give the one no bearing or
influence upon the other.

The last case to which I will refer on this point, is Fenny v.
Eustace, in 4 M. & S. 58, where the rule and the distinction
with respect to the use and meaning of the word " also" in wills,
is fully recognised and applied by the court as in the cases pre-
viously stated.

The husband is bound for the payment of the wife's debts.
He is bound likewise to support and maintain her under all cir-
cumstances; and the law having imposed these obligations and
duties upon him, has at the same time, gone so far in furnishing
the means, as to give him a right absolutely to all her personal
estate, as well as a right to the use of her real estate, at least
during the coverture ; of which he is not to be deprived with-
out clear and unequivocal evidence, that it was the intention
and will of the donor to give it to the wife, so that it should not
be subject in any way to the control of the husband. Mr. Roper
says, "courts of equity will not deprive the husband of the
right to participate in his wife's property, unless a clear inten-
tion be manifested by the testator that the husband is not to
derive anv benefit from the disposition." 2 Roper on Leg. 296.

The Vice-Chancellor in Lumb v. Milnes, 5 Ves. 520, 821,
says, " The point is, whether there is anything to show, the
husband was not intended to be entitled to what every husband
is entitled to ; at least a participation by him with his wife,
whose debts he is bound to discharge, and whom he is bound to
maintain. It is necessary to show a decided intention, that the
husband*shall have no interest whatever."
78



Feb. 4, 1833.] OF PENNSYLVANIA. 72

[Evans and Wife v. Knorr, executor of Norton.]

So far as rules have been adopted and settled in the construc-
tion of wills, it is no doubt greatly for the interest of the com-
munity, that w should abide by them, for they are and ought
to be so considered, as part of our landmarks. Indeed, it has
often been regretted by some of the best and most experienced
judges, that the same technical words and rules had not been
adopted and required in respect to the making and construction
of wills that prevailed in regard to deeds, as it would have pre-
vented many disputes which have arisen and will still continue
to arise from these sources.

Although in construing wills, the intention of the testator is
the cardinal or governing rule, yet there are also some rules on
this subject of a fixed character ; one indeed, which in most in-
stances where it is applicable, is thought to be opposed to the
intention of the testator. For example, a devise of laud eo
nomine to a person without words of inheritance, or other ex-
pression, declarative of the quantity of estate, which the de-
visee shall have in the laud, gives to him by *a fixed rule r*7q-i
of construction, only a life estate, when it is believed in L
most cases of the kind, that a fee was intended by the testator.
It is also a rule, as I conceive, particularly applicable in con-
struing wills, because strongly indicative of, and subservient to,
the testator's intention, that when he has in one part of the will
shown his knowledge of the technical form used in drawing a
devise or bequest with a view to accomplish a precise and definite
object by using and adopting it, and again in another devise or
bequest in favour of the same person, uses words, that without
the first beiug employed in the same will, would not be held to
be of the same import ; or even uses words in the second case
of doubtful import, such as might or might not have been in-
tended to mean the same thing with the technical form of words
used in the first devise or bequest, the design and intention of
the testator must be considered different in the second case from
what it was in the first, and the effect will not be the sarnt, in
both cases ; because it cannot be supposed that a man of the
least sense, would use terms of dubious import, to express the
same purpose, after showing that he was acquainted with the
technical language used for declaring it with positive and abso-
lute certainty. This rule was applied in the case of Wills r.
Say res, 4 Madd. 409, (American Ed. 216,) where the testator
bequeathed to the defendant six hundred pounds stock upon
trust, to apply the dividends for the sole and separate use and
benefit of his daughter, who was a feme covert, and her receipts
were to be sufficient discharges ; and then bequeathed the resi-
due of his personal estate and effects, after payment of his debts,
&c., to her " for her own use and benefit ;" it was held by the

79



73 SUPREME COURT [Philadelphia,

[Evans and Wife v. Knorr, executor of Norton.]

