[Wills referring to deeds.] Clause of perfect mind and memory. [137] Also where the testator by his will maketh no other disposi tion of his estate than the law itself would have done, had he been silent; there such a will is useless, and shall be rejected: and therefore if a devise be made to a person and his heirs, which person is heir at law to the devisor; this is a void devise, and the heir shall take by descent as his better title; for the descent strengthens his title, by taking away the entry of such as may possibly have right to the estate; whereas if he claims by devise, he is in as by purchase. Gilb. 110. 2 Bac. Ab. 79. (3) Also devises are void and rejected, where the words of the will are so general and uncertain, that the testator's meaning cannot be collected from them; and therefore where a man by will gave all to his mother, the general words did carry no lands to his mother, for since the heir at law hath a plain and uncontroverted title, unless the ancestor disinherits him, it would be severe and unreasonable to set him aside, unless such intention of the testator is evident from the will; for that were to set up and prefer a dark and at best but a doubtful title, to a clear and certain one. Gilb. 112. 2 Bac. Abr. 81. (m) [Wills frequently refer to deeds and other written instruments, which are then taken to be part of the will, and explanatory thereof. Metham v. D. of Devon, 1 P. Wms. 529. 8 Vin. Ab. Ch. Rep. 265. Hawtree v. Trollop.] 45. The clause of perfect mind and memory is more usual than necessary in a will; and yet not hurtful. Swin. 77. But in case of a contestation, it is necessary to prove the sanity of the testator. 2 Atk. 56. 13. A devise made in fee-simple, without express words of What words heirs, is good in fee-simple: But if a devise be made to A. B. he shall have the land but for term of life; for these words will carry no greater estate. Terms of the Law, tit. Devise. Black. Rep. 1045. (4) will pass a fee-simple, or a life estate only. If a man devise all his estate which he hath in such a place, (3) See Hedger v. Rowe, H. 1682. Godolph. 461. I Rol. Ab. 610. Hob. 30. 4 Bro. C. C. 441. 3 Lev. 127, 128. Moor. 680. Lytton v. Lytton, M. 1795. (m) So where it was uncertain which of two limitations personal property directed to be laid out in land, and therefore considered as land, was to follow, it was decreed to the heir at law. Leslie v. Devonshire, 3 Bro. C. C. 188. [Where the literal force of expressions differs in a will, it must be a true rule to seek for the intention of the devisor rather in a consistent and rational, than in a contrary purpose; and more especially where the difference may arise only from the devisor not having present in his mind an event which is not in the natural order of things. Jenkins v. Herries, 4 Madd. Rep. 67.] (4) And see Co. Lit. 4. Pocock v. Bp. of Lincoln, 3 Brod, & B. 27. 1 Pri. Rep. 353. S. C. Doe d. Wood v. Wood, 1 B. & A. 518. without mentioning the heirs of the devisee; courts of equity have held, that it shall extend to such heirs, for that the word estate implies the whole property and interest therein: especially in the case of children, to whom the parent, unless there is some express limitation, cannot intend a life-estate only. By lord Hardwicke, in the case of Bailis and Gale, Nov. 6, 1750, 2 Ves. 48. (5) (5) The word "estate" or "estates" in a will carries the fee, unless coupled with words which shew a different intention. Fletcher v. Smiton, 2 T. Rep. 656. Tilley v. Simpson, cor. lord Hardwicke, ib. 659. Bridgwater v. Bolton, I Salk. R. 236. Barry v. Edgeworth, 2 P. Wms. 522. Ibbetson v. Beckwith, Ca. t. Talb. 157. Tuffnell v. Page, 2 Atk. 37. Nicholls v. Butcher, 18 Ves. 193. Chorlton v. Taylor, 3 V. & B. Rep. 160. And see all the previous cases on this subject, collected and reviewed by lord Ellenborough, in Roe d. Child v. Wright, 7 East, R. 259.; and see Roe d. Allport v. Bacon, 4 M. & S. 366. Chichester v. Oxenden, 4 Taunt. R. 176. Randall v. Tuchin, 6 Taunt. 410. 2 Marsh. 