House or 333. Hob. Rep. 29. Wright v. 3. It was held in Queen Elizabeth's time, that a The words devise to one brother, on a condition, and on failure to Family remain to the house, should be construed to mean to Chapman's the most worthy in blood of the devisor's family, that is Case, Dyer, to say, to the heir at law. Lord Hobart has assented to this decision, and it has been confirmed in two modern cases, one of which has been already stated. 54. With respect to the words that are necessary to describe the property intended to be devised; as and Sel. 126 a will is always construed in the most favourable man- What words ner, for the benefit of the devisees, the same accu- necessary to racy is not required in the description of those things Things dewhich are intended to be devised, as is necessary in a deed; it being enough if the words denote, with sufficient certainty, what is meant to be given. 17, Doe v. Smith, 5 Mau. describe the vised. ments, and ments. Rashleigh v. 55. The words lands, tenements, and hereditaments, Lands, Tenewill pass every species of property. And in a modern Hereditacase it was determined that, money, directed to be laid out in the purchase of lands, would pass by the Master, words lands, tenements, and hereditaments whatso- 3 Bro. R. 99. ever and wheresoever.. Cro. Eliz. 56. The words, all my lands, are sufficient to pass Cro a house. If, however, it appears not to have been the intention of a testator to give a house by those words, they will not have that effect. 57. A person being seised of a house in Dale, and Ewer v. ་ ་ sonal estate to the next of kin.-Search was made for this case, on the discussion of the late case of Wright v. Atkyns.-The case is Golding v. Rogers, and was decided at the Rolls on the 3d July, 1732. Samuel Fitzall devised all his messuages, &c. in the county of Gloucester and elsewhere, in Great Britain, to his wife, her heirs and assigns, and all the residue of his monies, &c., and all other his real and personal estate, he devised and bequeathed to his said wife, her heirs, executors, &c. But his will was, that a after his said wife's decease, his own family should have equally amongst them one moiety of his said residuary estate. Held that one moiety of the residuary personal estate belonged to his next of kin, and that the wife was entitled, by the express words of the will, to the real estate in fee simple. " Hayden, Cro. Eliz. 476. Woodden v. 674 Messuage and Carden v. of three houses and certain lands in Sale, devised his house in Dale and all his lands in Sale to B. It was resolved that the houses in Sale did not pass, on account of the express mention of the house in Dale; for, expressum facit cessare tacitum : and if the testator had intended to devise the houses in Sale, he would have mentioned them, as well as he did the house in Dale. 58. One Bishop being seised of divers lands called Hayes Lands, which extended into two vills, Cokefield and Cranfield, devised all his lands in Cokefield, called Hayes Lands, to his youngest son and his heirs and in another part of his will he devised, that if his youngest son died without issue, his wife should have Hayes Lands. ; The question was, whether the wife should have Hayes Lands in Cranfield, or only in Cokefield. And it was resolved by the whole Court, that she should have that only which was in Cokefield, because there was no more devised to the youngest son. But Popham said, if the devise had been to the eldest son, and that if he died without issue, his wife should have Hayes Lands, there peradventure she should have all; because the eldest son had all, the one part by devise the other by descent; and she should have all which he had. 59. A devise of a messuage will carry with it the curtilage and garden annexed to such messuage, even without the word appurtenances; for they constitute a part of the messuage. It was formerly held that 2 Cha. Ca. 27. the word house did not, in a will, carry the garden or curtilage belonging to such house, without the word appurtenances. But this doctrine is now somewhat altered. Doe v 2 Term R. 60. A. being tenant for years of a house, garden, stables, and coal-pen, occupied by him, devised in the following words: "I give the house I live in and garden to B." It was resolved that the stables and coal-pen passed, they not being specifically given in the subsequent part of the will; though the testator used them for the purpose of trade, as well as for the convenience of his house. Norton, 1 Bos. and Pul, 53. 61. In a subsequent case it was determined by the Buck v. Court of Common Pleas, that lands usually occupied with a house, did not pass under a devise of a messuage with the appurtenances; it not appearing that the tes tator meant to extend the word appurtenances beyond its technical sense. Doe v. Roberts. 5 Barn and Ald. 407. Estate. 62. The word estate will pass every kind of property The word of a real nature, unless restrained by other words. 236. 