and I think that according to Norton v. Ladd, where Ante, § 48. the devise was of a remainder, this is a good devise of the fee, unless there had been words to restrain it. How can the testator be thought to have given but a life estate herein to his child, when possibly the life of the Piton v. Banks, particular tenant might have lasted longer than that of contra. the child, and so the child have taken nothing at all? This proves he meant to give him a fee."

50. It has been a long-established rule in the construction of wills, that if a person devises lands, with a direction that the devisee shall pay a gross sum out of it, the devisee will take an estate in fee simple, without any other words; though the sum directed to be paid should not amount even to a year's rent of the land. This construction is founded on the principle that a devise of land shall in all cases be intended for the benefit of the devisee; now if a devisee was in cases of this kind only to take an estate for life, he might die before he received from the land the gross sum he had paid, and consequently be a loser by the devise.

1 Vern. 65.

dition of paying

a

Devise on consum of money. Cowp. R. 841.

1 Inst. 9. b.

Hammond,

Cro. Eliz. 204.

51. T. W. devised copyhold lands, of the nature of Willock v. borough English, to his eldest son; paying 40s. to each of his brothers and his sisters. took a fee.

Adjudged that he

3 Rep. 20. 6.

6 Rep. 16.

Price,

52. A testator devised lands to his brother, paying Collier's case, to one person 20s., and to others small sums, amounting to 45s. in all. The land was of the value of 31. per annum. Adjudged that the brother took an estate in fee. 53. A person devised all his estates, to A. paying Moore v. 401. a piece to his sisters. Adjudged a fee simple. 3 Keb. 49. And it appearing that the personal estate was not sufficient to satisfy legacies, it must consequently be intended his real estate. Besides, the devisee was not executor, and therefore it could not be intended of the the personal estate.

Gower,

54. A. by his will devised lands to B., and then be- Reeves v. queathed legacies; and gave 51. to C., and directed B. to pay it, but gave him two years for that for that purpose. The

11 Mod. 208.

Or charged with debts and lega

cies.

Ackland v.
Ackland,

2 Vern. 687.

Freak v. Lea,

jury found the land to be worth fifty shillings a year. It was adjudged that B. took a fee; for the devise was of a sum in gross, and debitum in præsenti solcendum in futuro. Besides, it was a sum certain, to be paid to B. at all events, whether the land yielded full five pounds or not, and so not like the cases where the sum devised was to arise out of the profits.

55. A devise of lands, charged with the payment of debts and legacies, will, for the same reason, pass an estate in fee simple.

56. A person devised to his brother Richard all his lands, tenements, and hereditaments, and whatever else he had in the world, and made him executor, desiring him to pay his debts and legacies. Adjudged on a special verdict that the devisee took an estate in fee.

57. A. seised in fee of lands, made his will and gave 2 Show. R. 38. his cousin B. 201., to be paid out of his lands within one year; and after other legacies, he gave all his lands to Richard, generally. Adjudged, that Richard took an estate in fee.

Doe v.
Richards,

58. A will was made in these words,"All the rest, 3 Term R. 356. residue, and remainder of my messuages, lands, tenements, hereditaments, goods, chattels, and personal estate whatsoever; my legacies and funeral expenses being thereout paid; I give, devise, and bequeath unto my sister J. D. and constitute and appoint her my executrix, and residuary legatee, of this my will."

Vide Denn v. Miller, Infra, ch, 13.

Lord Kenyon said, that the first words alone were not sufficient in law to carry a fee; but that he relied on the words immediately following," my legacies and funeral expenses being thereout paid," as sufficient for that purpose: for the fund which was to answer those demands, ought to be as ample as possible. Those charges extended to, and were to be taken out of, the property which was before given to the residuary legatee; and if that devise did not comprise the whole of the devisor's estate, the interest as well as the land, the legacies and funeral expenses might not be paid.

8 Term R. 1.

59. A person devised in these words,-" I give and Doe v. Holmes, bequeath my freehold house with the appurtenances, &c. and all furniture thereto belonging, to E. G. whom I make executrix of this my last will; she paying all my just debts and funeral expenses, and legacies before mentioned, twelve months after my death. I likewise leave to the said E. G. all the rest and residue of my personal estate."

The Judge before whom the cause was tried being of opinion that the devisee took a fee, by reason of the words," she paying all my debts," nonsuited the plaintiff.

