1 Vict. c. 26, 8. 24.

Leaseholds.

Arbitrary designations of real

estate.

"Heretofore mentioned."

Descriptions of money, stock, &c.

"My."

Where, however, a testator has bequeathed particular leaseholds, describing them as such, and has subsequently acquired the fee, the fee has been held to pass. (Struthers v. Struthers, 5 W. R. 809; Miles v. Miles, L. R., 1 Eq. 462; Cox v. Bennett, L. R., 6 Eq. 422.) See also Pierce v. Att.-Gen., 3 W. R. 612, where a subsequently-acquired freehold house was held not to pass under a gift of leaseholds and all other estate and effects.

Where a testatrix devised "all my Quendon Hall estates in Essex," and after the date of her will she acquired other estates in the same locality with those clearly comprised in the devise; it was held, that the afteracquired estates did not pass. The court said that the term was an arbitrary designation which had acquired a certain meaning in the mind of the testatrix, and could not be extended to other property to which she had not ascribed the arbitrary designation. (Webb v. Byng, 1 K. & J. 580.) It was said by Malins, V.-C., that the decision in this case entirely proceeded upon the failure of the evidence to prove that the after-acquired lands were an addition to the Quendon Hall estates. (L. R., 11 Eq. 554.) Where a testator devised his mansion and estate called Cleeve Court, with the appurtenances, upon certain trusts, it was held, that property acquired by him after the date of the will, and treated by him immediately before his death as additions to the Cleeve Court estate, passed under the particular devise. (Castle v. Fox, L. R., 11 Eq. 542. See also Strevens v. Bailey, 8 Ir. C. L. R. 410.)

As to the effect of the words " heretofore mentioned," &c., occurring in the description of the property, see Jepson v. Key, 2 H. & C. 873; 12 W. R.

621.

Devises have been held to pass after-acquired real estate, notwithstanding provisions which seemed to refer to personal estate only. (Stokes v. Salomons, 9 Hare, 75; O'Toole v. Browne, 3 El. & Bl. 572.)

It was observed by Wood, V.-C., "A gift of all my stock' would pass all stock to which the testator was entitled at the time of his death. But suppose the bequest were of all my stock which I have purchased,' that would make a considerable difference, and would, I think, be enough on the face of the will to show that the testator was defining the particular portion of property which he intended to give as being property then in his possession.' A will, made since the statute, contained the words "I hereby exonerate my sister from all claims in respect of money laid out by me in improvements of the estates in Scotland, and which money has, according to the laws of Scotland, been charged thereon:" it was held, that this exoneration only applied to money so charged at the date of the will, and not to money afterwards laid out and charged, nor even to money then laid out but afterwards charged. (Douglas v. Douglas, Kay, 400.) Again, it was said by Wood, V.-C., " When I refer to a particular thing, such as a ring or a horse, and bequeath it as 'my ring' or 'my horse,' it seems to me there might be considerable difficulty in saying that the 'contrary intention,' to which the act in its 24th section refers, does not appear on the face of the will; but when a bequest is of that which is generic-of that which may be increased or diminished, then, I apprehend, the Wills Act requires something more on the face of the will, for the purpose of indicating such 'contrary intention,' than the mere circumstance that the subject of the bequest is designated by the pronoun my."" A testatrix in 1850, bequeathed thus, "I give my New Three-and-a-quarter per Cent. Annuities." The testatrix, at the date of her will, was possessed of 3,0101. 37. 58. per Cent. Annuities; and, at the time of her death, she was possessed of 17,0107. like annuities: it was held, that the bequest comprised all the New 34 per Cent. Annuities which she had at her death. (Goodlad v. Burnett, 1 Kay & J. 341; and see Trinder v. Trinder, L. R., 1 Eq. 695.) But where a testator, possessed of 1,000l. guaranteed stock in the N. B. railway, bequeathed "my one thousand N. B. railway preference shares," and after his will sold his guaranteed stock, and subsequently acquired, by various purchases, other shares and stock in the N. B. railway; it held that nothing passed by the bequest. (Re Gibson, L. R., 2 Eq. 669.)

A bequest" of my stock in trade and debts accruing therefrom" was held to pass the testator's stock in trade and trade debts existing at the time of his death. (Ferguson v. Ferguson, I. R., 6 Eq. 199. See also Moore v. Madden, I. R., 2 Eq. 511.)

