WILLS. No. XIV. Will devising secure rent-charge. 7. AND as to the said term of ninety years, it is hereby declared that the same is so limited to the said (trustees), their executors, administrators and assigns, UPON TRUST that, in case any quarterly 545; 1 Roll. Abr. 626; Cro. Eliz. 833; Vaugh. 721; Gilb. Des. 110; Badger v. Lloyd, 1 Lord Raym. 523, 527; Smith v. Triggs, 1 Str. 487; Hurst v. Trust of ninety Winchelsea (Earl of), 2 Bur. 879.) This doctrine was, indeed, carried so far, years' term to that a devise to the heir for life, if there was no limitation over, would have been merely void, as his life estate would instantly have merged in the fee which descended upon him: (3 Leon. 26.) So also a limitation to the beir in fee, after an estate tail (Nottingham v. Jennings, 1 Salk. 234), or any estate for life limited to a stranger (Preston v. Holmes, 1 Roll. Abr. 626), would have been inoperative, and the heir would have taken by descent, and not under the will. In like manner also a devise to the heir and another person, as tenants in common, would have been void as to the heir, and he would have taken the moiety devised to him in precisely the same manner as if it had been left to descend upon him. And where lands were subjected by the will to a charge, with a devise over to the heir in fee, he would still, notwithstanding his estate was encumbered with the charge, have taken it by descent, and not by purchase: (Haynsworth v. Pretty, Cro. Eliz. 833; Clerk v. Smith, 1 Salk. 241; Allam v. Heber, Str. 1270: Emerson v. Inchbird, 1 Lord Raym. 728; Chaplin v. Leroux, 5 Mau. & Selw. 14; Doe d. Pratt v. Timins, 1 B. & Ald. 530.) And the law would have been the same, although from the circumstances of the case it might have been more beneficial, for the heir to have taken by purchase than descent: (Hedger v. Row, 3 Lev. 127.) And the rule applied equally to copyholds of inheritance as to freehold estates: (Lord Raym. 4, 8, 829.) Devise would have been effectual where a different estate was from what would have descended. But where a different estate was given by the will from that which would otherwise have descended upon the heir, the devise would then have been allowed to prevail, and the heir would have been in as a purchaser. As, for example, where a man devised to A. and B., his daughters and co-heirs in fee, who were given by devise under those circumstances held to have taken as purchasers; because, instead of the lands devolving upon them as coparceners, they were created joint tenants by the will with benefit of survivorship: (Bear's case, Leon. 112.) And although, as we have already seen, a devise to the heir and another as tenants in common will not prevent the heir taking the moiety so devised to him by descent, yet, if the devise had been to him and another in fee generally, or as joint tenants in fee (in either of which cases an estate in joint tenancy would have been created), the heir would have taken as a purchaser, because he would have taken a different estate from that which would have descended upon him, and transmissible in a different manner, viz., an estate in joint tenancy, subject to survivorship in a stranger. Also in some cases the devise was holden to be good in part and void in part; as where a man devised one moiety of Blackacre to B., his heirat-law in fee, and the other moiety to him in tail, in which case the heir would have been construed to have taken the fee as heir by descent in the one moiety, and the estate tail as a devisee in the other moiety: (2 Lord Raym. 830.) Whether the rule above laid down ought to extend to a testamentary appointment, does not appear to have been satisfactorily settled. In one case, indeed it appears to have been decided that the rule did not apply to a case of that kind: (Hurst v. Winchelsea, 2 W. Blackst. 187; S. C., 2 Burr. 872.) But the correctness of this decision has been much questioned, and it is doubtful whether it would have been followed, but the point has never since been determined. It appears, however, to have arisen in the case of Baldwin v. Sneyd (3 Bro. & Bing. 243), the opinion of the Court of Common Pleas, to which a case from Chancery was sent, being, that the will of a testatrix (the determination of whose coverture had enabled her to dispense with the power if she pleased), did not operate as an appointment, but took effect out of her ownership, and it became unnecessary to decide the question (see also 1 Jarm. Pow. Dev. 427, n. 2; 1 Hughes Pract. Sales, 459, 2nd edit.) WILLS. No. XIV. Will devising Testator's Mansion House, to Trustees. payment of the said annuity or yearly rent-charge, or any part thereof, shall