Joseph McKenna

“ It is there said: 'The rule of law which gives a fee where the devisee is charged with a sum of money is a technical dominant rule, and intended to defeat the effect' of the artificial rule established in favor of the heir at law, that an indefinite devise of land passes nothing but a life estate. It was, however, apparent to the court of appeals that to follow King v. Ackerman would not execute the intention of the testator by opposing one technical rule by another, but would discriminate between his heirs, and destroy the equality between them which it was the purpose of the will to create. ”

“ In other words, the very heirs for whom the rule is invoked are those among whom he distributed his property, and surely he intended a complete distribution,-to vest in each the largest interest he could give, not assigning life estates with residuary fees to the very persons to whom such life estates were devised. In other words, making each heir the successor of the other and of himself. ”

“ She is given a greater quantity of real estate than the other devisees. She is given personal property besides; 'But,' declared the testator, 'she is to pay funeral expenses and other legal debts I may owe, also to care for my lot in Mount Olivet Cemetery.' That charge was not intended to enlarge the quantity of interest in the real estate devised in the sense contended for, but to make an equality between her and the other heirs and devisees, and, we repeat, that was his especial purpose. ”

“ But, perhaps, even the severe technicality of those cases need not be questioned. In the construction of wills we are not required to adhere rigidly to precedents. We said in Abbott v. Essex Co. 18 How. ”