tors (a), to two et heredibus (omitting suis) (b); to a man and his, and to do what he will with it (c), and even to him and his simply (d); to A. to give and sell (e); to A. to give and sell, and do therewith at his will and pleasure (ƒ), or to a person to her own use, to give away at her death to whom she pleases (g); or to be at the discretion of a person (h).

* But the words "freely to be possessed and enjoyed" [*1134] have been decided to pass, under the old law, only an estate

for life (i).

2

Word " es

It has been long established that a devise of a testator's "estate" or "estates" included not only the corpus of the property, but the whole of his interest therein (k).1 And the same effect has been given to such words as "property" (1), "in- tate" carries heritance" (m), "reversion" or "remainder" (n), "right a fee, when. and title" (0),* "all my interest" (p), or "real effects" (q). And it was ultimately settled that the words "estate," "property," &c., would carry the inheritance, though accompanied by words of locality (r), or referring to occupancy (s), or other expressions referable exclusively to the corpus of the property (t).

(a) 3 Burr. 1881; and see 10 Beav. 21.

(6) Br. Estates, pl. 4; 8 Vin. Ab. 208, pl. 18.

(c) Latch, 36, Benloe, 11, pl. 9.

(d) Id. In some manors, copyholds are so limited.

(e) Co. Lit. 9 b: 8 Vin. Ab. 206, pl. 7.

(ƒ) Br. Dev. pl. 39, 1 Leon. 156, 8 Vin. Ab. 234, pl. 2; id., 1 Leon. 283.

(g) 2 Atk. 103. Where such a phrase is added to an express estate for life, it confers a power only. See 1 P. W. 149, 1 Salk. 239; 10 East, 438: and as to personalty, 4 Russ. 263; but see 24 Beav. 246; and for cases since 1 Vict. c. 26, see infra.

(h) 1 Leon. 156, 8 Vin. Ab. 235, pl. 7. See also 2 Wils. 6.

(i) 11 East, 220; 2 C. M. & R. 23; 9 Ha. 378; see also L. R., 2 Q. B. 269.

(k) 2 Lev. 91; 3 Keb. 180; 1 Mod. 100; 3 Mod. 45, 228; 3 Keb. 49; 4 Mod. 89; 1 Show. 349; 1 Salk. 236; 1 Com. 337; 2 Vern. 690; Pre. Ch. 264; 2 Vern. 564; 12 Mod. 594; 2 Ld. Raym. 1324; 2 P. W. 524; 1 Eq. Ca. Ab. 178, pl. 18; 3 P. W. 294; Cas. t. Talb. 157; Amb. 181; 2 Atk. 38, 102; 3 Atk. 486; 1 Ves. 10; 2 id. 48; 2 W. Bl. 938; 1 H. Bl. 223; Willes, 296, Lofft, 95, 100; 4 T. R. 89; 1 B. & P. N. R. 335; 11 East. 518; 3 V. & B. 160; 3 Br. & B. 85: 2 Sim. 264; 8 Bing. 323; 1 Moo. & Sc. 466; 9 Ad. & Ell. 719; 1 Per. & D. 472; 15 Q. B. 28; 1 Exch. 414.

As to "estates" (in the plural) see Amb. 181; 2 T. R. 656; 4 M. & Sel. 366; 3 K. & J. 652. See also 1 Cox, 362.

() 16 East, 221; 18 Ves. 193; 1 J. & W. 189; 11 Ad. & Ell. 1000; 3 Per. & D. 578; 2 Drew. 7; 19 Beav. 225; L. R, 3 H. L. 121.

(m) Hob. 2, Godb. 207, Moore, 873, ca. 1218. (n) 1 Lut. 755; 1 Ld. Raym. 187; Ves. 48.

Not so if the word "remainder" is used in

the sense of residue, Mose. 240; 5 T. R. 558, 2 B. & P. 247. (0) 4 M. & Pay. 445; 6 Bing. 630.

(P) 5 T. R. 292.