be unpaid for the space of forty days next after any of the said quarterly days of payment (although no formal or legal demand shall be made), the said (trustees), their executors, administrators or assigns, shall from time to time, out of the rents and Manor, &c. profits of the said hereditaments and premises, or by leasing, mortgaging or selling the same, or any part thereof, for all or any part of the said term of ninety years, or by bringing actions against the tenants of the said premises, for the rents then in arrear, or by such other ways and means as shall seem expedient, raise and levy such sum and sums of money as shall be sufficient from time to time to satisfy such arrears of the said annuity or yearly rentcharge as shall be then owing, together with all such costs as my said wife or her assigns, or the said (trustees), their executors, administrators or assigns, shall incur by reason of such nonpayment as aforesaid, and shall apply the moneys so to be raised and levied in satisfaction thereof accordingly. AND, subject as aforesaid, shall stand possessed of the said hereditaments and premises, and of so much of the rents and profits of the same, as shall not be disposed of for the purposes aforesaid, UPON TRUST for the said (heir apparent), his heirs and assigns. (d) enactments. As the law formerly stood, therefore, the heir would never have taken by Alterations in purchase under his ancestor's will, where the interest devised to him would not the law effected have been inconsistent with that which would have devolved upon him in a due by recent course of descent, either as to the whole or as to part of the undisposed real property of such ancestor. In this respect the law is completely altered by the statute 3 & 4 Will. 4, c. 106, by the 3rd section of which it is enacted, "that when any land shall have been devised by any testator who shall die after the 31st day of December, 1833, to the heir, or to the person who shall be the heir of such testator, such heir shall be considered to have acquired the land as a devisee, and not by descent;" and so absolutely is the heir now construed to take as a devisee, that the assets will not be marshalled against him: (Strickland v. Strickland, 10 Sim. 374; see also Biederme v. Seymour, 3 Bea. 368. Previously to this enactment, the heir had been deprived of all the advantages Descents tolling he would have derived from the descent tolling or taking away a right of entry entries taken by an act passed in the same session (3 & 4 Will. 4, c. 27), which, after abolishing away by with some few exceptions, all real actions, enacts, "that no descent cast, dis- statute 3 & 4 continuance or warranty, that may happen to be made after the 31st day of Will. 4, c. 27. December, 1833, shall toll or defeat any right of entry or action for the recovery of land:" (sect. 39.) s. 39. (d) Where a term was created for the purpose of securing an annuity, raising Recent portions for children, or for any other purpose, it was the usual practice to pro- enactments vide that when these purposes were satisfied the term should cease. This proviso respecting is now rendered unnecessary by the recent statute 8 & 9 Vict. c. 112, which satisfied terms. WILLS. No. XIV. 8. I give and BEQUEATH unto my said son (heir apparent) all the household furniture, pictures, plate, china, glass, linen, books, wine and other liquors, fuel and housekeeping provisions, and all Mansion House, other moveable effects whatsoever, which shall be in or about my Testator's Manor, &c. to Trustees. said mansion house at the time of my decease, for his absolute use and benefit. [ADD HERE bequest of farming stock, &c., ut ante, testator's eldest No. XI., clause 3, p. 682.] Bequest to son of household furniture, &c. Bequest of leasehold estates to testator's eldest son. 9. I ALSO GIVE unto my said son (heir apparent) all that my leasehold estate called D, which I now hold of the dean and chapter of ——, for all the unexpired residue of a term of ninety years, and all my estate, interest, benefit and right of renewal therein, (c) TO HOLD to him, his executors, administrators and As to the effect a lease upon How affected by recent enactinents. enacts, that every term of years then subsisting, or hereafter to be created and becoming satisfied after the 31st day of December, 1845, and which, either by express declaration or by construction of law, shall after that day become attendant upon the inheritance or reversion of any lands, shall, immediately upon the same becoming so attendant, cease and determine as to the land upon the inheritance or reversion whereof such term shall become attendant as aforesaid: (sect. 