WILL SPEAKS, FROM WHAT PERIOD. XXIV. And be it further enacted, That every will shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. LAPSED AND VOID DEVISES. XXV. And be it further enacted, 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 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. GENERAL DEVISE-COPYHOLDS. XXVI. And be it further enacted, That 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 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. GENERAL DEVISE.-APPOINTMENT. [763] XXVII. And be it further enacted, 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; 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. FEE SIMPLE WITHOUT WORDS OF LIMITATION. XXVIII. And be it further enacted, 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. WORDS IMPORTING FAILURE OF ISSUE. XXIX. And be it further enacted, 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 or 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 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. [ 764] * ESTATE OF TRUSTEES. XXX. And be it further enacted, 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 determinable, or an estate of freehold, shall thereby be given to him expressly or by implication. ESTATE OF TRUSTEES. XXXI. And be it further enacted, 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 thereof, shall not be given to any 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. LAPSE OF ESTATE TAIL. 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 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. LAPSE. CHILDREN OR ISSUE DYING IN TESTATOR'S LIFETIME. XXXIII. And be it further enacted, 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 beqnest 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. XXXIV. And be it further enacted, That this act shall not extend to any will made before the first day of January, one thousand eight hundred and thirty-eight, and that every will reëxecuted or republished, or revived by any codicil, shall, for the purposes of this act, be deemed to have been made at the time at which the same shall be so reëxecuted, republished, or revived; and that this act shall not extend to any estate per autre vie of any person who shall die before the first day of January, one thousand eight hundred and thirty-eight. SCOTLAND. XXXV. And be it further enacted, That this act shall not extend to Scotland. INDEX. [The numerals refer to the pages of the present edition.] ABSOLUTE GIFTS, clause illegally modifying, rejected, 283, 284. qualified by subsequent trusts only pro tanto, 672. ABSOLUTE INTEREST IN PERSONALTY, conferred by words, which applied to real estate would create estate tail, ii. 349, 350, and notes. rule applies to estates tail by implication, ii. 350. to cases falling within the rule in Shelley's case, ii. $50. words of limitation, &c., annexed to limitation to heirs of the body, &c. ii. 351. where the bequest is to a person and his issue simply, ii. 352. whether "issue" explained to mean issue at the death, ii. 352, 353. to four persons and the issue of their respective bodies, ii. 353. bequest to A for life, and after his death to his issue, ii. 353. gifts to the issue as tenants in common, ii. 355. bequest to A and her children, ii. 356. over in case of death without having any child or children, ii. 356, 357. to five persons and their respective issue per stirpes, ii. 357. to the daughters of T. and their issue, with benefit of survivorship, ii. 358. bequests over after gifts in question, when void, ii. 359, 360. such gifts may be made defeasible on a collateral event, ii. 360, 361. effect of act of 1 Vict. c. 26, s. 29, on this rule of construction, ii. 361, 362. as to annexing personal to real estate, devised in strict settlement, ii. 361. bequest over after gift of, good, if first legatee dies in life of the testator, 677 note. ACCELERATION OF ULTERIOR ESTATES, 474, and see DEATH. if devisee for life declines the devise, the remainder-man takes immediately, ACCRUER, CLAUSES OF, whether they extend to accrued shares, ii. 444. accrued shares held to pass under gift of "the whole," ii. 447. accruing shares not necessarily subject as the original, ii. 447. qualifications expressly applied to original shares not extended by implication effect where qualification is necessary to validity of gift of accruing shares, ii. 449. ACCUMULATION OF INCOME, doctrine as to, 289. And see 2 Beav. 430, 493. |