63. The Earl of B., by his will, gave part of his per Bridgwater v. sonal estate to his son-in-law, and then added these Bolton, 1 Salk. words: "And all other my estate, real and personal." The question was, whether fee farm rents passed by this devise. Lord Holt delivered the opinion of the Court, that Barnes v. Patch, 8 Ves. the rents passed by the words, all my real and per- 604. sonal estate; for the word estate was genus generalissimum, and included all things real and personal. 64. Even the words, personal estates will pass free- Doe v. Tofield, hold lands, if it appear that the testator used them 11 East, 246. in that sense. 6 Term R. 610. 65. But where a person gave 4,000l. to trustees in Doe v. trust for certain persons, and by a residuary clause Bucknor, gave all the rest of his estate and effects, of what nature soever, to A. and B., their executors and administrators, in trust to add the interest to the principal, so as to accumulate the same; it being his will that the residue should not pass, but at the time and manner as the principal sum of 4,000l. was directed to be paid. It was held that these words did not extend to a freehold house, of which the testator was seised. And Lord Kenyon relied on the following words of the clause," to add the interest to the principal, so as to accumulate the same." The interest and principal were All my Rents. Kerry v. Cro, Ja. 104. All I am worth. Huxlop v. to make one consolidated sum of the same nature; but these were terms wholly inapplicable to a real estate. 66. The words all my rents, are sufficient to pass real estates; for it is according to the common phrase and usual manner of some men, who name their lands by their rents. 67. A person having let several houses and lands for years, rendering several rents, made his will in these words: "As concerning the disposition of all my lands and tenements, I bequeath the rents of D. to my wife for life, remainder over in tail." The question was, whether by this devise the reversions passed with the rents of the lands. For it was contended that the rents, divided from the reversions, were not devisable within the statute, the devisor having no reversion therein. The Court resolved that the land itself passed by the devise; for it appeared to be the intention of the testator to make a devise of all his lands and tenements, and that he intended to pass such an estate as should have continuance for a longer time than the leases should endure; and the words were apt enough to convey it, according to the common phrase and usual manner of some men, who name their land by their rents. 68. The words, all I am worth, without any other words to control them, will pass real as well as personal estate. 69. A testator having given all the overplus of his 1 Bro. R. 437. money to the son and daughter of I. S., proceeded in these words, "I give and bequeath to them all I am worth, except 201. which I give to my executor." It was contended, that there being no expression in the will which pointed at the real estate, the personalty could only pass. But it was decreed that these words carried both the real and personal estate. The word 70. The word legacy may be applied to a real estate, if the contents of the will show that such was the testator's intention. Nash, 71. A. by will gave two legacies, of 150/. each, to his Hardacre v. son and daughter, to be paid when they attained the 5 T. R. 716. age of 21. He then gave all his realty and personalty to his wife for life, and, after her death, he gave one freehold estate to the son, and another to the daughter; but if either or both of his children should die before the wife, then those legacies which were left to them should return to the wife. Lord Kenyon said, the question was, whether those words of remainder operated on the real estates before given to the son and daughter, or only referred to the pecuniary legacies? The Court had considered the whole of the will, and was of opinion that those words acted upon the real estates before given to the son and daughter. Considerable stress had been laid on the word legacies, and it was argued that it was an appropriate term, applicable to personal estate only. But the same technical and correct expressions were not to be expected from unlettered persons, as were usually found in wills drawn by professional men. Even if there were no decision to warrant the Court in saying that the word legacy might be applied to a real estate, if the context required it, he should have had no difficulty in making such a determination for the first time. But that construction had already been put on the word legacy in the case of Hope v. Taylor; and the Infra, c. 12. Court fully subscribed to the doctrine there laid down. 72. The words, all the residue or remainder of my Residue, or estate, property, or effects, will pass real estates of every kind. remainder of estate. 5 Burr. 2638. 73. A person devised all the rest and residue of his Roe v. Harvey, estate, whatsoever and wheresoever, to his wife. It was contended that the word estate did not necessarily mean real estate; but Lord Mansfield answered, that the word estate carried every thing, unless tied down by particular expressions. 74. A person devised all the rest and residue of her estate, of what nature or kind soever. It was contended Doe, v. Chapman, |