Lambert v. Paine. are similar to those of the present will, and refer to lands. In the case of Wilson v. Robinson, 2 Lev. 91; 1 Mod. 100 (25 Car. II., Anno 1672), the words were, "all my tenant-right estate at Brigisend, in Underbarrow," and it was held, that they passed the fee. This is the general rule of law, and is uniformly supported by the authorities from the year 1672 to the present time; except the case cited by the plaintiff's counsel, from 2 P. Wms. The case in 2 Lev. 91, is exactly like the present; the word lands is used in the same sentence, and in the same manner as in the present case. The word "estate," in wills, always means the interest, unless controlled by words of restriction. Words of locality will not restrain the force of the word estate. In the case of The Countess of Bridgewater v. Duke of Bolton, 1 Salk. 236; s. c., 6 Mod. 106, the words were, "all other my estate, real and personal, not otherwise disposed of by this my will, for to be given by him to his children as he shall think convenient, I solely trusting to his honor and discretion that he will give them such provision as will be necessary." “Et per HOLT, Ch. J., who delivered the resolution of the court, the rents pass by these words 'all my real and personal estate,' for the word estate is genus generalissimum, and includes all things real and personal, and the fee of the rents passes, at least, the whole estate of the devisor; for all his estate is a description of his fee. In pleading a fee-simple, you say no more than seisitus in dominico suo ut de feodo; and in formedon, or other action, if a fee-simple be alleged, you say cujus statum the demandant now has." And he held, "that devising all his estate, and *all his estate in such a house, was the same, and that all his estate in the thing passed in either case." [*111 The next case is that of Barry v. Edgeworth, 2 P. Wms. 323 (Anno 1729), which overrules the case of Chester v. Painter, cited by the plaintiff's counsel from 2 P. Wms. 235 (Anno 1725). In this case of Chester v. Painter, the court probably took the whole will together, and from the testator's having used the word heirs, in some of the devises, and omitted it in the devise in question, concluded, that it was not his intention to pass the fee. In the case of Barry v. Edgeworth, the words were, "all her land and estate in Upper Catesby, with all their appurtenances," and the Master of the Rolls held it to be decided by the case of The Countess of Bridgewater v. Duke of Bolton, 1 Salk. 236, and said, "the word estate naturally signifies the interest rather than the subject, and its primary signification refers thereto; and although the devise be of all her land and estate in Upper Catesby, this is not restrictive with respect to the estate intended to pass by the will, but only as to the land." "And as the word estate has been agreed and settled to convey a fee in a will, it would be dangerous to refine upon it; for then none could give any opinion thereupon." This case refers to that of Murry v. Wyse, 2 Vern. 564 (Anno 1706), where the words "all the rest and residue of his real and personal estate whatsoever," were held to pass a fee. S. C., Precedents in Chan. 264. In the case of Ibbetson v. Beckwith, Cas. temp. Talbot 157, the words were, "as touching my worldly estate, wherewith it hath pleased God to bless me, I give, devise and dispose of the same in the manner following." Then follow two devises of "estates," burdened with the payment of debts and legacies, which were admitted to carry a fee; after which came the devise in question: "Item, I give unto my loving mother all my estate at Lambert v. Paine. Northwith close, North closes, and my farm held at Roomer, with all my goods and chattels as they now stand, for her natural life, and to my nephew Thomas Dodson, after her death, if he will but change his name to Beckwith; if he does not, I give him only 207., to be paid him for his life out of Northwith close, North close, and the farm held at Roomer; which I give *112] her, upon my nephew's refusing to change *his name, to her and her heirs for ever." The question was, whether Thomas Dodson took an estate for life or in fee. The Lord Chancellor decreed that he took the fee; and said, that the word estate carries the fee, and that no case had been cited "to warrant the altering the known legal signification of it." See also Gilb. Devises 25. So, in the case of Bailis v. Gale, 2 Ves. 48 (Anno 1750), testator devised to his wife all that estate he bought of Mead, for so long as she shall live; and in another clause said, "I give to my son, Charles Gale, all that estate I bought of Mead, after the death of my wife." The Lord Chancellor said, that the word estate is admitted to be sufficient to make a description not only of the land, but the interest in the land; and he held that the fee passed to Charles. The case of Hogan v. Jackson, Cowp. 306, shows that the word estate is sufficient to pass all the interest of the testator in the thing devised. So, in the case of Loveacres v. Blight, cited from Cowp. 355, Lord MANSFIELDsays, "the word estate comprehends not only the land or property a man has, but also the interest he has in it." And in Denn v. Gaskin, Cowp. 659, he puts the words, "all my estate," as an example of an expression tantamount to words of limitation. See also the case of Hodges v. Middleton, Doug. 434, where the argument of counsel is strong to the same effect. All the subsequent cases refer to that of Barry v. Edgeworth, 2 P. Wms. 523, and none of them refer to that of Chester v. Painter, in 2 Ibid. 335. The case of Right v. Sidebotham, cited from Doug. 763, does not apply to the present case, as the words of that devise were, "all my lands, tenements and houses," and not all the estate, as in our case. The authority from Gilb. on Devises, p. 24, is answered by p. 25, and a reason