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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.

A Devise without any Words of Limitation

XXVIII. And be it further enacted, that where any real

estate shall be devised to any person without any words of shall be con: 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."

strued to pass the Fee.

The Words
“ die without
Issue," or
“ die without
leaving
Issue,” shall

Death.

XXIX. And be it further enacted, that in any devise or bequest of real or personal estate, the words “ die without issue,” or

or “die without leaving issue,” or “have no isbe construed sue,” or any other words which may import either a want without Issue or failure of issue of any person in his lifetime or at the living at the

time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift, being, without any implication arising from such words, a limitation of an estate tail to such person or issue, or otherwise : Provided, that this act shall not extend to cases where such words as aforesaid import if no issue described in a

Devises in fee:

• Under the present law a fee will pass by a devise to A. in fee simple, or to A. for ever, or to A. and his assigns for ever, but not to a person and his assigns simply, which gives him an estate for life only, or to a person freely to be possessed and enjoyed. See 2 Jarm. 410, 411., and cases there cited. By the present section it is enacted that a devise without any words of limitation shall be construed to pass the fee.

preceding gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue.”

Presentation

XXX. And be it further enacted, that where any real No Devise to estate (other than or not being a presentation to a church) Executors, shall be devised to any trustee or executor, such devise Term or a shall be construed to pass the fee simple or other the to a Church, whole estate or interest which the testator had power to Chattel Interdispose of by will in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implication.

est.

so if he

P In ordinary language, when a testator gives an estate to a Dying with

out issue,"&c. man and his heirs, with a limitation over in case of his dying without issue, he means that the devisee shall keep the estate, if he leave issue surviving him, and not otherwise ; and when the expression is in case the first taker die before he has any issue, or if he leave no issue, his intention probably is that the estate shall belong absolutely to the devisee on his having issue born. But the established legal interpretation of these expressions is different, for it has been settled in a long series of cases, that expressions referring to a dying without issue of a person, whether the terms be “if he die without issue,” or, die before he has issue,”.or, “ if he have no issue,” or, “for want,” or “ in default of issue,” unexplained by the context, whether applied to real or personal estate, are construed to import a general indefinite failure of issue, i. e. a failure of issue at any period; and consequently following a preceding devise or bequest to a person whose issue is so referred to, they create in him an estate tail in the realty, or an absolute interest in the personalty. This rule however admits of an exception where the expression used is “ leaving no issue ;” with respect to which the established distinction is, that applied to real estate, it means an indefinite failure of issue ; but applied to personal estate, it imports leaving issue at the death. See 2 Jarm. 504. These distinctions will not be applicable to wills to be construed by the present act, as it is enacted by the present section that the words “die without issue,” or “ die without leaving issue,” shall be construed to mean, die without issue living at the death.

4 This and the next section relate to the estate which trustees shall take. The rule at present is, that trustees take exactly that quantity of interest which the purposes of the trust require ; and the question is not whether the devisor has used words of limitation or expressions adequate to carry an estate of inheritance,

с

Trustees under an unli

the life of a Person bene.

to take the the Fee,

XXXI. And be it further enacted, that where any real mited Devise estate shall be devised to a trustee, without any express trust niay en. limitation of the estate to be taken by such trustee, and dure beyond

the beneficial interest in such real estate, or in the surficially enti. plus rents and profits thereof, shall not be given to any tled for Life,

person for life, or such beneficial interest shall be given to any person for life, but the purposes of the trust may 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 an estate determinable when the purposes of the trust shall be satisfied.

Devises of Estates Tail shall not lapse.

XXXII. And be it further enacted, that where any person to whom

any real estate 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."

Gifts to Chil. dren or other Issue who leave Issue

Death shall not lapse.

XXXIII. And be it further enacted, that where any person

being a child or other issue of the testator, to whom any living at the 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 happened immediately after the death of the testator, unless a contrary intention shall

appear by the will.

but whether the exigencies of the trust demand a fee, or can be satisfied by any and what less estate. 1 Jarm. Dev. and cases there cited.

r This and the next sections sufficiently explain themselves. The latter is a very useful provision.

XXXIV. And be it further enacted, that this act shall not Act not to extend to

any will madė before the first day of January Wills made one thousand eight hundred and thirty eight, and that every nor to estates will re-executed or republished, or revived by any codicil, of Persons shall for the purposes of this act be deemed to have been fore 1838. made at the time at which the same shall be so re-executed, republished, or revived; and that this act shall not extend to any estate pur autre vie of any person who shall die before the first day of Jauuary, one thousand eight hundred and thirty-eight.

XXXV. And be it further enacted, that this act shall Act not to not extend to Scotland.

extend to Scotland.

XXXVI. And be it enacted, that this act may be amend- Act may be ed, altered, or repealed by any act or acts to be passed in Session, this present session of parliament.

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