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the same devisee, her heirs and assigns, yet it was held LAMBERT'S not sufficient to carry the fee. Lord Mansfield says, "the rule of law is established and certain, that express words of limitation, or words tantamount, are necessary to pass an estate of inheritance. All my estate, or, all my interest, will do; but, "all my lands lying in such" a place, is not sufficient. Such words are considered as merely descriptive of the local situation, and only carry an estate for life." The same principle is laid down in Gilbert on devises, 24. Thus, we find that the intention of the testator must be sought by fixed rules, and when found, it must not only be sufficiently proved to satisfy the conscience of the court, but must be coupled with apt and sufficient words to pass a fee. See the case of Frogmorton v. Wright, 3 Wil. 418, which is a strong case for the plaintiff. So is also the case of Chester v. Painter, 2 P. Will. 335. In the case of Fletcher v. Smiton, 2 T. R. 656, the words were all my estates," and the decision was upon the ground of an intention clearly appearing to dispose of his whole interest. There is nothing in the present case to show an intention of conveying a fee, unless it be the words "all the estate called Marrowbone, in the county of Henry, containing 2,585 acres of land." The testator does not, in the beginning of his will, as in most of the cases cited, declare an intention of disposing of all his estate and interest. There is a difference between the terms "all the es

tate" and "all my estate." The latter is certainly a more evident allusion to the degree of interest, than the former. The expressions "all the estate called Marrowbone" are clearly words of locality, and not of interest. What idea would a lawyer have of an estate called Marrowbone, containing 2,585 acres? Could he ascertain whether it was an estate for years, for life, or in fee? Besides, the expression is coupled with two others which are most clearly descriptive of the thing, and not of the degree of interest. "Likewise one other tract of land, called Horse-pasture; also one other tract, called Poison-field." Here, by the word " likewise," is implied that the testator meant to devise the same degree of interest in each of the tracts; and by the word " other," it is evident that he intended the former description as a description of a tract of land

LAMBERT'S as to locality only, and not of his degree of interest LESSEE in it. Having, in the first part of the sentence, used an

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equivocal word, and having, in the subsequent clause of the sentence, used synonimously a word which is certain in its meaning, and clearly descriptive of the thing, and not of the interest, it is fair to conclude that the equivocal meaning of the former, is explained and rendered certain by the latter; and that he meant no more by the word estate, than by the expression tract of land. It is a rule, that where words are used synonimously, the word most frequently used shall govern the sense. Here the term tract of land, is twice used as synonimous to estate; the former, therefore, ought to controul the sense of the latter. It is true, that "all my estate" has sometimes carried the fee; but to induce a departure from the general rule, the intention must be clear to pass a fee. The word, all," is coupled with a local description; it relates to the number of acres, and not to the degree of the testator's interest in the land. The word estate, as used in Virginia, is generally understood to mean a description of the property or thing, and not of the interest; and this court will respect the provincial meaning, to come at the true intention of the testator. It is not probable, and, therefore, is not to be presumed, that he would give his estate to a stranger, and disinherit his heir, who had given him this very estate; and it is to be observed, too, that he does not, in his last will, even mention his brother John, to whom, by the first will, he had given all his estate.

2. The second point is, that John Lambert, heir at law of George Harmer, is not an alien as to the citizens of this country, and is capable of taking the reversion by descent.

If he is incapable of holding lands in this country, it must be because he is an alien born. Is he such under the legal acceptation of the word alien? A definition of an alien is thus given in Calvin's case, 16 (a) 7 Co. "An alien is a subject that is born out of the ligeance of the king, and under the ligeance of another." Wood's Inst. 23. 1 Inst. 198 (b.) 1 Woodeson, 386. 1 Woodeson, 386. John Lambert, the lessor of the plaintiff, was born in England in

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the year 1750, under the allegiance of the king of Great LAMBERT'S Britain. At his birth he had inheritable qualities, of LESSEE which he can be deprived by one mode only, and that is the commission of a crime sufficient to work corruption of blood. 1 Bl. Com. 371. This is not pretended.Lambert was born within the ligeance of the king, the then common sovereign of this country and England; and, therefore, is not an alien born.

