1820. BRUCE v. BAINBRIDGE. to be due from him as executor to his father's will, except two legacies of 1007. each, given by his said father's will to the two sons of his late sister Sarah Roberts, should be paid out of his real and personal estate, which he charged with the payment thereof, devised as follows: "And as touching and concerning all the real and personal estates as well in England as Ireland, which I am seised, possessed of, or otherwise entitled to, either in possession, reversion, or remainder, after payment of the said debts and legacies, I give, devise, and bequeath the same in manner following; (that is to say) I give, devise, and bequeath to my brother George Bruce, esquire, of the city of Cork, all my real and personal estate in lands, tenements and hereditaments, or otherwise, both in England and Ireland, to hold to him, his heirs and assigns for ever, subject and chargeable nevertheless with the payment of the aforesaid debts, and subject and chargeable also with the payment of the several annuities and legacies hereinafter given, devised, and bequeathed by this my will."-Then followed directions as to the payment of several annuities and legacies to the devisor's relations and friends; and the will concluded with the following clause : " Item, all the rest, residue, and remainder of all my real and personal estate in England and Ireland, not heretofore disposed of, I give, devise, and bequeath unto my said brother George Bruce, esquire, his heirs, executors, administrators and assigns for ever; and I do hereby appoint, nominate, and constitute my said brother George Bruce sole executor and residuary legatee to this my last will and testament, hereby revoking all former wills by me heretofore made."-By a codicil, dated the 18th of February, 1779, and duly executed to pass real estates, the devisor, after reciting the above will, and that he had appointed his brother George Bruce, lately deceased, residuary legatee and sole executor thereof, he nominated, constituted, and appointed his nephews Jonathan, and George Evans Bruce, executors of his said will, in the room of their father, de pos ceased. Then, after reciting that his brother, deceased, had by his will appointed the devisor residuary legatee and sole executor thereof, whereby he was legally seised and sessed of all the estates real and personal not otherwise disposed of by him; and that the devisor was seised and possessed of a considerable fortune, both real and personal, which, by his will, he intended for his said brother, deceased, except such parts thereof as were therein otherwise disposed of, he, by the codicil, willed and disposed of the fortunes aforesaid, in manner and form following.-Here followed a bequest of pecuniary and other legacies to the devisor's relations, friends, and servants, and a devise of tithes and of a term of lands in Ireland, to his nephew Jonathan Bruce; and the codicil then contained the following clause : "To my nephew George Evans Bruce I devise, give, and bequeath all my estates, lands, tenements, and hereditaments in Hertfordshire, Finchley, and Middlesex, in England, which I am seised or possessed of in right of my late wife.”— The devisor then devised certain lands in Ireland to his nephews Lewis and Charles Bruce, and bequeathed certain stock standing in the long annuities to two trustees, in trust for his nephew Saul Bruce; and the codicil then proceeded as follows: "And further, it is my will, that my said nephews shall not be entitled to the actual seisin or possession of the several estates, bequests, and annuities herein devised and bequeathed to them, until they shall respectively attain their several ages of twenty-one years, and that the issues and profits thereof, over and above what shall be thought necessary for their respective maintenances and education, shall annually accumulate for their respective uses as soon as they shall attain their several ages aforesaid; and if one or more of my said nephews shall happen to die before he or they shall attain his or their ages of twenty-one years as aforesaid, then, and in that case I devise and bequeath the estate and estates of what nature or kind soever, hereinbefore de 1820. BRUCE v. BAINBRIDGE, 1820. BRUCE v. BAINBRIDGE. vised and bequeathed to him or them so dying, to my nephew Jonathan, and his issue lawfully begotten; and if he shall happen to die without issue, then I devise and bequeath the estates which he shall derive or be entitled to under and by virtue of this my will, to his next brother George Evans Bruce; and for default of such issue in the said George Evans, then the estates of the said Jonathan and George Evans, to go and vest in my nephew Lewis, and his issue as aforesaid; and for default of such issue in the said Lewis, then the estates of the said Jonathan, George Evans, and Lewis, to go to and vest in my nephew Charles, and his issue as aforesaid; and for default of such issue in the said Charles, then the estates severally herein devised and bequeathed to his brothers aforesaid, to go to and vest in my nephew Saul and his issue in like manner; and for default of such issue in the said Saul, then the whole of the estates devised and bequeathed to her brothers as aforesaid, to go to and vest in my niece Catherine Bruce and her issue, in such manner and under such restrictions and limitations as she shall think proper to dispose of the same, to and amongst her said issue; it being the intent and meaning of this my last will to prevent waste, by making the several children of my brother George, deceased, tenants for life only. And further, it is my will, that such of my said nephews as shall marry, shall be authorized hereby to make reasonable settlements upon such wives as they and each of them shall take, and dispose of their respective estates to and among the issue of such marriages, in such manner as they shall think proper to limit and appoint the same.