(q) Hogan v. Jackson, Cowp. 299, 3 B. P. C. Toml. 388, stated Vol. I., p. 677; Coop. 241; 22 L. J. Ch. 236. See also Grayson v. Atkinson, 1 Wils. 333, stated Vol. I., p. 678.

(r) Amb. 181; Cas. t. Talb. 157; 2 P. W. 523; 2 Atk. 37, Barn. Ch. Rep. 9; 1 T. R. 411;

4 Taunt. 176. 4 Dow. 92; 4 Taunt. 177; 6 Taunt. 317, 7 East, 259, 2 Ed. 115; 3 Sim. 398; 3 K. & J. 652; 3 D. M. & G. 668.

(s) 3 J. B. Moo. 565, 1 Br. & B. 72. See also 5 M. & Sel. 408. (t) 7 Taunt. 35; 2 Ves. 48; 6 Ex. 510.

1 Evans's Appeal, 51 Conn. 435; Lowrie v. Ryland, 65 Iowa, 584; Chapman v. Chick, 81 Maine, 109.

2 White v. White, 52 Conn. 518; Robinson v. Randolph, 21 Fla. 629; Morgan v. McNeeley, 126 Ind. 537; Chapman v. Chick, 81

Maine, 109. So "possessions," Chapman v.
Chick.

3 Evans's Appeal, 51 Conn. 435. See Chapman v. Chick, 81 Maine, 109 ("rest and residue ").

4 Id.

When words

64 part," 46 share," "moiety,"

It was at one time a question whether under a devise by a testator of "his moiety," "his part," or "his share," of lands the devisee would take an estate in fee, but it seems ultimately to have been settled that he would (u); unless a contrary intention appeared by the will, as, where the indefinite gift was one in the midst of a regular series of limitations expressed as remainders one to another (x). The words, however, had this force only where the moiety, part, or share belonged as such to the testator himself (y).

carried a fee.

[*1135] *An estate in fee was sometimes held to be given by virtue of words of exception. So, a devise of an "estate at B." except a particular house, passed the fee in the house (*). But the word "estate," or other words of similar signification must have been contained in the disposition part of the will. Such words Words of exoccurring merely in the introductory clause in the will, ception. by which the testator professed in the usual manner his intention to dispose of all his estate, did not have the effect of enlarging the subsequent devises in the will (a). words might be restricted by the context (b).

out words of

And of course such.

II. Effect of stat. 1 Vict. c. 26, s. 28. -By s. 28 of the act 1 Vict. c. 26, it is enacted "That where any real estate shall be devised A devise with- to any person without any words of limitation, such devise shall be construed to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will." 1

limitation, to pass the fee.

Remarks on the rule.

The effect of the enactment, it will be observed, is not wholly to preclude, with respect to wills made or republished since the year 1837, the question whether an estate in fee will pass without words of limitation, but merely to reverse the former rule. Formerly, nothing more than an estate for life would pass by an indefinite devise, unless a contrary intention could be gathered from the context. Now, an estate in fee will pass by such a devise, "unless a contrary intention shall appear by the will." The onus probandi (so to speak), under the present law, lies on those who contend for the restricted construction; and is not discharged by showing that another devise in the will contains formal words of

(u) 3 C. B. 274; 3 Jo. & Lat. 47; 1 Drew. 646, 653; L. R., 1 Ex. 235. (x) Re Arnold's Estate, 33 Beav. 163.

(y) 2 Vern. 388; Cro. Eliz. 52; 19 Beav. 135, 2 D. & Ry. 678, 1 B. & Cr. 688. And in Bentley v. Oldfield, 19 Beav. 225, the fee passed by the words "share of property."

(z) 6 Scott, 303. 4 Bing. N. C. 455. And see 2 Dr. & Sm. 273; 2 J. & H. 634 (annuity, perpetual or for life).

(a) 6 Taunt. 317; 8 East, 141: 1 Cr. & Mee. 39.

