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EVANS v. JAMES.

Where a testator, after giving a life estate in his plantation to his wife, devised as follows: "I give to my oldest sons, R. and D., my plantation, etc., 320 acres on the river to R., and 320 acres to D., and they to put to school my two youngest sons, and to school them at their charge," it was held that the charge being such that the devisees would sustain a loss by paying it, supposing them to have only a life estate, they should therefore take a fee; particularly as the testator by giving his wife an estate for life showed that he knew how to limit a life estate when he intended it.

HALL, J.

Let the jury give a special verdict. [They did so, and afterwards he delivered his opinion.] If the charge is such that the devisee may sustain a loss by paying it, supposing him to have a life estate only, he shall in such case take a fee. Especially in a case like this, where, intending an estate for life to the mother, he expressly limits a life estate, which shows he knew how to limit for life when he intended it.

NOTE. — By the act of 1784 (1 Rev. Stat., ch. 122, sec. 10), passed subsequent to the date of the above will, all devises are to be construed to be in fee simple, unless otherwise plainly expressed.

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EVANS v. JAMES
(Jan 1, 1801)