would pass to him, in either case, in fee; but if I devised to him such house, without adding and his heirs, or using such other equivalent words as above mentioned, he would take an estate in it for his life only (o). This rule had always given much dissatisfaction, as establishing a construction contrary to that which common sense presumes to be the real intention of the party. Now by sect. 28 of the Wills Act, 1837, it has been provided, that "where any real estate shall be devised 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."

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3. In devises to trustees, it had been a general rule prior to the Wills Act, 1837, that, though no words of inheritance were used in the limitation to them, yet they should take such an estate (even to the extent of the whole fee) as might be necessary to enable them to perform the trusts; but the question often arose, whether in particular instances they would take the fee, or a less estate, and if the fee, whether it would be determinable or not when the trusts were satisfied. But by s. 30 of the Wills Act, 1837, it is now provided, that "where any "real estate (other than or not being a presentation to a "church) shall be devised to any trustee or executor, "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 definite term of years, absolute or determin"able, or an estate of freehold, shall thereby be given to "him expressly, or by implication." And further (by sect. 31), that "where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surplus rents and profits

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(0) Hill v. Brown, [1894] A. C. 125.

ཝཱ

CHAP. XX.-OF THE CONVEYANCE BY DEVISE. 367

thereof, shall not be given to any person for life-or "such beneficial interest shall be given to any person for

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life, but the purposes of the trust are to continue "beyond the life of such person-such devise shall be "construed to vest in such trustee the fee simple, or "other the whole legal estate which the testator had power to dispose of by will, in such real estate, and not

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an estate determinable when the purposes of the trust "shall be satisfied (p)."

4. If, in the interval between the execution of a will and the death of the testator, one of the objects of his bounty should die, the devise will, by the general rule of law, lapse, that is, fail, and take no effect. This will be the case even though the devise should be to the devisee and his heirs, or to him and the heirs of his body. And when a devise lapses the subject-matter of it will either fall into the residue, when the will contains a residuary devise, or, where there is no such devise, be undisposed of by the will. This rule, where an estate in tail had been given to one who died and left children, was attended with peculiar hardship; for if there were a devise to A. and the heirs of his body, and he died before the testator, the gift was void, even though he left issue. So if a testator gave his property among his own children, and one of them died before him, leaving issue, such issue would take nothing under the will, though the probability was, that this consequence could not have been intended. It is true that a testator had it always in his power to make a new disposition in favour of the children of a deceased devisee; but either from negligence or ignorance of the law, or from other accidental causes, this was often omitted. An alteration of the law itself, as applicable to cases of this description, being therefore desirable, the Wills Act, 1837, by sect. 32, has provided, that "where any person to whom any real estate

(p) Freme v. Clement, (1881) 18 Ch. D. 514; Re Adam and Perry's Contract, [1899] 1 Ch. 544.

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"shall be devised for an estate tail, or an estate in quasi entail, shall die in the lifetime of the testator, leaving "issue who would be inheritable under such entail, and any such issue shall be living at the time of the death "of the testator, such devise shall not lapse, but shall "take effect as if the death of such person had happened "immediately after the death of the testator, unless a "contrary intention shall appear by the will." And further, by sect. 33, that "where any person, being a "child or other issue of the testator, to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the "death of such person, shall die in the lifetime of the "testator, leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but "shall take effect as if the death of such person had

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happened immediately after the death of the testator, "unless a contrary intention shall appear by the "will" (q). In addition to which enactments, and in connection with the subject of lapse, we may notice this further provision (sect. 25), introductory of a new rule, in cases where a lapse occurs, namely, that "unless a contrary intention shall appear by the will, such real "estate or interest therein as shall be comprised or "intended 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

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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” (*).

(q) Eager v. Furnivall, (1881) 17 Ch. D. 115; Stansfeld v. Stans feld, (1880) 15 Ch. D. 84.

(r) Crawshaw V. Crawshaw, (1880) 14 Ch. D. 817; Hethering

ton v. Longrigg, (1880) 15 Ch. D. 635; Carter v. Haswell, (1857) 26 L. J. Ch. 576 at p. 577; Re Mason, Ogden v. Mason, [1901] 1 Ch. 619.

5. Under a devise by a testator, having leasehold estate only, of " all my lands and tenements," a lease for years has always been allowed to pass, for there would otherwise be nothing for the will to operate upon; but if a testator, using such words, had lands in fee, as well as leaseholds, at the time, the lands in fee only would pass (s). It is now, however, provided by the Wills Act, 1837, sect. 26, that "a devise of the land of the testator, or "of the land of the testator in any place, or in the occupa"tion 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 "include the customary copyhold and leasehold estates "of the testator 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" (t).

6. In like manner, where a party, having an estate in lands, (being lands which he is competent to devise,) is also entitled, by virtue of a power conferred on him for the purpose, to appoint other lands by his last will and testament, it was the rule, prior to the Wills Act, 1837, that a general devise of his lands would operate only on those in which he had the estate, and would not affect those subject to the power; though it was otherwise if he expressly referred to the power, or if it appeared by other circumstances (as by his having no estate for the will to work upon), that he intended the subject of the power to pass (u). And such is still the general rule where the power is special, and to be exercised only in favour of

(s) Rose v. Bartlett, (1610) Cro. Car. 293.

(t) Prescott v. Barker, (1874) L. R. 9 Ch. App. 174; Butler v. Butler (1885), 28 Ch. D. 66; Re S.C.-VOL. I.

Guyton and Rosenberg's Contract, [1901] 2 Ch. 591.

(u) Denn v. Roake, (1826) 5 B. & C. 731.

BB

particular individuals or classes of person (r). But where the power is general, and enables the testator to appoint to any person that he pleases (which amounts in substance to ownership), the law is now altered by the Wills Act, 1837, which provides (by sect. 27), that "a general devise of the "real estate of the testator, or of 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," a principle of construction which is expressly made applicable also to personal estate (y).

and

7. By a rule of legal interpretation, at variance with the common apprehension of mankind, and founded upon reasons of a purely technical description, it had long been. settled law, that the words dying without issue (as where an estate of freehold or leasehold was devised to A., upon his dying without issue, then over to B.), in general imported an indefinite failure of issue, that is, a failure. not merely at the death of the party whose issue were referred to, but at any subsequent period, however remote (2). But by the Wills Act, 1837, such words were directed, for the future, to receive a more natural exposition, it being enacted (by sect. 29), that, "in any devise "or bequest of real or personal estate, the words 'die "without issue,' or 'die without leaving issue,' or 'have "no issue,' or any other words which may import either a want or failure of issue of any person in his lifetime

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(x) Cadell v. Willcorks, [1898] P. 21; Re Mayhew, Spencer v. Cutbush, [1901] 1 Ch. 677.

(y) In re Marsh, Mason V. Thorne, (1889) 38 Ch. D. 630; Phillips v. Cayley, (1890) 43 Ch. D.

222; Airey v. Bower, (1887) L. R. 12 App. Cas. 263; In re Hayes, Turnbull v. Hayes, [1901] 2 Ch. 529.

(2) Fearne by Butler, pp. 478, 480.