Bartlett (Cro. Car. 293) still applied, that "where a man hath lands in fee, and lands for years, and deviseth all his lands and tenements, the fee simple lands pass only, and not the leases for years; but if he hath no fee simple, the lease for years passeth;" and this, notwithstanding that, by reason of a defective execution of the will, the devise was inoperative (j). The rule, like all others, was founded on intention, which was sought for in the nature of the limitations, or other special circumstances apparent in the will, and if such intention could not be clearly demonstrated, the leaseholds did not pass. The rule of construction will be now reversed, and the intent to except them must be expressed or clearly collected from the will. include es which the testator has appoint XXVII. And be it further enacted, A general that a general devise of the real estate gift shall of the testator, or of the real estate of tates over the testator in any place or in the occupation of any person mentioned in his will, a general or otherwise described in a general man- power of ner, shall be construed to include any ment. 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 (j) Chapman v. Hart, 1 Ves. sen. 270. 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. It It was never considered necessary in the execution of a power to refer to it in express terms. was sufficient if the intention to exercise it appeared either by a description of the subject over which the power extended, or by any other means (k). If the testator had no other lands, or none in the particular place, or answering the particular description but those included in the power, a general devise, or a devise of lands in such a place, or of such a description, was a good execution, for it could not be intended that he meant to employ words without meaning (1). But it was otherwise if he had any other lands which would satisfy the terms of the devise (m). The intention to include the lands covered by the power must before have been manifested, now it will be presumed. Probably, therefore, any words capable of comprehending though not expressly descriptive of real estate will suffice for the purposes of this clause, though it was formerly otherwise. In the case of Jones v. Curry (n), the Master of the Rolls held, that a devise of "all my estate and effects of whatever denomination," though it would carry all the (k) King v. Melling, 1 Vent. 214. real as well as personal property of the testator if he had had any; yet as it would be satisfied by confining it to property of the latter description, it did not operate as an execution of a power to appoint the former. Admitting the principle of this decision to be correct, and that no intention to execute the power could be collected from those general words, it seems that as the intention is now to be inferred, any words capable of passing real property will suffice. This rule of construction, however, is to apply only where the testator has a general power of appointment. Where the power is a special or limited one, perhaps the intention to execute it might be collected as before, where there is no reference to the power, either from the descriptive language of the will, or the circumstances of the testator's property. But in the latter case there may be a difficulty in determining from what period the will is to speak. Suppose the testator being, at the date of the will, seised in fee of lands in the parish of A., and having a special power of appointment over other lands in the same parish, makes a devise of all his lands at A., which might, if he had no other lands there, be deemed an execution of the power, and afterwards sells the former; if the will is to speak from his death, the latter will pass. If he does not sell them, the former only. Again, if at the time of devising he have only the lands comprised in the power, and subsequently purchase fothers, the purchased lands only will pass by the devise, otherwise the power will be executed. But it is clear that in these cases the construction will depend not on the intention of the testator at the time of devising, but on subsequent independent events. The will, in effect, will be varied by collateral circumstances, and a devisee be entitled to one estate or the other according as the testator has bought or sold since the making of his will. On the other hand, to make it speak from any other time it must clearly appear on the face of the will that the testator so intended. (Sec. 24.) It is probable therefore that the effect of these enactments will be to make it necessary to refer specifically to the restricted power, or to point specifically to the property in order to avoid such an inquiry. As future acquired estates may now be devised, the argument that the testator might have given in anticipation of acquiring it, may be applied as well to wills of realty as of personalty. If this be so, a devise of "all my lands in the parish of A." will not pass lands covered by the power, though the devisor has no other lands upon which it can operate. As to personal property the rule was, that there must be some reference to the power, for as every person must be possessed of some personalty, there was enough to make a general bequest operative without reference to the property comprised in the power, and the court would not, it seems, look into the circumstances of the testator at the time of making his will, for the purpose of collecting his intention (o); though the whole of his own estate was exhausted by and inadequate to the payment of the legacies (p). He may have given in anticipation of acquiring the property, so that the bequest was not considered to afford any evidence of an intent to execute the power. And according to some authorities it was immaterial that the precise sum over which the power rides was given, and there was no other fund (q). But this rule was disapproved of by more than one learned judge, and Lord Eldon said in Nannock v. Horton (r), that he (0) Jones v. Tucker, 2 Meriv. 533. (p) Bennett v. Abarrow, 8 Ves. 609. (q) Jones v. Tucker, 2 Meriv. 533; Jones v. Curry, 1 Swau. 66; 1 Wils. Ch. R. 24. (r) 7 Ves. jun. 391. was not sure it did not defeat the intention nine times out of ten. By virtue of this clause a general power of appointment will be presumed to be executed if there are any words applicable to the subject of it, but as to a limited power it seems there must be some reference to it, or the property will not pass. without any words of shall be XXVIII. And be it further enacted, A devise that where any real estate shall be devised to any person without any words limitation of limitation, such devise shall be con- construed strued to pass the fee simple, or other to pass the 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. This section introduces a rule of construction which has been an acknowledged desideratum for ages. In obedience to that governing principle of English law, that the heir shall not be disinherited by implication, it has been long settled that a simple devise of lands without words of limitation conferred on the devisee an estate for life only, notwithstanding that the testator might in other parts of the will have evinced an intention to dispose of his whole estate (s), or have given a legacy to the heir (t), or the property to a class embracing him as children (u), or have immediately before devised an estate expressly for life, implying therefore that he meant something more by an indefinite devise (x), (s) Denn v. Gaskin, Cowp. 657. (t) Doe d. Callow v. Bolton, 2 Bl. 1045. fee. |