Vice Chancellor, that these latter words used in the residuary
bequest, did not give to her a separate estate ; stating as a rea-
son, "that the testator, as to tho same person* with respect to
another gift, had appointed a trustee and expressly directed the
application of it to her sole and separate use; he knew therefore,
the technical form of excluding the right of the husband," and
his Honour said, " he could not infer that as to the residuary
bequest, the testator intended what he had not expressed."
The case of Roberts v. Spicer, 5 Madd. 491, (American Ed. 298,)
was ruled in the same way upon the same principle or rule of
construction.

Now it appears to me, that whether we regard the rules that
have been applied to the construction of wills, or the intention
of the testator himself, as our polar star, we cannot undertake
to decide that it w r as certainly the intention of the testator to
give the legacy of one thousand dollars to George Knorr, for
the sole and separate use of his daughter, Mrs. Evans. The
intervention of the trustee of itself, as we have seen, is not suf-
ficient for that purpose. The rule of law is clearly in favour of
the husband, that a gift or bequest to the wife, is in effect a gift
or bequest to the husband, and he cannot be deprived of it with-
out an unequivocal intention manifested by the donor or the tes-
tator, that he is to have no interest or part in it. The testator
has shown us here from the manner in which he has disposed
f*74l *^ ^ ie ^ anc ^ an( ^ g 00 ^ 8 i n favour of his daughter to her
' sole and separate use, that he knew perfectly well how to
declare and set it forth in such legal, precise, and technical form,
as to render it impossible to raise even a cavil against it ; but
when he comes to give the thousand dollars, he leaves out the
important and definite terms "sole and separate," which he had
before so carefully inserted with respect to the land and the
goods. No other rational motive can be assigned for this, but
design on the part of the testator.

But even if it were doubtful, whether he intended this money
for her sole and separate use, still the husband is entitled to it.
The circumstance of the testator's giving it to the trustee, and
not directly to the husband or the wife herself, is not a sufficient
reason to authorize us to declare that he intended it for her sole
and separate use. Torbert and Twining, was a much stronger
case than the present in favour of the wife's sole and separate
claim. For there the testator had first made his will, giving the
property directly to the wife herself, and afterwards made a
codicil, by which he gave it to trustees for her use, benefit, and
behoof, without making any other apparent alteration of his will.
It is highly probable, that by this alteration, he thought he had
put the property beyond the control of the husband, and secured
80



4, 1833.] OF PENNSYLVANIA. 74

[Evans and Wife v. Knorr, executor of Norton.]

it for the separate use of the wife; or why should he have given
himself the trouble of making the change that did not alter the
effect, unless for the purpose of excluding the husband from all
participation in the enjoyment of it? But then this is not to be
considered a sufficient manifestation of the testator's intention
to defeat the husband of his marital rights. In the present case,
the trustee was introduced in the first instance, and the use that
is made of him in respect to the land and the goods, shows to
demonstration almost, that the testator understood perfectly
what he was doing, and what the law required on this subject ;
and that when he intended to give for the separate use of the
wife, it was necessary in order to have his intention carried into
effect with certainty, to declare expressly, that it was for her sole
and separate use, but when he did not so intend, it was sufficient
to omit these exclusive and technical words. And this derelic-
tion of them, repels all presumption that might otherwise have
arisen in favour of the wife'e separate use, from the circum-
stance of giving it to the trustee.

Judgment for the plaintiffs.

Cited by Counsel, 1 Wh. 101, 181 ; 2 Wh. 15 ; 10 Barr, 222 ; 7 C. 232 ; 18 S.
328 ; 29 S. 30 ; 1 N. 95 ; 11 W. N. C. 184.

Cited by the Court, 1 Wh. 23, 264 ; 5 Barr, 387 ; 3 H. 499.



*[PHILADELPHIA, FEBRUARY 4, 1833.] [*75]

Neide against Neide.

APPEAL.

Testator devised as follows: "Principally and first of all, I give and be-
queath to my eldest son, J. N., my late purchase from E. C., as also four acres
of woodland being in a corner," &c. The land purchased from E. C., was
purchased in fee simple, and held, that a fee passed to the devisee, both in the
land purchased from E. C., and in the four acres of woodland.

