To George Gilmer
Paris Dec. 16. 1788.
Your last letter of Dec. 23. was unlucky, like the former one, in arriving while I was absent on a call of public business in Holland. I was discouraged from answering the law part of it, on my return, because I foresaw such a length of time between the date of that and receipt of the answer, as would give it the air of a prescription after the death of the patient. I hope the whole affair is settled and that you are established in good titles to all the lands. Still however, being on the subject, I cannot help adding a word in answer to the objection which you say is raised on the words ‘the estate’ instead of ‘my estate.’ It has long been confessed in the courts that the first decision that a devise of lands to a person without words of inheritance should carry an estate for life only, was an absurd decision, founded on feudal principles, after feudal ideas had long been lost by the unlettered writers of their own wills; and it has often been said that were the matter to begin again, it should be decided that such a devise should carry a fee simple, as every body is sensible testators intend by these expressions. The courts therefore circumscribe the authority of this chain of decisions, all hanging on the first erroneous link, as much as possible; and they avail themselves of every possible circumstance which may render any new case unlike the old one, and authorize them to conform their judgments to common sense and the will of the testator. Hence they decide that in a devise of ‘my estate at M.’ to such a one without words of inheritance, the word estate is descriptive of the duration of the interest bequeathed as well as it’s locality. From the same desire of getting back into the paths of common sense, they would not suffer the particle ‘the’ instead of “my” to make a difference. ‘My estate at M.’ means not only my lands at M. but any feesimple in them. ‘The estate at M.’ means not only ‘the lands the testator holds at M. but the feesimple he holds in them.’ Another objection will be made perhaps, viz. that the testator devises in the same clause ‘his estate called Marrow- bone, his tract called Horse-pasture, and his tract called Poisoned feild’; that it is probable he intended to give the same interest in all; and as it is confessed that the word tract conveys but an estate for life, we must conclude that the word estate was meant to convey the same. I should reverse the argument and say, as it is confessed the word ‘estate’ conveys an estate in feesimple, we must conclude the word tract was meant to convey the same; that this conclusion coincides with the wishes of the courts as bringing them back to what is right and consentaneous to the intention of the testator, as furnishing them a circumstance to distinguish the case from the original one and withdraw it from it’s authority; whereas the contrary conclusion tends to lead them further from the meaning of testators and to fix them in error.—But I perceive that my wishes to see the weight of no objection where you are interested, is leading me to write an Argument, where I had promised I would say only a word. I will therefore talk the subject over with you at Monticello or Pen-park. I have asked of Congress a leave of 5. or 6. months absence next year, that I may carry my daughters home, and assist in the arrangement of my affairs. I shall pass two of those months at Monticello, that is to say, either June and July, or July and August, according to the time I may sail, which I hope will be in April: and then go on to New York and Boston from whence I shall embark again for Europe so as to get here before the winter sets in. I look forward with great fondness to the moment when I can again see my own country and my own neighbors, and endeavor to anticipate as little as possible the pain of another separation from them. I hope I shall find you all under the peaceable establishment of the new constitution, which, as far as I can judge from public papers seems to have become necessary for the happiness of our country. I thank you for your kind enquiries about my wrist. I followed advice with it till I saw visibly that the joint had never been replaced, and that it was absurd to expect that cataplasms and waters would reduce dislocated bones. From that moment I have done nothing. I have forever lost the use of my hand, except that I can write, and a withered hand and swelled and crooked fingers still remaining 27. months after the accident make me fear I do not yet know the worst of it. But this too we will talk over at Monticello, and endeavor that it be the only pain to which our attention may be recalled. Adieu, my dear friend, kiss and bless every body for me, Mrs. Gilmer especially. Assure her and yourself of the sincere and constant attachment of Dear Doctor your affectionate friend & servt.,