why a fee did not pass in the case in p. 24, is, because the word estate was coupled with personalty. The case of Frogmorton v. Wright, cited from 3 Wilson 418, had no words descriptive of the testator's interest, and the case of Fletcher v. Smiton, cited from 2 T. R. 660, is a strong case to show that the word estates will carry the fee, unless restrained by other words, clearly showing a contrary intention. A description of the place cannot, in reason, restrict the operation of the word *estate, because, unless the place be named, you *113] cannot tell either what land, or what estate the testator meant to pass. But it is said, there is a difference between the expressions, "all my estate," and "all the estate," and that the former more clearly indicates the interest than the latter. Nothing but the refinement of ingenious men could find a diversity in these expressions. When a testator is disposing of his worldly affairs, it is his own property that he means to dispose of, and not that of another person. When, therefore, he uses the expression, the estate, it means the same as his estate. But this subtlety of construction was soon exploded in express terms. It was suggested by the counsel, in the case of Bailis v. Gale, 2 Ves. 48, but Lord HARDWICKE held, that it makes no difference which mode of expression is used. So, there was once an attempt. made to distinguish between the words "at" and "in," such a place; but Lambert v. Paine. this was overruled by Lord TALBOT, in the case of Ibbetson v. Beckwith, Cas. temp. Talbot 157. The word "at" was used in the case in 2 Lev. 91, and in the case before Lord TALBOT. But the word "in" was used in the case of Barry v. Edgeworth, 2 P. Wms. 523, yet the decisions in those cases were all the same way. From this chronological view of cases, it seems clear, that the word estate, in a will, carries the whole interest of the testator, unless there are other words clearly indicating an intention to give a less estate. No such words appear in the present will; hence it follows, that the whole interest of the testator was devised to the defendant. 2. But if Doctor Gilmer took only a life-estate, yet the lessor of the plaintiff is not entitled to recover. 1st. Because John Harmer stands before him in the first will; and if the doctrine of ante-nati is correct, it applies to him as much as to Lambert, and therefore, upon the death of Doctor Gilmer, the estate vested in John Harmer, who was the person last seised. But *the special verdict does not find Lambert to be the heir of John [*114 Harmer, but of George Harmer, which is wholly immaterial. If Lambert is not the heir of the person last seised, he cannot recover. For if the first devise to John Harmer took effect, the contingent devise to Lambert could not; and therefore, if the latter is entitled at all, it must be as heir of John Harmer, and not as devisee of George Harmer. Equitable estates are governed by the same rules as estates at law. George Harmer died in 1786; John Harmer died in 1793. Either John Harmer was an alien, or he was not. If he was not an alien, then he took under the devise, and it is not stated who was his heir. If he was an alien, then he was, or was not, competent to take as devisee. If competent to take, then the record does not state Lambert to be his heir. If he was was not competent to take under the devise, neither is Lambert, for the same reason. But if Lambert can take as devisee, so could John Harmer, and the lessor of the plaintiff must then show a title under him. The will states John Harmer to be the testator's brother, and Lambert to be his sister's son; but it does not thence, follow, that he was heir-at-law of John Harmer; for the sister might be of the half-blood. Everything must appear in the special verdict to complete the plaintiff's title; and upon the strength of his own title only can he recover. But the doctrine of ante-nati is not correct. The king, under whose allegiance the two were born, is the common bond which connects the inheritable blood. The English doctrine is, that a man can never expatriate himself, and hence, they have allowed our citizens, born before the revolution, to inherit to British subjects. But, by the revolution of 1776, and the declaration of independence, new relations took place. A new sovereignty was created, to which British subjects, not in this country at that time, never owed allegiance, and therefore, they can have no inheritable blood as to lands in this country. But it is said, that Lambert, if an alien, could take and hold, until office found. *If Lambert, as an alien, could take, so could John Harmer, [*115 and therefore, upon his death the inheritance devolved upon the commonwealth, without office. Co. Litt. 2 b; 1 Bac. Abr. 81. An alien can never take by operation of law, and therefore, a feme alien cannot be endowed, nor can an an alien be tenant by the curtesy. 1 Bac. Abr. 83. An Lambert v. Paine. alien purchaser may take and hold, until office found; and may protect himself against an ejectment, because no one who has not a better title, can recover against the possessor. But he cannot maintain an ejectment. If John Harmer took anything, it was the reversion in fee, subject to the lifeestate of Gilmer. If John Harmer died before Gilmer, then, upon the death of John Harmer, this reversion vested in the commonwealth. If Gilmer died before John Harmer, then, upon the death of the latter, the whole estate vested in the commonwealth. Then, as to the treaty of 1794. John Harmer having died in 1793, and the inheritance being, by his death, cast upon the commonwealth, it was not a subject within the meaning of the treaty. John Lambert did not, at that time hold the land, for it had gone to the commonwealth of Virginia. The treaty did not intend to divest a right actually vested in the commonwealth. Mason, in reply.