THIS was an ejectment for land, in Delaware county, brought
by Joseph Neide against Jacob Neide. On the trial of the cause
in the Circuit Court of that county, the following case, in the
nature of a special verdict, was stated for the opinion of the
court :

"Joseph Neide, the elder, being seized of the premises men-
tioned in the declaration, (about twenty-eight acres eighty-eight
perches,) duly executed his last will and testament, written by

VOL. iv. 6



75 SUPKEME COURT [Philadelphia,

[Neide v. Neide.]

his own hand, on the 19th day of May, 1796, which was duly
proved and recorded on the 29th of September, 1798, (prout the
said will as follows :)

"In the name of God, Amen. I, Joseph Neide, of Delaware
county, in the state of Pencilvania, being in perfect helth of
body and sound mind and memory, thanks be to God, therefore,
do this nineteeth day of May, in the year of our Lord Christ
one thousand seven and ninety-six, make and publish this my
last will and testament in manner following, to wit : principally
and first of all, I give and bequeath to my eldest sou, John
Neide, my late purches from Elizebeth Claxton, as also, four
akers of woodland, being a corner, lying between the Bristo
field and Sharplesis' land, further, I give to my son, John Neide,
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 the side of
said mash, as allso, I give and beqeath to my sou John, one hors
and one cow. Secondly, I give to my daughter Mary, the sum
of one hundred pounds, to be paid out of my estate at different
times within the space of five years after my deceace. Thirdly,
I give to my daughter Rebecka, the sum of eighty pounds, to
be paid in eight years, at ten pounds a year. Fourthly, I give
and bequeath to my daughter Elizebeth, the sum of one hundred
pounds, to be paid in eighteen months after my deceace. Fifthly,
I give and bequeat to my daughter Abegal, the sum of fifty
pounds, when she shall arive at the age of twenty-one years, and
if she should die before that time, to be divided among the
living. Sixtly, I give to my son Jacob, the sum of fifty
pounds, to be paid to him in one month after my deceace.
I~*7fi1 *Seventhly, I give and bequeath to my son Benjamin,
' twenty akers of land, to be taken in the Bristo field, to
begin at William Swaffers' line, and running from thence by the
percimen tree to the great road. Eightly, I give to my gran-
daughter, Elizebeth Evans, hur maintainnance til she shall arive
to the adge of eighteen years, to come out of my estate by my
executor. Ninthly, I give to each of my granchildren, of my
daughter Sarah, one silver dollor a peace.

" Farther, I give and bequeath to my mulatto boy Tom, the
sum of five pounds, to be paid by my executor.

" And I do give and bequeath the remainder of my lands not
heiretofore 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 remainder to be equealy devided amongst the survivors,
and further, I do constitute and appoint my son, Joseph Neide,
sole executor of this my last will and testament, hereby revoking
82



FebA, 1833.] OF PENNSYLVANIA. 76

[Neide v. Neide.]

all other wills and testaments hereunto by me maid. I witness
whereof, I have hereunto set my hand and seal.

JOSEPH NEIDE, [L. s.]

" Signed, seald, published, and declared in presence of William
Kerlin, John Caldwell, Pierce Powers."

"Joseph Neide, the elder, died in the year 1798, and John
Neide, took possession of the premises laid in the declaration.
fie died in possession on the 24th of September, 1830.

" Joseph Neide, the younger, mentioned in the will of the
testator, died in the year 1806.

" The plaintiff is the only son of Joseph Neide, the younger,
who entered into possession, under the will of his father, of
between two and three hundred acres of laud in the township
of Chester, not being the same land mentioned in the decla-
ration .

" ' The purchase/ made by Joseph Neide, the elder, of Eliza-
beth Claxton, was of twenty-three acres and sixty-two perches,
in fee simple; as per deed of 16th June, 1785.

" John Neide, by his last will, dated 24th of September, 1830,
devised to the above defendant, all his estate, real and personal,
in fee simple.

" Joseph Neide, the elder, at the time of his death, had eight