(b) Cowp. 235; 3 B. & Ad. 473; 1 Q. B. 229; 15 Ves. 564; 5 J. B. Moo. 1; 4 D. M & G 73; 1 D. F. & J. 613; 9 App. Ca. 890.

1 So generally in this country. See note 1, p. 1131, ante.

limitation (c), or that a special power of appointment is (in terms) given to the devisee (d); though if the same land be given in one part of the will to A., and in another to B., the presence of words of limitation in the latter gift, and their absence from the former, are material to correct the apparent contradiction, [*1136] and to show that the testator meant a gift to A. for life, with remainder to B. in fee (e).

*

The rule does not apply to interests

created de novo.

This rule of construction has been held not to apply to interests created de novo; thus a devise of a rent-charge to A. simply, has been held to give him a rent charge for life only (f). And where a testator devised to A. "the house she lives in and grass for a cow in G. field," and gave his D. estate (which included G. field) to X., it was held that A. took the fee simple in the house, but not in the easement; the Court being of opinion that grass for a cow was not necessary for the enjoyment of the house, and that the extent of interest in the one was not governed by the other (g).

Devise of

A devise of rents and profits or of income of land now carries the fee simple (h), under the old law it carried income of only an estate for life unless words of inheritance were added (i).

land.

lands not

In conclusion, it may be noticed that where copyholds Fee simple of a manor, in which there is no custom to entail, are conditional in devised in terms which, if applied to freeholds, would within stat. create an estate tail, the devisee takes a fee simple con- De Donis. ditional, which becomes absolute on the birth of issue inheritable under the limitation (k), and the same rule applies to a Or in a similar gift of a personal inheritance; which cannot be personal entailed (1).

inheritance.

(c) Wisden v. Wisden, 2 Sm. & Gif. 396. (d) Brook v. Brook, 3 Sm. & Gif. 280. See also Weale v. Ollive, 32 Beav. 421; and as to personalty Re Mortlock's Trusts, 3 K. & J. 456. the question whether the further words give the as before the act, Freeland v. Pearson, L. R., 3

144.

(e) Gravenor v. Watkins, L. R., 6 C. P. 500. 'would be joint-tenants, Vol. I., p. 440.

Where the prior devise is expressly for life absolute interest or only a power is the same Eq. 658; Pennock v. Pennock, L. R., 13 Eq.

But for the words of limitation A. and B.

(f) Nichols v. Hawkes, 10 Hare, 342. As to what words are sufficient to create a perpetual rent-charge, see Mansergh v. Campbell, 25 Beav. 544, 3 De G. & J. 232.

(9) Reay v. Rawlinson, 29 Beav. 88. As to the construction where property is devised to one in fee, and there follows an indefinite gift of an easement which is necessary to its enjoyment, see Pym v. Harrison, 32 L. T. N. S. 817, revd. 33 id. 796 (will before 1838).

(h) Plenty v. West, 6 C. B. 201; Mannox v. Greener, L. R., 14 Eq. 456. See ante, Vol. I., p. 741. (i) 14 Sim. 571.

(k) Doe d. Simpson v. Simpson, 4 Bing. N. C. 333, 5 Scott, 770; Doe d. Blesard v. Simp son, 3 Scott, N. R. 774, 3 M. & Gr. 929; Doe d. Spencer v. Clarke, 5 B. & Ald. 458. (1) Stafford v. Buckley, 2 Ves. 170; Turner v. Turner, 1 B. C. C. 316.

Whether devises are within the Statute of

Uses.