On a motion to set aside that nonsuit, Lord Kenyon said: "I am clearly of opinion that the direction given at the trial was perfectly right. In cases of this kind the question has always been, whether the charge is to be paid only out of the rents and profits of the estate, or whether it is to be paid by the devisee at all events; in the former case the devisee only takes an estate for life, but in the latter he takes a fee, otherwise he might be a loser by the devise. Here the devisee is bound to pay the debts and legacies at all events; and the charge is thrown on her in respect of the real estate. The personalty is given to her by the next clause in the will."

60. A person devised in these words,-" All the rest I have in the world, both houses, lands, goods and chattels, stock in trade, and all other things that belong or may belong to me, I give to my present wife J. P., my executrix; so that she shall sell my stock in trade and household goods, and if these will not pay the debts she shall sell next the house of fee in Penzance, and not Prospednick; so that my executrix shall pay in good time all lawful debts."

Lord Ellenborough said it was clear that the executrix and residuary legatee took a fee in the premises in question; for she was charged with payment of all the debts, and she had the land devised to her, as well

Goodtitle v. 4

Maddern,

East, 496.

as the personal estate, all in the same clause, in order to enable her to satisfy that charge; and she could not have less than a fee in it, because she was empowered to sell it, which she could not do without having the fee as to what was said in the will relative to the sale of the stock in trade, and household goods, in the first instance, for payment of debts, and if those were not sufficient, then the house in Penzance, that was merely, directory to her, to apply the personalty first for payment of debts, before the realty, which was no more than what the law directs in the common case. The distinction turned in all the cases on this, whether the Doe v. Snelling, debts, &c. were merely a charge on the estate devised, or a charge on the devisee himself, in respect of such estate in his hands.

5 East, 87.

Or with a perpetual annual payment.

Shailard v.

Baker,

Webb v.
Herring,

Cro. Ja. 415.

Judgment, that the devisee took an estate in fee.

61. The cases where the payment of debts and lega-, cies is charged on the estate devised, and not on the devisee, will be stated in the thirteenth chapter.

62. Where lands are devised, with a direction that the devisee shall make a perpetual annual payment thereout, the devisee will take an estate in fee simple; for otherwise he could not fulfil the intention of the testator.

63. A. devised lands to C. a younger son, and willed Cro. Eliz. 744. that C. should pay annually to his eldest son B. and his heirs, 31. Resolved that this was an estate in fee. 64. Lands were devised to I. and S., and they were to pay yearly to the merchant tailors of London, 67. 10s. It was resolved that the devisees took a fee simple, by reason of the annual payment, without any regard to the greatness or smallness of the sum: as the charge continued for ever, the estate must continue so too, for without the estate the charge could not be.

Smith v. Tindal,

2 Salk. 685.

65. A person devised four coats to four boys of the 11 Mod. 102. parish of D. for ever, and all his lands, tenements, and hereditaments, and all his personal estate to his wife, and her assigns. Adjudged, that the wife had a

fee simple, because she took the lands with a perpetual charge.

of a third per

son.

66. A devise upon condition of paying an annual or for the life sum to a third person, during the life of such third person, will give the devisee an estate in fee simple; for otherwise the annuity might cease before the death of the person to whom it was given.

2 Show. 49.

67. A person devised lands to A. B. conditionally Lee v. Stephens, that he should allow to his son Nicholas, meat, drink, &c. during his natural life. It was argued that this was a fee simple; for Nicholas had no manner of provision else: it was plain the testator designed the maintenance to be for Nicholas's life; and not that when A. B. should die, Nicholas should starve; therefore it was clear that A. B. must have a larger estate than for his own life, for otherwise, instead of having a benefit by the will, he would be prejudiced by it, if he should perform the testator's will.

2 Mod, 25.

Adjudged that A. B. took an estate in fee simple. 68. A person devised two houses to his son Ro- Reed v. Hatton, bert, upon condition that he should pay unto his two sisters 51. a year, with a clause of entry for nonpayment.

The Court was of opinion that a legacy or devise was always for the benefit of the party; so that it was reasonable to make such construction of the will, that he might have no possibility of a loss; for if there was a devise to one, upon condition that he paid a sum of money; if there was a possibility of a loss, though not very probable, it should be construed a fee; and therefore the estate in this case being limited to Robert, and charged with payments to the sisters, during their lives, plainly proved the intent of the testator, that the devisee should have an estate in fee simple. Judgment was given accordingly.

69. T. Ives devised a house to Clement Boreham for Baddeley v.

his life, paying thereout 40s. a year to Robert Boreham the testator's grandson; and gave two copyhold tene

Leppingwell,

2 Burr. 1531. Wilmot, 223.