Again, a contrary intention may appear from the words of the gift referring to the present time. Thus, where a testator devised the house "wherein I now reside," and "all the remainder of my real estates whereof I am now seised," and afterwards devised "all such trust estates as are now vested in me, or as to the leasehold premises as shall be vested in me at the time of my death:" it was held, that freehold estates purchased by him between the date of his will and his death, did not pass under the devise, the court being satisfied that the testator, in using the word "now," meant the day on which he made his will. (Cole v. Scott, 1 Hall & T. 477; 1 Mac. & G. 518.) The word "now" received the same construction in Hutchinson v. Barrow (6 H. & N. 533; 9 W. R. 538); and “a gift of the house I now live in" was held to refer to the house as occupied by the testatrix at the date of the will, and not at the time of her death. (Williams v. Owen, 9 L. T., N. S. 200.)

On the other hand, where a testator devised a messuage wherein A. "now resides, with the stables or appurtenances thereto belonging and therewith occupied;" it was held, that a garden attached to the messuage, which had been acquired by the testator after the date of his will, passed. (Re Midland R. Co., 34 Beav. 525.) Under a gift of "any other property that I may now possess," personalty acquired after the date of the will was held to pass. (Wagstaff v. Wagstaff, L. R., 8 Eq. 229; Hepburn v. Skirving, 4 Jur., N. S. 651.) And Malins, V.-C., has expressed his dissent from the decision in Cole v. Scott, ubi sup. (Castle v. Fox, L. R., 11 Eq. 542.)

1 Vict. c. 26,

8. 24.

Effect of words referring to pre

sent time.

"Now."

Under a devise of lands "of which I am seised" at a particular place, Lands "of which lands acquired after the date of the will have been held to pass. (Doe d. I am seised." York v. Walker, 12 M. & W. 591; Lady Langdale v. Briggs, 3 Sm. &

Giff. 246; Lord Lilford v. Keck, 30 Beav. 300.)

For the bearing of this section on the wills of married women, see the note to sect. 8 (ante, p. 503); and on wills in execution of powers see the note to sect. 27 ( post, p. 525).

After the date of his will a testator was duly declared lunatic, and so remained till his death. During his lunacy changes were made by the court in the state of his property. It was held, that his will must be read as speaking from its date and not from the death of the testator. (Wheeler v. Thomas, 4 L. T., N. S. 173.)

Wills of married
women, and in

execution of
powers.
Will of testator
subsequently
found lunatic.

applies to excepting clauses.

Section does not jects of gift.

apply to the ob

It is doubtful whether this section applies to the construction of an Whether section excepting clause in a will. (Hughes v. Jones, 1 H. & M. 765.) This section of the act does not apply to the objects of the testator's bounty who are to take the real and personal estate given by the will, but only to the real and personal estate comprised in the will. A testator bequeathed certain funds to A., a widow, for life or until her marriage, and after her death or marriage, amongst her children. A. married again between the date of the will and the death of the testator, and he was aware of her marriage: it was held, that A. was not entitled to the income of the funds, but that the gift, upon her decease or marriage, came at once into operation. (Bullock v. Bennett, 7 De G., M. & G. 283; and see the remarks of Kindersley, V.-C., Gibson v. Gibson, 1 Drew. 62.)

It was said by Turner, L. J., that the words in the section, "with reference to the real estate and personal estate comprised in it," mean " so far as the will comprises dispositions of real and personal estate." (Lady Langdale v. Briggs, 8 De G., M. & G. 436.)

As to the period from which a will speaks, with reference to the objects of the gifts contained in it, see 1 Jarm. Wills, 303-306; and as to the construction of a gift to the husband of an unmarried daughter of the testator, see Radford v. Willis, L. R., 7 Ch. 7.

25. Unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised or in

A residuary deestates comprised

vise shall include

8. 25.

1 Vict. c. 26, tended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will (d).

in lapsed and void devises.

Rule as to wills prior to 1838.

Residuary devises within this section.

Gift of particular residue.

Residuary devise remains specific notwithstanding this statute.

A general devise of the testator's

onde shall include

copy hold and leasehold as well

as freehold lands.

(d) In wills prior to 1838, a residuary devise does not include specific devises which lapse (Hawk. Wills, 44), or which are void. (Smith v. Lomas, 12 W. R. 949.) But a residuary bequest does include lapsed and void legacies. (Hawk. Wills, 40. See 1 Jarm. Wills, 610-620.)

This section is to be construed upon the principle of assimilating a residuary devise of real estate, with a similar bequest of personalty; and therefore a devise which was by construction residuary was held to pass lands in a devise void as being contrary to law. (Carter v. Haswell, 26 L. J., Ch. 576; 5 W. R. 308.)

