in the absence of a disposition of it by the testator, would be rendered nugatory, and it would therefore be absurd to suppose that the testator meant to devise the land to his heir at the death of A, and yet that the heir should have it in the mean time. But no such implication arises where the devise is to a stranger after the death of A; for in such a case it is. possible to suppose that the testator meant the heir to take the land during the life of A, and therefore an intention to give a life estate to A cannot be supposed. And this, says Jarman, is an exact illustration of the difference between necessary implication and conjecture.

According to Lord Mansfield, necessary implication is that which clearly satisfies the court what the testator meant by the words used. It is the opposite, he said, of conjecture, and leaves no room to doubt: Wilkinson v. Adam, 1 Ves. & B. 466; Jones v. Morgan, cited in 4 Bro. C. C. 460; Hawkins on Wills, 5. Redfield lays it down that, in order to create a devise or legacy by implication, it must not be a case of mere slight probability, but something in regard to which most men would not be expected to raise any question. It must not rest upon conjecture. Neither is it required that the inference should be absolutely irresistible. It is enough if all the circumstances, taken together, leave no doubt in the mind of the court. The words of the will, he adds, must admit of no other implication: 2 Redfield on Wills, 203.

In Cruise's Digest, title Devise, chapter 10, section 19, it is said: "The courts have in some instances allowed a devise by implication, where it has been very apparent, in order to support and effectuate the intention of the testator; but in cases of this kind the implication must be a plain and not merely a possible or probable one; for the title of the heir at law being plain and ovious, no words in a will ought to be construed in such a manner as to defeat it, if they can have any other signification." See also 3 Lomax's Digest, 148; Bac. Abr., tit. Wills, G; 2 Minor's Inst. 969; Schouler on Wills, sec. 479; Wright v. Hicks, 12 Ga. 155; 56 Am. Dec. 451; Wilkins v. Allen, 18 How. 385; Bradford v. Bradford, 6 Whart. 244; Fitch v. Weber, 6 Hare, 145.

The doctrine of devises by implication was very fully considered in Boisseau v. Aldridges, 5 Leigh, 222; 27 Am. Dec. 590. In that case, the decedent left a written instrument, as follows: "Not having made any will so as to dispose of my property, and two of my sisters marrying contrary to my wish,

should I not make one, I wish this instrument to prevent either of their husbands from having one cent of my estate, - say the husbands of my two sisters, Martha Aldridge and Dorothy Aldridge, nor either of them to have one cent, unless they should survive their husbands; in that case, I leave them, to be paid out of the collection of any of my moneys, five hundred dollars each. Given under my hand and seal," etc. And. on the paper was indorsed the following: "Memorandum to prevent Bennett Aldridge and Burwell Aldridge from having any part of my estate, that each might claim in right of their wives, without a will made by me."

It was argued by Messrs. Johnson and Leigh that, excepting the two contingent legacies, this writing was a devise and bequest by implication of the whole of the testator's estate to those persons who would take according to the statutes of descents and distributions, other than the two sisters and their descendants. The latter, they insisted, could have been excluded for no other purpose than to give the estate to others, and that if the testator did not mean that, he meant nothing.

But this view, though pressed upon the court with great .earnestness and ability, was not adopted, and the decree of the lower court was affirmed, which declared that the right of a person to disinherit his heirs, or any one of them, exists, not as an abstract substantive power, but as the consequence of the power to leave his estate to others; that the paper in question was not a devise or bequest by necessary implication, and that it was evidently executed under the erroneous impression that if its author declared his intention to exclude his two sisters, the law would dispose of his estate among his heirs and next of kin, to the exclusion of the sisters mentioned therein.

It is true that two of the judges who delivered opinions in that case were of opinion that the instrument itself furnished internal evidence that it was not intended by the decedent to operate as a will any further than the contingent legacies therein bequeathed; but the principle that a man can disinherit his heirs only by unmistakably giving his estate to somebody else was none the less emphatically asserted. To hold otherwise, it was said, would give to a testator the power to repeal the statute of descents and distributions, so far, at least, as it affects his own estate.

It was also held that if in every case in which a testator declares an intention to exclude his heirs, or any one of them, it is to be implied from that alone that he intends to devise

away his estate from such excluded person or persons, the principle that, to disinherit his heirs, he must give his estate to somebody else would be of no consequence, since it would give effect to the simple disinherison by holding it tantamount to a positive disposition.

Another analogous principle affirmed in that case, and which is very material to the present, is this: That while the intention of the testator, when consistent with the rules of law, is the polar star to guide the judicial expositor of a will, yet his intention to dispose of his estate must be indicated with legal certainty, otherwise effect as a will cannot be given to the instrument; the true inquiry being, not what the testator meant, but what the words used import.

Judge Brooke, in his opinion, said: "When a testator has devised his estate by will, and is not precise as to the persons who are to take, or as to the quantity of estate they are to take, from necessity, and to effectuate his intention to dispose of his estate, and not to leave it to the law to dispose of, courts imply his intent as to persons, and the quantity of the estate they are to take. But when the question is, whether he intended to devise his estate or not, we are not authorized to imply that he does, unless it is a necessary inference from the language he uses."

