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A Devise without any Words of

Limitation

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.

any

XXVIII. And be it further enacted, that where 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.o

strued to pass the Fee.

The Words "die without Issue," or

"die without leaving

Issue," shall

to mean die

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 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 Death. 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.P

Trustees or

except for a

Presentation

shall pass a

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.

P In ordinary language, when a testator gives an estate to a 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, "if he 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,

C

est.

"Dying with

out issue,"&c.

Trustees un

der an unli

where the

trust may endure beyond the life of a Person bene

tled for Life, 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 limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surficially enti- plus 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.

Devises of

Estates Tail

shall not

lapse.

Gifts to Children or other

Issue who

leave Issue

Testator's

Death 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.

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
satisfied by any and what less estate.
there cited.

demand a fee, or can be 1 Jarm. Dev. and cases

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

extend to

before 1838,

pur autre vie who die be

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

altered this

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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