A testatrix devised estate E. to A. absolutely, and "all my freeholds, &c. not hereinbefore devised" to A. for life, with remainders over; A. died before the testatrix: held that estate E. passed under the residuary devise. (Green v. Dunn, 20 Beav. 6.) A testator devised specific real estate to M., and devised and bequeathed “ All other real and personal estate of which he might die possessed" to M. and others of his children. M. died in his lifetime it was held, that the devise expressed by the words "all other, &c." was a residuary devise within this section, and included the real estate devised to M. (Cogswell v. Armstrong, 2 Kay & J. 227; and see Culsha v. Cheese, 7 Hare, 236; Hickson v. Wolfe, 9 Ir. Ch. R. 452.)

A married woman having a power of appointment under a settlement over estates A. and B., appointed estate A. to her husband for life, with remainder to trustees to sell and pay certain legacies and pay the residue to charities; and she appointed" all the other hereditaments comprised in the settlement not hereinbefore disposed of" to another person: it was held, that the appointment of "all other the hereditaments," &c. by the will, was not a residuary devise within this section, and that the void gifts to the charities did not pass by it. (Re Brown, 1 Kay & J. 521.) A testatrix gave lands in the parish of H. to A., B. and C. as joint tenants in fee, and devised to the plaintiff "all the rest of my freehold hereditaments in the parish of H., and all my freehold hereditaments in the parishes of," &c. The devise to A., B. and C. having been declared void, it was held that the lands comprised in that devise did not pass to the plaintiff under this section. Mellish, L. J., thought that the section only applied where there was what might be called an universal residuary devise; that is to say, a devise of all the residue of the testator's lands. (Springett v. Jenings, L. R., 6 Ch. 333.)

A residuary devise of real estate was held to be specific before the Wills Act. (Mirehouse v. Scaife, 2 M. & Cr. 695.) And such a devise remains specific, notwithstanding the Wills Act. (Hensman v. Fryer, L. R., 3 Ch. 420; Gibbins v. Eyden, L. R., 7 Eq. 371.)

And accordingly lands specifically devised, lands comprised in a residuary devise, and personal estate specifically bequeathed, are to be applied rateably in payment of debts. (Eddels v. Johnson, 1 Giff. 22; Pearmain v. Twiss, 2 Giff. 130; Clark v. Clark, 4 Giff. 702.) But a pecuniary legatce has no right to call upon a residuary devisee to contribute to the payment of debts. (Collins v. Lewis, L. R., 8 Eq. 708; Dugdale v. Dugdale, L. R., 14 Eq. 234.)

26. A devise of the land of the testator, or of the land of the testator in any place or in the occupation of any person mentioned in his will, or otherwise described in a general manner, and any other general devise which would describe a customary, copyhold or leasehold estate, if the testator had no freehold estate which could be described by it, shall be construed to in

8. 26.

clude the customary, copyhold and leasehold estates of the tes- 1 Vict. c. 26, tator, or his customary, copyhold and leasehold estates or any of them, to which such description shall extend, as the case may be, as well as freehold estates, unless a contrary intention shall appear by the will (e).

(e) For the rules on this point governing wills prior to 1838, see 1 Jarm, Wills, 632-646; Hawk. Wills, 30.

Where a testator having bequeathed the residue of his personal estate whatsoever and wheresoever to A., devised all his manors, lands, &c. at W. in the county of Durham, and at B. in the county of York, and all other his real estates in the counties of Durham and York, and elsewhere, and all his estate and interest therein to trustees; it was held, under this section, by Sir J. Romilly, following the opinion of the Courts of Exchequer (5 Exch. 752), and Queen's Bench (18 Q. B. 474); but contrary to the opinion of Lord Langdale (11 Beav. 237), that the testator's leaseholds in Durham passed to the trustees. (Wilson v. Eden, 16 Beav. 153.)

Where a testator devised all his "freehold land" at a certain place, in part of which (then in question) he was possessed of a term of years, and he was also seised of the reversion of the same in fee from the expiration of the three years after the end of the term, it was held that both the freehold and leasehold interest of the testator passed. (Mathews v. Mathews, L. R., 4 Eq. 278.)

A testator who had no freeholds, but had leaseholds for a long term which he believed to be of freehold tenure, gave his real estate upon trust to make a certain payment; it was held that the leaseholds were charged with the payment. (Gully v. Davis, L. R., 10 Eq. 562.)

shall include es

tates over which the testator has a appointment.

general power of

27. A general devise of the real estate of the testator, or of A general gift the real estate of the testator in any place or in the occupation of any person mentioned in his will, or otherwise described in a general manner, shall be construed to include any real estate, or any real estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will; and in like manner a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will (ƒ).