(5) Enactments of the Statute 1
Vict. c. 26, sects. 30, 31. 1165

I.—1. When Trustees take the Legal Estate.— General Principles.— The question whether a devise to uses operates by virtue of the Statutes of Wills alone, or by force of those statutes concurrently with the Statute of Uses, has been the subject of much learned controversy (a). The prevailing, and, it is conceived, the better opinion is in favor of the latter hypothesis (b); the only objection to which seems to be, that, as the Statute of Uses preceded the Statutes of Wills, uses created under the testamentary power conferred by the latter statutes could not, at the time of the passing of the Statute of Uses, have been in the contemplation of the legislature. The futility of this objection has been so often exposed, that it is not intended here to revive the discussion, more especially as the point has not, in general, any practical influence on the construction of wills; for even those who assert that the Statute of Uses does not apply,

admit, and the authorities conclusively show (c), that a [1138] * devise to A. and his heirs, simply to the use of B. and his heirs, would vest the fee simple in B., if not by force of the statute, yet in order to give effect to the manifest intention of the testator. Such intention, however, seems to be apparent only when examined through the medium of the Statute of Uses. We must suppose the testator to be acquainted with the effect of that statute, in order to gather from such a devise an intention to confer the legal

(a) 1 Sand Uses, 195; 2 Fonbl. Treat. Eq. 24; and Sugd. Pow. 8th ed. 146. (b) But contra per Jessel, M. R, L. R., 20 Eq. 171, 3 Ch. D. 400, 20 Ch. D. 478. (e) Symson v. Turner, 1 Eq Ca. Ab 383, pl. 1, n.: Harris v. Pugh, 4 Bing. 335, 12 J. B. Moo. 577. And see Hawkins v. Luscombe, 2 Sw. 392; Doe v. Field, 2 B. & Ad. 564.

estate on the ulterior devisee. On the other hand, it is clear that a devise to the use of A. and his heirs, in trust for or for the use of B. and his heirs, would vest the legal inheritance in A. in trust for B., and not carry it on to B. Either this must be by the effect of the Statute of Uses forbidding the limitation of a use upon a use, or, supposing that statute not to operate upon wills, it must be (as in the former case) the result of presuming the testator to intend by the devise in question to produce the same effect as such limitation introduced into a deed would have done by force of that statute. It is evident, therefore, that in such cases the question whether the Statute of Uses applies to wills does not arise. And in practice little or no attention seems to have been paid to the difficulty suggested by an eminent writer (d), that, under a devise to A. and his heirs, to the use of B. and his heirs, if A. should die in the testator's lifetime, the devise to B. might possibly, under the Statute of Uses, fail at law for want of a seisin to serve the use. Indeed the writer in question himself observes, in solution of his own difficulty, that, as every testator has a power to raise uses either by the joint operation of both statutes, or by force of the Statutes of Wills only, possibly the Courts would, in favor of the intention, construe the devise as a disposition not affected by the Statute of Uses, but as giving the fee to B. immediately. Perhaps, however, there would be some difficulty, in principle, in adopting this construction; for, if, in the event of A. surviving the testator, the use would have been executed by the operation of the Statute of Uses, to hold the result to be different in consequence of the death of A. in the lifetime of the testator would be to make the construction of the devise dependent on events subsequent to its inception. Supposing the devise to be void at law, it is clear that equity would compel the heir to con- [*1139] vey; but probably the Courts would struggle hard against adopting a construction which would invalidate it even at law. The occurrence of the question may of course be easily avoided by devising the estate immediately to uses, and not to a devisee to uses (e).

Principle which deter

mines whether persons appa

Where property, in which a testator has an estate of freehold, is devised to one person in trust for or for the benefit of another, the question necessarily arises whether the legal estate remains in the first-named person, or passes over to, and becomes vested in, the beneficial or ulterior devisee. If the devise is to the use of A., in trust for B., the legal estate (we have rently so, are seen) is vested in A., even though no duty may have been assigned to him which requires that he should have the estate. Where, however, the property is devised to A. and his heirs, to the use of, or in trust for, B. and his heirs, the question whether A. does

trustees.

(d) Butl. Co. Lit. 272 a, VIII. 1; and 1 Sugd. Pow. 7th ed. 173, but omitted, 8th ed. 148. (e) See further on this subject, Sugd. Pow. 8th ed. 148, where it is shown that an important question on the construction of powers created by will depends upon this point.