-The word estate may mean the interest as well as the thing; but whether it is to have that sense annexed to it or not, depends upon the intention of the testator, collected from the whole circumstances of the case. All the facts found by the verdict are to be taken into consideration, to form a correct idea of the testator's intention. By the first, he clearly meant to give the fee to his brother and his heirs. The second will does not expressly revoke the first, and contains nothing which can be construed into an implied total revocation, unless the word estate conveys a fee to Doctor Gilmer. All the cases which have been cited, are governed entirely by the intention of the testator. Where the intention was to pass a fee, there the word estate has been adjudged sufficient to carry the intention into effect. The words "the estate called Marrowbone," in common acceptation, mean the tract of land called Marrowbone. They cannot necessarily mean the fee-simple, because the estate would still be called Marrowbone, whether the interest was for life or for years. *116] The case of Chester v. Painter, 2 P. Wms. 336, has not been overruled. It is consistent with all the other cases. It did not appear to be the intention of the testator to give the fee, and therefore, although the word estate was used, it was held, that the fee did not pass. This shows that the word estate is not alone sufficient. Where words may be used in a large or in a contracted sense, the true construction is to be sought only by the intention of the person using them. In the present will of 1786, there is no preamble stating it to be the intention of the testator to dispose of all his estate by that will; nor is there any residuary devise. As the first will is not expressly revoked, the two wills are to be considered as forming but one will. In such a case, the rule of construction is, that every clause shall be carried into effect, if possible. No repugnance shall be presumed, if the whole can stand together; and if one construction will reconcile the various parts, and another will make them repugnant, the former is to be adopted. To suppose, that the word estate, in the last will, conveyed the fee, would be to create a repugnance to the first will, and therefore, that construction is not to be given to the word, if it will bear another. It must be admitted, that it uay be used in two senses. In one, it means the thing and the interest; in the other, it means the thing only. The one may be termed the technical, and the other the Lambert v. Paine. common sense of the word. By giving it the latter construction, the two parts of the will can be reconciled, and therefore, that construction ought to be adopted. It is conceded, that the legal estate in the trustees cannot be set up against the cestui que trust. It ought also to be admitted, that this doctrine holds between those parties only; but as to everbody else, the trust and the legal estate remain separate, to support the trust. In such a case, the commonwealth cannot take by office found, but must sue in chancery to have the trust executed for its benefit. It will not be contended, that the trustees were not competent to take and hold the property in trust. The *devises to John Harmer and [*117 John Lambert were contingent. If the contingency has not happened, the trustees still hold, for the purpose of executing the trust, when the contingency shall happen. John Harmer died in 1793, before the contingency happened upon which his devise depended. Upon his death, John Lambert's right under the will accrued. He had a title under the trust; and the treaty of 1794 protects it. The treaty is a nullity, unless it protects such rights as this. If it protects only good and indefeasible titles, it is wholly useless, for such titles can protect themselves. But if any right vested in John Harmer, then the title of Lambert is good as his heir-at-law. For the jury have found him to be heir-at-law of George Harmer; but he could not be the heir of George, if John left any children; and if John left no children, then is Lambert heir to John. The conclusion is irresistible; as much so, as if the jury had found it. As to the objection that Lambert's mother might be sister of the half-blood, it would prevent him from being heir to George as well as to John. February 18th, 1805. This cause was again argued at this term by the same counsel, before CUSHING, PATERSON, WASHINGTON and JOHNSON, Justices. MARSHALL, Ch. J., having formerly been of counsel for one of the parties, did not sit, and CHASE, J., was absent. The argument took nearly the same course as before. Minor, for the plaintiff in error, in addition to his argument as already reported, contended, that the rule of the common law, which requires words of limitation to create a fee-simple, was never departed from, until after the statute of wills; and even then, the courts did not depart from, but only softened, the rule; and that only in cases where the intention was clear to pass the fee. Timewell v. Perkins, 2 Atk. 103. He then went into a minute examination of the following cases, viz: Beawes v. Blackett, Cowp. 240; Bailis v. Gale, 2 Ves. 48; Wilson v. Robertson, 2 Lev. 91; s. c., 1 Mod. 100; Countess of Bridgewater v. Duke of Bolton, 1 Salk, 236; Goodwin v. Goodwin, 1 Ves. 228; [*118 Tanner v. Morse, Cas. temp. Taib. 284; Tanner v. Wyse, 3 P. Wms. 295; Beachcroft v. Beachcroft, 2 Vern. 690; and Ibbetson v. Beckwith, Cas. temp. Talb. 157; and from the whole, deduced this principle, that the intention of the testator must be so clear as not to admit of a doubt; for if there is the smallest ground of doubt, the court will not disinherit the heir. He also cited the case of Markant v. Twisden, from Eq. Cas. Abr. 211, pl. 22, where it was held, that the words "all the rest and residue of my estate, chattels, real and personal,” carried only a life-estate; and the case of |