(f) The general rule governing wills prior to 1838 has been thus stated: Rule as to wills "It is clearly settled that a general devise or bequest will not, independently prior to 1838. of the late statute, operate as an execution of a power; but it is also settled that where a testator disposes of real estate, not having any other than what is subject to the power, he is in such case to be taken as dealing with that estate; and that as to both realty and personalty, if the court is satisfied by the manner in which the particular property is referred to, that the testator intended to deal with that property, the disposition will be a valid execution of the power." (Per Lord St. Leonards, Lake v. Currie, 2 De G., M. & G. 547. See further, Hawk. Wills, 22-26; 1 Jarm. Wills, 646— 649; Re Comber's Settlement Trusts, 14 W. R. 172; Re Bringloe's Trusts, 26 L. T., N. S. 58.)

Where a married woman is the donee of the power, the rule seems to be, that if the will would be ineffectual unless construed as an execution of the

1 Vict. c. 26, 8. 27.

New law.

What powers are within this section.

Powers exercised

by general residuary bequest;

by general pecuniary legacies.

Ineffectual appointments.

Property ineffectually appointed

power, that construction shall prevail; but that if there is any other subject upon which her will may operate, the power will not be executed. (1 Jarman, 648; Att.-Gen. v. Wilkinson, L. R., 2 Eq. 816.)

Under the new law it is necessary to show a contrary intention in order to exclude the execution of the power, while under the old law it was necessary to show the intention to exercise the power. (Lake v. Currie, 2 De G., M. & G. 548.) This section is confined to general powers, and does not extend to a special or limited power. Thus a power to appoint by will amongst children in such manner as the appointor shall think proper, is not within this section of the act. (Cloves v. Awdry, 12 Beav. 604; Russell v. Russell, 12 Ir. Ch. R., N. S. 377.) Nor is a power given by a testator to his wife to appoint by will among her relations or friends. (Re Caplin's Will, 2 Dr. & Sm. 527.) But a power in a marriage settlement to appoint by deed or will to all and every "person or persons, child or children," was held to be within this section. (Cofield v. Pollard, 5 W. R. 774.) A power of appointment by will only is within this section. (Re Powell's Trusts, 18 W. R. 228.)

Under this section a general residuary bequest will operate as an appointment of the personal estate, which the testator has power to appoint in any manner he may think proper. (Spooner's Trust, 2 Sim., N. S. 129; Clifford v. Clifford, 9 Hare, 675; Att.-Gen. v. Brackenbury, 1 H. & C. 782; 11 W. R. 380.)

It seems that general pecuniary legacies, with no particular fund indicated for the payment, are bequests of personal property described in a general manner, and therefore, where the proper assets of the testator are inadequate, without resort to the property over which the testator has a general power of appointment, general pecuniary legacies are within the operation of this section, and the will must be held to include and extend to the personal estate subject to the power of appointment, so far as is necessary to satisfy general pecuniary legacies described in a general manner. (Hawthorn v. Shedden, 2 Jur., N. S. 749; 3 Sm. & Giff. 293; doubted by Wood, V.-C., in Hurlstone v. Ashton, 11 Jur., N. S. 725; but followed in Re Wilkinson, L. R., 4 Ch. 587; and see Wilday v. Barnett, L. R., 6 Eq. 193.) "It must also, I think, be considered as settled law that where a testator with a general power of appointment gives legacies and appoints an executor, he must be taken as exercising his general power to the extent to which the fund subject to it is required to make the legacies effective. And even that where a testator having such a power makes a will directing the payment of his debts without more, and appointing an executor, the appointed fund is liable for the payment of his debts, if his own estate is insufficient. The same rule would, I conceive, apply in both these cases, though no executor were appointed. It has not yet been decided that an appointment of an executor without more would, since the Wills Act, make the fund assets. And so to hold would appear to give a very unnatural construction to sect. 27 of the Wills Act, as to the execution of powers by a general disposition." (Per Wickens, V.-C., Re Daries Trusts, L. R., 13 Eq. 166.)

"A testamentary appointment under a general power to A., in trust for B., which lapses as to the beneficial interest by B.'s death before the appointor, operates as a good appointment in favour of A., who holds on the same trusts as if it had been the appointor's own property. . It does not appear to have been yet decided that where there is no appointment to A., but merely an appointment to B. direct, and B. dies before the testator, the result is the same.' (Per Wickens, V.-C., Re Davies' Trusts, L. R., 13 Eq. 166.) In that case S., who had a general power of appointment over a moiety of her deceased husband's residuary estate, by will in 1869, after directing that her debts should be paid, and giving pecuniary legacies, bequeathed the residue of her personal estate to M., E., W. and J. equally, and appointed an executor. M. and J. died in the life of the appointor. Held, that the husband's next of kin were entitled to the shares which M. and J. would have taken if they had survived the appointor. (Ib.)

A general residuary bequest includes property over which the testator