-All the rest and residue of my worldly substance, of what nature or kind soever or wheresoever, not already disposed of by this my codicil, or by my last will, to which this is annexed, I devise, give, and bequeath to my nephews and niece aforesaid, except my nephew Saul, who is to take no part thereof, (being amply provided for otherwise) to be divided among them, share and share alike, at their respective ages of twenty-one years; and if one or more of them shall happen to die before he, she, or they shall severally attain his, her, or their respective age or ages of twenty-one years, then, I will and direct, that the share or shares of him or them so dying, shall go to the survivors and survivor of them." The question for the opinion of the Court was, what estate the plaintiff George Evans Bruce took under the above will and codicil in certain lands situate at Totteridge, in the county of Hertford (a)? The case came on for argument in the course of the last Term, when Mr. Serjt. Lawes, for the plaintiffs, submitted, that it was only necessary to advert to the will of the 22d of October, 1778, to shew, that the testator did not intend to die intestate as to any part of his estate. That intent is manifested in the body of the will; if not, the residuary clause would embrace every part of his property which might have been previously omitted. The codicil on which the question arises, refers to the will. Although the testator there stated, that he was possessed of considerable "fortune," that word must receive the same construction as if he had used " estate,”—as it refers to both his real and personal property. Effect must be given to the intent of the testator, as consistent with the rules of law, and tenor of the whole of the instruments. It is quite clear, that under the devise to the plaintiff Bruce, contained in the first clause in the codicil, the fee would have passed to him under the word "estates," accompanied as it was by the following words and description of the counties in which they were situate. Holdfast, d. Cowper v. Marten (b). Fletcher v. Smiton (c). So, the mere circumstance of locality will not have the effect (a) The defendant had purchased the lands in question, part of which belonged to the plaintiff Bruce under the above will of his uncle; and it was objected, that he could not make a good title to convey it in fee. (b) 1 Term Rep. 411.- (c) 2 Term Rep. 656. 1820. BRUCE v. BAINBRIDGE. 1820. BRUCE v. BAINBRIDGE. of restraining such a devise. Roe, d. Child v. Wright (a). If, however, it be contended, that the fee did not pass, in consequence of the subsequent limitations to the different other nephews of the testator in succession, and their issue, still, the words of the devise are at least sufficient to create an estate tail; for the word "issue" in a will, is equivalent to "heirs." The rule is laid down in Shelley's case (b), that "when the ancestor, by any gift or conveyance, takes an estate of freehold, and, in the same gift or conveyance, an estate is limited, either mediately or immediately to his heirs in fee, or in tail; that always in such cases the heirs' are words of limitation of the estate, and not words of purchase." The codicil contains no limited or qualified words to prevent the operation of that rule; for "default of issue" must have the same meaning as if the devise were made to the plaintiff and his issue in direct terms. The case of King v. Melling (c), is scarcely distinguishable from the present, and its authority has never been questioned. There, the devise was to A. for life, and after his death to his issue by a second wife (his first wife being then alive), and for default of such issue, to B., with power for A. to make a jointure to his second wife for her life; and it was held that A. took an estate tail; and Lord Hale there said (d), "Another objection was, that there being a power appointed to A. to make his wife a jointure, it shews, that it was intended he should have but an estate for life, which needed such a power, and not an estate tail 1; for then he might have made a jointure without it;”—to which his Lordship answered, "that tenant in tail, cannot, by virtue of such estate, make a jointure, without discontinuing or destroying his estate." It is quite clear, that the testator intended that his nephews should take estates tail in succession, as, in case of their deaths without issue, he devised the whole of his estates before given to them to his (4) 7 East, 259,- -(b) 1 Rep. 104, (a).- (c) 1 Vent. 214. 225. (d) 1 Vent. 232, |