Those born under common allegiance may acquire and hold lands; and, in time of war, they may join the one, but must render service to the other, for the land.Bracton, b. 5, c. 24, fol. 427. (b.) 1 Hale, P. C. 68. Calvin's case, 27. (b.) 7 Co. The words of Bracton are, "Est etiam et alia exceptio quæ tenenti competit ex persona petentis propter defectionem nationis, quæ dilatoria est, et non perimit actionem, ut si quis alienigena qui [non] fuerit ad fic'em regis Angliæ, tali non respondeátur, saltem donec terræ fuerint communes, nec etiam sive rex ei concesserit placitare, quia sicut Anglicus non auditur in placitando aliquem de terris et tenementis in Francia, ita nec debet Francigena, et alienigena, qui fuerit ad fidem regis Franciæ, audiri placitando in Anglia.~ Sed tamen sunt aliqui Francigenæ in Francia, qui sunt ad fidem utriusque, et semper fuerunt ante Normanniam deperditam, et post, et qui placitant hic et ibi, ea ratione qua sunt ad fidem utriusque, sicut fuit W. comes Marreschallus et manens in Anglia, et M. de Feynes manens in Francia, et alii plures; et ita tamen si contingat guerram moveri inter reges, remaneat personaliter quilibet eorum cum eo cui fecerit ligeantiam, et faciat servitium debitum, ei cum quo non steterit in personâ." See also Calvin's ease, fol. 25. (a. and b.) 7 Co. A man born in the English plantations is a subject. Wood's Inst. 23. He that is born in the mother country must, a fortiori, be a subject, and capable of all the rights of a subject in the colonies. One of these rights is that of acquiring property. "All persons may convey, as well as purchase, except men attainted of treason," &c. "aliens born," &c. Wood's Inst. 233. 1 Inst. 42. (b.) But it has been proved that the lessor of the plaintiff is not an alien born; he, therefore, may purchase or take. If he once had an inheritable quality, or a capacity to take, and has not forfeited it by any crime, it follows that he has it yet. The separation of the colonies from England, could not, in law or Vol. III.

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LAMBERT's reason, deprive him of this right. Calvin's case, fol. 27. LESSEE (a. and b.) Calvin's case was shortly this: Calvin was

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born in Scotland, after the crowns of England and Scotland were united on the head of James the First. The question was, whether he could maintain an assize of novel disseisin of lands in England. The plea was, "that he was an alien, born at Edinburgh, within the kingdom of Scotland, and within the ligeance of the king of Scotland, and out of the ligeance of the king of England." One of the objections on the part of the defendants was, that, if postnati were, by law, legitimated in England, great inconvenience and confusion would follow, if the king's issue should fail, whereby those kingdoms might again be divided. But to this it was answered by the judges, that "it is less than a dream of a shadow, or a shadow of a dream; for it hath been often said, natural legitimation respecteth actual obedience to the sovereign at the time of the birth: For as the antenati remain aliens as to the crown of England, because they were born when there were several kings of the several kingdoms, and the uniting of the kingdoms by descent subsequent, cannot make him a subject to that crown to which he was an alien at the time of his birth, so albeit the kingdoms (which Almighty God of his infinite goodness and mercy divert) should by descent be divided, and governed by several kings; yet it was re-. solved, that all those that were born under one natural obedience, while the realms were united under one sovereign, should remain natural born subjects, and no aliens'; for that naturalization, due and vested by birth-right, cannot, by any separation of the crowns afterward, be taken away; nor he that was, by judgment of law, a natural subject at the time of his birth, become an alien by such a matter ex post facto. And in that case, upon such an accident, our postnatus may be ad fidem utriusque regis, as Bracton saith, in the aforementioned place, fol. 427." The present case is stronger than Calvin's. There the question was whether he had gained a right; but here it is whether he has lost one. The same rule prevailed when the Saxon heptarchy became united under the king of the West Saxons. Calvin's case, 23. (b.) And also with regard to the possessions held by the kings of England in France at various times, such as the dukedom of Acritain, and the earldoms of Poitiers, Normandy and Anjou. So with regard to the islands of Jersey, Guern

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sey, Man, Ireland, &c. Calvin's case, 19, &c. 1 Hale, LAMBERT'S P. C. 68, 69. Suppose a division of these states, it would follow, from the doctrine contended for by the opposite counsel, that people born in the same country, and under one common allegiance, would be aliens to each other.

The kings of England themselves did homage to the kings of France for provinces which they held, such as Normandy, Guienne, Brittany, &c. This was also the case with many of their subjects; as in the case of the Duke of Richmond, Duke D'Aubigny, &c. Hale, P. C. 68. Calvin's case, 27. (b.) In this country the personal services are dispensed with, but the land pays the common tax or duty.

Alenage is incident to birth only, 4 T. R. 308, Doe, ex dem. Duroure v. Jones.

It is not just or reasonable that a man should be punished without committing a crime, or for an act committed by a superior power which he could not controul. Suppose a secession of one of these states; would it be just that the citizens of the other states, holding property in that state, should forfeit it, or lose their rights?

The reasons of policy for prohibiting aliens from holding lands, are stated, in Calvin's case, 18. (b.) to be three. 1. The secrets of the realm might thereby be discovered. 2. The revenues of the realm should be taken and enjoyed by strangers born. 3. It should tend to the destruction of the realm. But none of these apply to the present case. Lambert lives out of the realm, and, therefore, canno: betray its secrets. The land will continue to pay the taxes, which, being the sinews of war, will preserve the realm. Besides, the case applying only to the antenati, is limited in extent, and its opera tion will be constantly diminishing, by failure of heirs, by alienations, by naturalization, &c.. The English, who understand the principles of the common law at least as well as we do, have allowed our citizens to inherit in similar cases. The cases of the Chichester estate, and an estate recovered by Mr. Boyd, and the Earl of Cassel's estate, are examples. A liberal policy should dictate a reciprocation of the same principle.

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