1788. is required by the construction in behalf of the respondent. The testator's offspring appear to be alike objects of his parental affection and providing care. Yet, what a needless, useless, and encumbering diversity of regulations is introduced, if Thomas took a fee simple, with an executory devise to Elizabeth; William a fee tail, with an estate for life, or fee tail limited to Francis; Ann a fee tail, with an estate for life, or a fee tail limited to Valiance; and John a fee simple, with an executory devise to Comfort?

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On the contrary, the construction in favour of the appellants, gives a sameness of arrangements, correspondent with the sentiments of the father towards his children. Each son took an unfettered estate, that is, a fee simple in the part devised to him; of if any son came to lawful age," he might dispose of his share as he pleased; if any son died, "before he came to lawful age," leaving issue, the estate went to that issue; but if any son died, before he came to lawful age, and without leaving issue, the estate went to the substitute. This, we believe, to have been the testator's design; and, we think, he manifested in it great prudence, and a paternal impartiality.

It has been observed, by the respondent's counsel, "that this ،، construction would carry the estate entirely from the descend“ ants of the testator into a strange family, and the respondent's "lessor would suffer the peculiar hardship of being stript of the " inheritance, though he is heir of the testator and of the de

It is impossible to calculate hardships of this kind, amidst the mutabilities of human affairs. It is to be remembered, that William Bagwell, the devisee and heir of the testator, was succeeded by his son William and this William by his two daughters. Thus the construction of the counsel for the appellants, allows a fee simple to the heirs of the testator and devisee for several generations. About fifty years ago, as appears from the records of the Orphan's Court, the mother of the respondent's lessor obtained a partition with her brother William the second, of the lands devised by the testator to William the first, their father, as of an estate in fee simple, and the lands assigned to her for her share are held under that partition to this day. It would have been thought at that time extremely hard, if it had been insisted, that William, the grandfather of the respondent's lessor took in fee tail the lands devised to him by this will, that, therefore, upon his death, the whole descended to his son William, and that his daughter Agnes was not entitled, under our intestate acts, to any part of so large an estate. Now, the complaint is directly reversed, and the construction that enured to the great benefit of the mother, is reprobated by the son claiming under her title. Yet f either of the daughters of William the second had issue surviving, the same interpretation of this will would now suit the respondent's

dent's lessor, that, heretofore, was so advantageous to his pa- 1788.

rent.

The true construction of a will is to be collected from the words; and is not to be affected by collateral circumstances; consequently, not by events subsequent, remote, uncertain, and utterly unconnected with the contingencies alluded to in the will. 3 Peere Will. 259. Salk. 232. 235. 3 Burr. 1581. This rule cannot be departed from. The security of property, and the order of society, depend on an observance of the laws.

Our construction of this will, appears to us, to be strengthened by three considerations, which we shall now mention.

1st. It is very credible, that when a person undertakes to make a will, he means to dispose of all his property; and, though we do not perceive any sufficient reasons why this well-founded presumption might not be generally adopted as a guide in the interpretation of wills, especially in devises to children and other lineal descendants of the testator, (2) where the gifts dictated by fatherly affection, as its last acts of kindness, may justly be deemed as designed to be the most beneficial to the objects of it, if no restriction is declared; yet, it must be acknowledged, that we do not recollect any case where it has been so adopted. Judges, however, have availed themselves of short and slight intimations in wills to this purport; have exerted themselves to render the disposition commensurate to the intention; and have particularly relied on such words as are used in this will, "for my worldly estate, &c." to prove, that the testator designed to devise all his interest in an estate. Cas. temp. Talbot, Ibbetson v. Beckwith. Tanner v. Morse, Bernardist. Tuffnill v. Page. Cowp. 355. 1 Wilson, Grayson v. Atkinson. 3 Burr. Throgmorton v. Holliday. This inference appears to be peculiarly apposite, where a question arises from various terms of limitation, or expressions tantamount, whether a devisee takes in fee simple, or in fee tail.

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The respondent's counsel, though strenuous advocates for their client's pretensions, have been too candid to assert, that the estate given to William, and, according to their idea, contracted to an estate tail, should, on failure of his issue, expand into a fee simple in Francis. They say, "Francis was to take the like estate "that was limited to William, that is, an estate tail." Of course, a reversion would remain undisposed of by the testator, contrary to his design, manifested, not only by the preamble of his will, but, also, by the conclusion of it, in which last he uses these words,

(2) A remarkable distinction taken between a devise to a child and a devise to a stranger, in Croke Eliz. Fuller against Fuller. In Moder Cases in Law and Equity, 132. it was held, that where a settlement is made by a lineal ancestor, in consideration of the marriage of his son, all the remainders to his posterity are within the consideration of that settlement: but when it is made by a collateral ancestor, after the limitations to his own children, all the remainders to his collateral kindred are voluntary. " all

1804. "all the rest of my personal estate I give, &c." This clause, we believe, never would have been restricted to "his personal estate,' if he had not been fully persuaded, that he had before disposed of all his real estate. Cowp. 307. 3 Burr. 1622, 1623.