2.) (c) Although previously to the Wills Act (1 Vict. c. 26), a general bequest of leaseholds would have comprehended all such leasehold estates as the testator was possessed of at the time of his decease, without reference to the time at which he became possessed of them, the law was otherwise in the case of a specific bequest of a leasehold estate, which, if the term was renewed subsequently to the will, would have been a revocation of the gift, unless some other terms beyond the specific disposition were annexed to the bequest from which an intent to pass the benefit of future renewals might reasonably have been inferred: (Abney v. Miller, 2 Atk. 593; Coppin v. Fernyhough, 2 Bro. C. C. 291; Rudstone v. Anderson, 2 Ves. 413; Hone v. Medcraft, 1 Bro. C. C. 261; James v. Dean, 11 Ves. 385.) But whenever the general words were sufficient to express that intent, then the renewed leases would have passed. Hence, whenever, as was almost universally the case, such was the testator's intent, it became the practice to add some general words to the specific description of the property by which that intention might be disclosed. As, for example, "all my right, title and interest therein," or "all benefit and right of renewal" (Abney v. Miller, sup.), or expressions to that effect, although a general description of personal estate annexed to the bequest would also have been sufficient to denote that intent: (Stirling v. Lydiard, 3 Atk. 599; Digby_v. Legard, 2 Dick. 500; James v. Dean, 15 Ves. 236; Colegrave v. Manby, 2 Russ. 238; S. C. 6 Mad. 72; Churchman v. Ireland, 1 Russ. & Myl. 251; Back v. Kett, Jac. 534.) Nor did the rule above laid down effect equitable interests in leaseholds, a renewal of which would have been no revocation: (Carte v. Carte, 3 Atk. 176; Marwood v. Turner, 3 P. Wms. 166; Attorney-General v. Downing, Amb. 572.) Neither would the effect of surrendering a lease for the purpose of renewal have had that effect; to have produced that operation, the renewed lease must have been actually executed: (Abney v. Miller, sup.) The cause of revocation in the above cases was the ademption or withdrawing the subject-matter of the gift; the renewed lease being treated as a new thing, was not comprehended in the specific description contained in the former dis WILLS. No. XIV. assigns, for his and their absolute use and benefit, for all the unexpired residue of the said term of years, and for all other my estate, term and interest therein. [ADD HERE general residuary devise of real and personal estate, upon trust for sale, with power to adjust accounts, refer to arbitration, give receipts, &c., ut Manor, &c. ante, No. II., clauses 1 to 7 inclusive, pp. 641 to 643.] Will devising Testator's Mansion House, to Trustees. position, but now, as a will, in the absence of a contrary intent appearing, is made to speak from the testator's death, and to take effect as if it had been executed immediately before the death of the testator, a renewed lease would pass under a specific bequest of that property made previously, if applicable to that property at the time of the testator's decease. No. XV. SHORT FORM OF A WILL, BEQUEATHING LEGACIES AND ANNUITIES, CHARGEABLE UPON PERSONAL ESTATE, WITH DIRECTIONS THAT A SUFFICIENT PORTION OF THE ESTATE SHALL BE INVESTED TO SATISFY THE SEVERAL ANNUITIES. THE RESIDUE TO BE DIVIDED INTO FOUR EQUAL PARTS: TWO-FOURTHS TO BE IN TRUST FOR THE CHILDREN OF A DECEASED BROTHER WHO SHALL BE LIVING AT HER DECEASE, WITH A CLAUSE SUBSTITUTING THE ISSUE OF A DECEASED CHILD IN THE PARENT'S PLACE. ALSO PROVISIONS FOR MAINTENANCE, &c. THE REMAINING TWO-FOURTHS TO BE INVESTED BY THE TRUSTEES, WITH POWER TO VARY SECURITIES, AND THE INTEREST TO BE PAID EQUALLY BETWEEN TESTATRIX'S TWO SISTERS DURING THEIR JOINT LIVES; AND AFTER THE DECEASE OF EITHER OF THEM, THE CAPITAL TO GO TO THE SURVIVOR. 1. Commencement, 2. Bequest of legacies, &c. 3. Bequest of two legacies of 1007. each. 4. Of the sum of nineteen guineas 5. Of a like sum to her coachman. servants. 9. To each of her three friends, and also to her solicitor, the sum of 2007., at the same time appointing them trustees and executors of her will. 10. Direction that legacies shall all be paid within six calendar months next after testatrix's decease. 11. Bequest of annuities. 12. Direction that trustees shall set apart a fund for the discharge of annuities. 13. Devise of residue to trustees, upon trust to divide the same into four equal portions. 14. Two-fourths upon trust for children of testatrix's deceased brother living at her decease. 15. Clause substituting children in 16. Provisions for maintenance and ing two-fourths; trustees to invest |