113. S. C. Harding v. Gardner, 1 Brod. & Bing. 72. Gardner v. Harding, 3 B. Moore, R. 565. Semb. overruling Pettiward v. Prescott,7 Ves. jun. 546. "All my estates in law and equity" in a will passes personalty to be laid out in land. Rashley v. Masters, 1 Ves. jun. 204. "Whatsoever else I have in the world not before by me disposed of," and "all I am worth," passes real estate. Hopewell v. Ackland, 1 Com. Rep. 164. Huxtep v. Brooman, 1 Bro. C. C. 437. So "property" of itself carries the realty, though followed by "goods and chattels." Doe d. Wall v. Langlands, 14 East. Rep. 370. And see Doe d. Andrew v. Lainchbury, 11 East. Rep. 290. Patton v. Randall, 1 J. & W. Rep. 189. But this was held otherwise where there was no precedent reference to land, or introductory clause shewing any intention to dispose of the whole property; but on the contrary, in the introductory words of the will, the testatrix enumerated every article of personal property which she could recollect without saying any thing touching her land. Doe d. Bunny v. Rout, 7 Taunt. Rep. 79.; and see Dally v. King, 1 H. Bla. Rep. 1. "Manors, messuages, lands, tenements, and hereditaments," do not pass leasehold messuages, except devisor's evident intention appear so. Thompson v. Lawley, 2 B. & P. Rep. 303. But "farm" will if testator's intention appear. Lane v. Stanhope, Earl, 6 T. Rep. 345. "House" passes every thing occupied with it as proper and convenient for its occupation, though the word "appurtenances" be not added. Doe d. Clements v. Collins, 2 T. Rep. 502. "Messuage with the appurtenances" does not pass land usually occupied with a house, unless it is clear that the testator's intention was to extend the word "appurtenances" beyond its technical sense. Buck v. Nurton, 1 B. & P. Rep. 53. Quære, whether a devise of " lands to A. after payment of my just debts and funeral expenses," carries the fee. 3 Anst. 781. Devise of "a house to A. paying yearly and every year out of the said house the sum of 15s. to B.," will carry a fee. Goodright d. Baker v. Stocker, 5 T. Rep. 13. But the word "hereditaments" alone was held insufficient to carry a fee; and an estate for life only passes. [138] If lands be devised to a man, to have to him for ever, or to have to him and his assigns; in these two cases, the devisee shall have a fee simple: but if it be given by feoffment in such manner, he hath but an estate for term of life. Terms of the Law, tit. Devise. If a man devise his land to another, to give, sell, or do therewith at his pleasure or will; this is fee-simple. Id. A devise made to one and to his heirs male, doth make an estate tail: but if such words be put in a deed of feoffment, it shall be taken for fee-simple; because it doth not appear of what body the heirs male shall be begotten. Id. If lands be given by deed to one, and to the heirs male of his body, who hath issue a daughter, who hath issue a son, and dies; there the land shall return to the donor, and the son of the daughter shall not have it, because he cannot convey himself by heirs male, for his mother is a lett thereto : but otherwise it is of such a devise; for there the son of the daughter shall have it rather than the will shall be void. Id. If lands be given by deed to one and his heirs for ever, and if he die without heirs then to his brothers or sisters; this last is void, because the first gift conveyeth unto him the fee-simple; but in a will, such devise over is good, and such limitation shall convey but an estate tail: As in the case of Tyte and Willis, M. 7 G. 2. The testator devised his lands to his wife Jane for life, the remainder to his son Henry for life, remainder to his son George and his heirs for ever; and if he died without heirs, then to his two daughters Katherine and Jane. The question was, whether George took a fee-simple, or only an estate tail. And the case of Webb and Herring, Cro. Ja. 415., was cited, to prove that where a devise is to one and his heirs, and if he die without heirs, remainder over to another, who is or may be the devisor's heir at law, such limitation shall be good, and the first limitation construed an intail, and not a fee, in order to let in the remainder-man; but where the second limitation is to a stranger, it is merely void, and the first limitation is a fee-simple. And by the lord chancellor : In this case, George took an estate tail. The difference which hath been taken is right; and the reason of it is, that in the latter case there is no intent appearing to make the words carry any other sense than what they import at law; but in the former, it is impossible that the de Denn d. Moor v. Mellor, 5 T. Rep. 558. 3 Anstr. 781. S. C. and S. P. note. visee should die without an heir, while the remainder-man or his issue continue. And therefore the generality of the word heirs shall be restrained to heirs of the body; since the testator could not but know, that the devisee could not die without an heir while the remainder-man or any of his issue continued. Cas. Talb. 1. But in the case of Tilburgh and Barbut, Mar. 2, 1748; where the remainder-man, being of the half blood, could never possibly inherit, it was decreed by lord Hardwicke, that this being a fee mounted on a fee, it vested in the first taker, and the remainder over to the half brother was merely void. 3 Atk. 617. 1 Ves. 89. (n) If one devise to an infant in his mother's womb, it is a good [139] devise; but otherwise by feoffment, grant, or gift: for in those cases there ought to be one of ability to take presently, or otherwise it is void. Terms of the Law. (0) If one devise to a person by his will all his lands and tenements; here not only all those lands that he hath in possession do pass, but all those that he hath in reversion, by virtue of the word tenements. Id. If 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 lease for years: but if a man hath a lease for years and no fee-simple, and deviseth all his lands and tenements; the lease for years passeth, otherwise the will would be merely void. Cro. Car. 293. [Rose v. Bartlett. Pistol v. Richardson, 2 P. Wms. n. 459. (p)] If a man seised of freehold lands, and of the legal estate of copyhold lands, makes a general devise of all his manors, messuages, lands, tenements, and hereditaments, but makes no surrender of the copyhold lands to the use of his will; the copyhold (n) If a remainder be given by will after an estate tail, and the first estate never take place, the remainder vests in possession. Thus, if one devise to A. and the heirs of his body, and for default or want of such issue of A. to B., and A. die in the lifetime of the devisor leaving issue, the estate shall go to B. and not to the issue of A. See Hodgson v. Ambrose, Doug. 337.; and White v. Warner, cited in Dense v. Bagshaw, 6 T. Rep. 512. (0) 8 Vin. Ab. 85. [See as to Bastards, 131. n.] (P) And in the former case the word lands may be explained by other words, so as to pass a leasehold interest; as, "all his lands which he then stood seised or possessed of, or any ways interested in, and which were in the possession of A. B." Addis v. Clement, 2 P. Wms. 455. The word farm is sufficient to pass a leasehold estate, if such appear to have been the testator's intention. Lanev, Earl Stanhope, 6 T. Rep. 346. [140] Jands will not pass. By lord Hardwicke, in the case of Gibson and Styles, July 18, 1741. (q) The words (all my lands) in a devise, will pass a house; but the devise of a house doth not pass lands. Mo. 359. A devise of a messuage, will carry with it a garden and curtelage; otherwise of a house, unless it be with the appurtenances. 2 Cha. Ca. 27. The testator devised a house with the appurtenances. The question was, whether land in a field passed. And it was adjudged, that the land did pass; for it was in a will, in which the intent of the devisor should be observed. Godb. 40. But in a like case where it appeared upon evidence, that the house was copyhold, and the land freehold; it was adjudged, that the land could not in that case be said to be appurtenant, although it had been used with it. Cro. Eliz. 704. [And see Buck v. Nurton, ante, 137. note. Yates v. Clincart.] A devise of the inheritance, hath been held to be a devise of the lands. Sty. 308. If lands are devised to trustees, without the word heirs; yet by implication they must have an estate of inheritance sufficient to support the trust; for there is no difference between a devise to a man for ever, and to a man upon trusts which may continue for ever. 1 Abr. Cas. Eq. 176. If lands are devised to a man, paying several sums in gross; he hath a fee, though all the sums together do not amount to the annual rent of the land: for the devise shall be intended for his benefit; and if he had only an estate for life, he might die before he received the legacies out of the land, and consequently be a loser. Id. So if lands are devised to a man, in consideration that he release a sum of money due to him; he has a fee-simple, on his release of the debt: for the devise being intended for his benefit, an estate for life might be determined before he could receive the sum out of the land. Id. 177. But if lands are devised to a man, paying so much out of the profits of the lands; he takes but an estate for life: for although he takes the land charged, yet he is to pay no farther than he receives, and so can be no loser. Id. (r) (g) Vide 1 Eq. Ca. Abr. 124. pl. 14. (r) See this distinction taken in Collier's case, 6 Rep. 16. But if the expression" out of the rents and profits" be accompanied with other clauses which shew an intention to give a fee, the intention shall prevail. Frogmorton v. Holiday, 3 Bur. 1618. And if an estate is devised subject to an annuity, the fee shall pass, because the annuitant may survive the devisee. Baddely v. Leppingwell, 3 Bur.1533. |