A will shall be construed to the death right heirs, the testator, after devising upon condi-. tion that he should have no issue, conveyed the estate to trustees to the uses and trusts of the articles, it was held that the will was not revoked (z). In the case of personal property, the law leant against considering a legacy as specific. Where it was clearly so, it seemed to have been established as a rule that the only inquiry to be made was whether the specific thing remained in esse at the death of the testator, and the Court would not entertain the question whether it had or had not ceased to exist by an intention to adeem on the part of the testator (a). This enactment carries out the principle contained in the preceding sections. As no presumption is to operate against an existing will, neither is it to affect a particular disposition in it. However, therefore, the testator may deal with or modify the property after making his will, if he have any interest at all in it at his death, the devisee or legatee will take it, unless the whole will be revoked. XXIV. And be it further enacted, that every will shall be construed, with speak from 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. of the testator. The preceding section points to cases where, notwithstanding his dealings with the property which was the subject of disposition, the testator had some interest remaining in it at the time of his death. (8) Williams v. Owens, 2 Ves. J. 594 The present enactment extends to after-acquired property, both real and personal, and its operation. will be very important. A gift of lands, either from the words of the statute of wills, " persons having lands may devise them," or because a will was considered in the nature of a conveyance, even a general residuary devise was specific, and passed only that which the testator had at the time of making it. No afteracquired estate, though only a foreclosure of a mortgage, was affected by the will (b). But all chattel interests, as well real as personal, which he possessed at the time of his death, passed under appropriate words of disposition. Thus, if a testator devised all his real and personal estate, and afterwards acquired more of each kind, the real estate acquired afterwards did not pass, but leases or other personal estate did (c). As to real property, therefore, the will was invariably construed to speak from its date; and so in case of a specific bequest of personalty; but as to the general personal estate, the rule was laid down in unqualified terms, that a will spoke from the death of the testator. It has been observed, that the leaning of the Courts was invariably against construing a legacy to be specific, because, if the particular thing was not in being at the time the will took effect, the legacy failed. In the case of a bequest in general terms, some particular expression was necessary which clearly and unequivocally pointed to the present time as descriptive of the things intended to be given. "All the leases which I now have,"-" all the horses now in my stable,"-" all the corn now in my barn," would not pass leases, horses, or corn, after purchased; but where the bequest was of a collective body, as a "flock of sheep in such a Casborne v. Scarfe, 1 Atk. 605. Wind v. Jekyll, 1 P. W.572. D A residuary field," or "my library of books," things in their nature fluctuating, any addition to the one or the other would have been included in the devise (d). In this respect there seems to be no alteration. By the present section, wills both of realty and personalty are put upon the same footing. A devise of Black Acre estate will pass not only those lands which composed the estate at the date of the will, but all which have been subsequently annexed to it, and a general devise of all lands will of course include all which the testator was seised of at his death. In the case of a specific bequest, if the testator dispose of the thing given, and purchase another answering the same description, the latter will now pass. Many questions, arising from the subsequent renewal of leases, will be put to rest by this enact ment. 66 It must be observed, that the will speaks from the death only in respect of the property comprised in it; the statute leaves untouched questions turning on the identity of person. Where the devise or bequest is to a designated individual, whether by name, as A. B., or by description, as my son John," it will still be considered as speaking from its date, so as to entitle the person to whom that name or description then applied, not the person to whom it might, in consequence of some change of events, be applicable at the death of the testator. Nor does it extend to questions of satisfaction. If, subsequently to a bequest of a sum of money to a child, the testator give that sum as a marriage portion, the date of the bequest will still be referred to to show that nothing is payable. XXV. And be it further enacted, that devise shall unless a contrary intention shall appear include (d) Wind v. Jekyll, 1 P. W. 572. prised in lapse and vises. by the will, such real estate or interest estates comtherein as shall be comprised or intended and to be comprised in any devise in such void dewill 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. A residuary bequest of personal estate operates upon every thing which the testator possessed at the time of his death, and which turns out not to be disposed of by his will, whether it be by omission, or the lapse of specific bequests, void or failing by the previous death of the legatee (e). But as every devise of land was specific, a residuary devisee could take no more than the testator was seised of at the date of his will, and which was not therein expressed to be devised (f). Consequently, all which could not vest in the devisee, devolved on the heir (g). But if only a partial or contingent (h), or reversionary (i) interest was specifically devised, the estate which the heir would otherwise have taken, would be included in the residuary devise. The operation of this clause will be to carry to the residuary devisee all the real estate upon which the specific devise could not operate, unless it appear by the will that the testator intended his heir to take it. (e) Brown v. Higgs, 4 Ves. 708. (f) Wright v. Hall, Fort. 182; Page v. Leapingwell, 18 Ves. 463. (g) Wheeler v. Waldron, Allen, 28. (h) Goodtitle v. Knot, Cowp. 43. A general devise of the testator's lands shall in clude copyhold and leasehold as well as freehold lands. 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. This enactment also effects an important alteration in regard to the construction of devises. Formerly, neither copyholds (unless surrendered to the use of will), nor leaseholds, would pass under a general devise of "lands, tenements, and hereditaments," or other general words descriptive of real estate, unless the devisor had no freehold lands upon which it might operate (ii). Since the statute 55 Geo. III. c. 192, dispensed with the necessity of surrenders in certain cases, copyholds have been placed pretty nearly on the same footing as freeholds in regard to the operation of a general devise. But in respect to leaseholds, the rule laid down in Rose v. (ii) Byas v. Byas, 2 Ves. sen. 164. |