2d. If it had been the intention of the testator, to give an estate tail to any of his sons, what reason can be assigned, why he did not use plain words for that purpose? He well knew even the technical terms for creating such an estate; and repeatedly employed them in limitations over to his daughters Elizabeth and Comfort, that to each of them being " to her and the lawfully begotten heirs of her body forever." But, such terms he never admitted in the devise to any of his sons, nor indeed to any of his unmarried daughters.

A case was quoted by the counsel for the respondent, from Pollexfen, to show, that where there is a variety of expression, there is a variety of intention. That case is very properly applicable here, for, difference of language, not otherwise to be accounted for, must certainly proceed from difference of meaning. 2 Wilson, 81.

3d. It is inconsistent with the testator's intention, to construe the devise to his son William to be a fee tail, because it is inconsistent with that meaning which he himself has affixed to the words of the devise. 2 Ab. Ca. in Eq. 298. 302. It is observable that the testator in the latter part of his will gives personal effects to the legatees" and their heirs forever." Though these words in such cases are not necessary; yet they incontestably show the donor's opinion of their force, and demonstrate his determination to give the most absolute estate he could give. The same was his determination, as he used the same words, in the devise to his son William, and therefore the son took a fee simple.

The judgment of the Supreme Court reversed.

FROM NEW-HAMPSHIRE.

July 1760.

Deering, Appellant, versus Parker, Respondent.

(1) THIS was ate the

HIS was an appeal from New-Hampshire, heard before a Committe of the Privy Council (Lord Mansfield being one of them) on the 10th of July 1760. The facts were these: One Parker had given a bond to Deering, payable the 30th of July 1735, conditioned for the payment of 24601. " in good pub"lic bills of the province of Massachusetts Bay, or current law"ful money of New-England, with interest." There had been many payments made, and indorsed. About the year 1752, the defendant tendered a large sum, in the bills of credit then current in New-Hampshire, which the plaintiff refused, brought his action, and recovered judgment for the penalty in the bond, upon the verdict of a jury, in December 1758. After which the cause was heard in the Chancery of New-Hampshire, and the Court decreed for the sum of 354l. 6s. 9d. in bills of credit of NewHampshire, new tenor, being the nominal sum due at the time of the tender, deducting the sums paid and indorsed. So that the Court went upon the principle, that the plaintiff should take the bills as tendered, and that the debtor was not bound to make good their depreciation, nor to pay in silver, or real money.

On the side of the appellant, or creditor, it was insisted, that the payment ought either to have been in bills of Massachusetts Bay (which, it seems, were all called in, and sunk, before the tender) or in silver money, agreeable to queen Anne's proclama

(1) This report is taken from a collection of manuscript cases, upon authority, that appeared respectable when it was copied; but the name of the reporter is forgotten.

1760. tion, which, they insisted, was the true meaning of that clause, or part, of the condition, to wit, current lawful money of NewEngland. It was, also, claimed by him to have all the sums indorsed, reduced in nominal sums down to the value of silver at the time of giving the bond, to wit, 27s. per ounce.

On the side of the respondent, or debtor, it was urged, that current money of New-England then meant, and was understood to be, indifferently, the bills of credit of any, or either of the New-England colonies, received in that colony in payments. That, therefore, the tender was in the specie contracted for, and that the sums indorsed were not only of course, upon that suppoSition, equal to the sums expressed; but that the creditor, by indorsing, had agreed to, and accepted of, so much as the same expressed, in real, as well as nominal sums.

The Lord PRESIDENT and Lord MANSFIELD expressed themselves fully in favour of the creditor's construction of the words, "current lawful money of New-England;" to wit, that it did not mean bills of credit of any colony, but the words were put in contradistinction thereto. Lord MANSFIELD farther added, that he was clear, on the one hand, that the sums indorsed ought to be allowed according to the nominal sums, so Indorsed, equal to the same sums of money mentioned in the bond, and that the plaintiff had no right to have the same, any way reduced or altered. On the other hand, his lordship thought that the tender was not good in any respect; for, not only because it was made in a species of currency different from that contracted for; but, also, because it was out of time, being many years after the time of payment was lapsed, and also without notice. "What (said his lordship) shall a man meet his creditor in the street unawares, and tender a debt to him! The chancery allows six months' notice of time and place to be given. The law of the province enabling the Court to turn itself into a Court of equity and to reduce the bond to the sum due by the auditem, was a very good thing; and what Sir Thomas Moore, in his time, laboured so hard to obtain an act of parliament for here. And because the Judges (with whom he had several conferences about the matter) were for retaining the old artificial way, he declared, that he would always grant injunctions in such cases. In the present case (his lordship continued) he was at no loss to determine, that the judgment ought to be reversed: but he was at a loss what rule to go in determining the quantum of the debt. Since the province bills contracted for, were called in and gone; with a desire to know the usage, he had inquired of Mr. I. a New-England gentleman (who had practised the law) and was informed that "when old tenor had been contracted for, it had been allowed to be tendered, although lepreciated in value, if the tender was made in season. That

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