He then referred to the case of Denn v. Gaskin, Cowp. 657, in which the testator gave his heir at law a disinheriting legacy, as it is called (i. e., he gave him ten shillings), and then gave his nephews real estate, without adding words of inheritance. He began his will thus: "As to all such worldly estate as God had indued me with," etc., and the question was, whether, by necessary implication from these words, and the intended exclusion of the heir, the life estate given the nephews was enlarged into a fee. Lord Mansfield held that it was not, although he said he suspected extremely that the testator meant to give the devisees an estate in fee, as he had no other landed property, and had made them residuary legatees of his personalty, and had disinherited the heir; but that if he did mean it, the misfortune was, that quod voluit non dixit. And he added the remark, already quoted from his opinion, namely, that, though the intention is ever so apparent, the heir at law must of course inherit, unless the estate is given to somebody else. Accordingly, it was held that the fee, being undisposed of, descended to the heir, notwithstanding the intention of the testator to disinherit him; just as in Boisseau v.

Aldridges, 5 Leigh, 222, 27 Am. Dec. 590, the two excluded sisters were held entitled, not only to their contingent legacies, but to share in the residue of the estate as to which the testator died intestate, because, as was said, the statute gives the power to devise, and not in any other way to disinherit.

In Wootton v. Redd's Ex'r, 12 Gratt. 196, Judge Lee, speaking for the court, announced the same doctrine. He said: "Conjecture cannot be permitted to usurp the place of judicial conclusion, nor to supply what the testator has failed to sufficiently indicate. The law has provided a definite successor to the estate in the absence of a testamentary disposition, and the heir is not to be disinherited, unless by express words or necessary implication." The courts must therefore declare, if they can, he continued, "what intention the testator has expressed with sufficient legal certainty, not the intention which he may have entertained, but which he has failed sufficiently to manifest"; citing Guy v. Sharp, 1 Mylne & K. 589, 602; Martin v. Drinkwater, 2 Beav. 215. See also Hatcher v. Hatcher, 80 Va. 169; Senger v. Senger's Ex'r, 81 Va. 687; Sutherland's Ex'rs v. Sydnor, 84 Va. 880.

Let us now apply these principles to the present case. The paper in question is as follows:

"I, Hiram Coffman, of Rockingham County and state of Virginia, do make and ordain this to be my last will and testament, hereby revoking all other wills heretofore by me made. It is my will that my son, William H. Coffman, be excluded from all of my estate at my death, and have no heirship in the same, he having become the heir to his mother's interest in her father's estate, and I, his guardian, have paid him, and am now about to make a final settlement with him, which will make as much to him, and probably more, than my estate will pay to each of my other legal heirs. In witness of this being my last will and testament, I hereunto set my hand and annex my seal this the tenth day of March, 1877.

"HIRAM COFFMAN. [Seal.]"

Now, this paper is certainly in the form of a will, and was declared by the decedent to be his will, and his intention to exclude his son, William, the appellant here, is as plainly manifested as it well could be. But is it in substance a will? Does it dispose of anything? The circuit court held that by implication it does. But is such a conclusion a necessary implication from the words used? Can the words be said to have

no other signification? Taken together, do they clearly satisfy the mind, leaving no room to doubt, that the decedent meant to dispose of his estate? We think not. On the contrary, fairly construed, the instrument simply revokes all other wills theretofore made by the decedent, and excludes the appellant, giving the reason therefor. That is all; and to hold that it amounts to anything more would render futile the principle that a man can disinherit his heirs only by giving his estate to somebody else, and, by carrying too far the doctrine of devises by implication, would, by judicial construction, make a will for the decedent that he has not made for himself.

The record presents the case of a man who has a valuable estate and a wife and five children, -a son by his first marriage, another son by his second marriage, and three children by his third and last marriage. All his children are equally near and all, presumably, are equally dear to him. The eldest son has already inherited property, equal in value, we will say, to one fourth of his father's estate. Accordingly, the father, wishing to do what he considers justice to all his children, writes a paper, which he calls a will, and in that paper he says in substance that he wishes to disinherit his eldest son; and then, lest his motive be imputed to a want of parental affection (we will assume), he goes on and gives the reason for wishing to exclude him, and there he stops. He does not say his "other legal heirs" are to have the estate, but that his eldest son is not to have any part of it. And from this we are asked to imply that he intended to give, and consequently, as a legal conclusion, to hold that he did give, the whole of his estate to his other children; in other words, to hold that the reason assigned for wishing to exclude one of the children operates a disposition of the estate to the other children.

But this view is contrary to the plainest principles of the law, as we have already seen; for the question is, not what the decedent intended, but, What has he said? Not what he may have thought would be the result of what he wrote, but, What is the legal effect of the paper? And although he may have intended to dispose of his estate, yet if he has not said so with legal certainty, we cannot alter or add to his words; but our judgment must be, as Lord Mansfield's was in Denn v. Gaskin, Cowp. 657, Quod voluit non dixit; for we sit here, not to make wills, but to construe them; not to make law, but to administer it.

It is quite probable the paper was written by the decedent