Reports of cases argued and decided in the Supreme Court of the State of Texas during Austin session, 1858, and part of Galveston session, 1859. Volume 22. Page: 345
The following text was automatically extracted from the image on this page using optical character recognition software:
1858.] BELL COUNTY v. ALEXANDER. 358
It is a familiar doctrine, that in the construction of a will,
the intention of the testator is the first and great object of inquiry;
and the law will not suffer the intention to be defeated,
merely because the testator has not clothed his ideas in technical
language. Our statute, like that of New York and many
of the other states, has swept away, as Chancellor Kent has
expressed it (4 Kent Corn. 537), all the established rules of
construction of wills, in respect to the quantity of interest
conveyed,  by declaring, that "every estate in lands
which shall hereafter be granted, conveyed, or devised to.one,
although other words heretofore necessary at common law to
transfer an estate, in fee simple, be not added, shall be deemed
a fee simple, if a less estate be not limited by express words,
or do not appear to have been granted, conveyed or devised,
by construction or operation of law." Hart. Dig. art. 169.
It cannot be doubted, that by employing the words, c" I wish
the county in which I die and am buried, to have and enjoy,
for the benefit of public schools, two-thirds of the land in the
county I am buried in," taken in connection with the words
" my land," and "the land I own," used in other parts of the
will, and in the context, the testator meant to devise an estate
in lands; and as there are no words in the will, indicative of an
intention to devise a less estate, the devise must be held to
pass an estate in fee, or the whole estate of the grantor. Hart.
Dig. art. 168. Indeed, it is plain, that a less estate could not
have been intended, because the trusts with which the testator
has sought to charge his lands and the acts which, by his
will, he has required to be done, could not be performed, unless
an estate in fee simple be taken by the devisee. It is a
rule of construction of the common law, independently of the
statute, that in every case, where land is charged with a trust
which cannot be performed, or where the will directs an act to
be done, which cannot be accomplished, unless a greater estate
than one for life be taken, it becomes necessary that the devise
be enlarged to a fee. .4 Kent. Com. 540; Collier v. Walker,
6 Code R. 16; Doe v. Woodhouse, 4 Term, 89. But the necessity
of resorting to this rule of the common law no longer
Here’s what’s next.
This book can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Book.
Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during Austin session, 1858, and part of Galveston session, 1859. Volume 22., book, 1882; St. Paul, Minn.. (https://texashistory.unt.edu/ark:/67531/metapth28552/m1/343/: accessed March 1, 2021), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .