"moveable effects "
mean chattels; money at the bank
would not be included.

Thirdly. The clause "all my children to be educated and settled in business according to my wife's discretion" does not create a charge either on the wife or on the estate: she is constituted the guardian of the children during her life, and that condition would not require a larger estate than for her life; Doe d. Ashby v. Baines (a). In some cases a request amounts to a gift to the person in whose favour the request is made; Foley v. Parry (b); but here is no specific charge. [They also cited Doe d. Small v. Allen (c), Moor v. Denn d. Mellor (d) in House of Lords, Burton v. Powers (e).] Further, the Court cannot say how much of her interest the wife should apply to the purposes specified; therefore the words do not create a trust binding on her; Thorp v. Owen (ƒ). [Blackburn J. referred to 1 Jarman on Wills, 248-9, 3rd ed.]

Joshua Williams and H. G. Allen, contrà.-The principle which guides the Courts in construing wills is that the intention of the testator is to be collected from the whole of the will. The feudal rules which govern the construction of deeds conveying real estate are now disregarded, and a lenient construction is put on the language used by the laity in wills: for instance, though a particular devise in a will is void, it is to be regarded in collecting the intention of the testator; 1 Jarman on Wills, 3rd ed., 277-8. In Nottingham v. Jennings (g)

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JACKSON.

(d) 2 B. & P. 247.

(e) 3 K. & J. 170.

(f) 2 Hare 607.

(g) 1 P. Wms. 23, 24.

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Holt C. J. said, "Though the eldest son shall not take
by this will, but shall be in by descent, and so the
devise over void in point of limitation, yet it is sufficient
to manifest the intent of the testator, and aid the con-
struction of an estate tail." [He also cited Biederman

v. Seymour (a).]

First. This devise should be read as one sentence,
and is tantamount to the testator saying "I give all my
worldly estate, viz., all my lands, messuages and tene-
ments, to my wife;" and therefore passes the fee. In
Right d. Mitchell v. Sidebotham (b), where the decision
in Denn d. Gaskin v. Gaskin (c) was followed, Willes J.,
p. 764, observed on Cole v. Rawlinson (d) that “the
whole devise was in one sentence: it was all one devise:"
and Buller J. said, "It is impossible for us to make this
only one devise, when the testator has made it two."
The words "as to all my worldly estate" at the
beginning of a will shew that the testator intended
that his will should operate on all the estate he had
in the world, both with regard to the quantity and
quality thereof; Grayson v. Atkinson (e), per Lord
Hardwicke; Ibbetson v. Beckwith (f), per Lord Talbot;
Loveacres d. Mudge v. Blight (g); though it may fail to
do so by reason of his not expressing to whom it
should go.
In Denn d. Gaskin v. Gaskin (c), besides
the devise of the freehold messuage to the sons of the
testator's sister, there were several legacies to other
relations, and therefore the will could not be construed

(a) 3 Beav. 368.

(c) Coup. 657.

(d) 1 Salk. 234; 2 Ld. Raym. 831.

(e) 1 Wils. 333-4.

(g) Coup. 352.

(b) 2 Dougl. 759.

(f) Cas. temp. Tallot, 157. 160.

as disposing of all the testator's worldly estate to the legatees of the messuage; and there were no words connecting the devise of the messuage with the introductory clause. In Smith v. Coffin (a) Williams Serjt. arguendo, referring to that case, said, "Lord Mansfield there makes a distinction between cases where the testator connects the introductory clause 'as to all his worldly estate' with the particular devise, and where there is no such connection." In Doe d. Small v. Allen (b) there was a specific devise of part of the testator's estate to A., and of other part to A. for a term of years, and from and after the term to the heirs of the testator: also the case found that he died seised of other tenements not devised by his will; and as it was dated the 20th March, 1762, and he died on the 22nd, he could hardly have acquired other lands in the interval. In Goodright d. Drewry v. Barron (c) there were several devisees, and the word "estate" in the introductory clause was completely disjoined from the devise in question and could not be brought down to join in with the latter clause.

Secondly. In Loveacres d. Mudge v. Blight (d) the words "freely to be possessed and enjoyed" were held to pass the absolute property of the estate. In Goodright d. Drewry v. Barron (c), where similar words were held not to carry a fee, the will contained a devise of a cottage to A. and his heirs, shewing that the testator knew how to give a legal fee when he so intended. [Blackburn J. In 2 Jarman on Wills, 254, 3rd ed., Goodright d. Drewry v. Barron (c) is cited as a decision "that a devise of lands to a person by her freely to be possessed and

(a) 2 H. Bl. 444. 449.
(c) 11 East 220.

(b) 8 T. R. 497.
(d) Cowp. 352.

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enjoyed' passes only an estate for life."] Some of the expressions in Jarman are too wide, and perhaps he would have qualified them if all the limitations had been presented in one devise.

Thirdly. The devise to the widow, if indefinite, was enlarged into a fee by the direction that all his children, which would include his heir, should be educated and settled in business according to her discretion; for it amounts to a charge on the estate; Broad v. Bevan (a), Foley v. Parry (b), affirmed on appeal (c) by Lord Brougham. And wherever a charge is imposed, though contingent and however small, it carries the fee, otherwise the devisee might be a loser by the devise; Doe d. Willey v. Holmes (d), per Lord Kenyon. [They also cited Doe d. Palmer v. Richards (e) and Goodtitle d. Paddy v. Maddern (f).] The discretion given to the widow does not prevent a trust being created for the children; Longmore v. Elcum (g), per Knight Bruce V. C.; Costabodie v. Costabodie (h). In Thorp v. Owen (i), where the words in a very informal will were, "I give the above devise to my wife that she may support herself and her children according to her discretion, and for that purpose," Wigram V. C. thought it a doubtful case, but came to the legal conclusion that the testator had given the property to his wife absolutely, merely expressing the reason why he had done so. Further, it is sufficient that the devise manifests an intention on the part of the testator that the widow should educate the children, though there is

only a moral obligation on her to comply with his wishes.

BLACKBURN J. After the arguments which we have heard, and the advantage of an interval for considering the case, it is unnecessary to take further time before delivering our judgment. The question is whether there is sufficient in this short will to shew that the widow of the testator took an estate in fee. We have come to the conclusion that upon the true construction of it she did.

The general principle in construing wills is to endeavour to collect the intention of the testator from the whole will; not the intention in the full sense of that word as a person not a lawyer would understand it; but the intention expressed in proper words according to the rules of law. At a very early period it was settled that a devise of lands or tenements to A. B. operated only to give an estate for life, and did not disinherit the heir, unless the testator's intention to do so was clearly expressed in other words or provisions of the will. The question whether such an intention was sufficiently expressed often led to great niceties, and the Courts have struggled to catch at expressions in order to carry out what they were persuaded was the intention of the testator. We however desire not to disturb previous decisions, which would cast doubt on titles to estates. In the first place it has been decided that where the word "estate" or some equivalent term is used, as if a testator devises "all my estate in Blackacre to A. B.," that sufficiently expresses his intention that the devisee should have the whole estate in B., and is to be construed as a demise of the inheritance. But, on the other hand,

[1867.]

LLOYD

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JACKSON.