Goodright v. Allin,

2 Black R. 1041.

Goodright v. Stocker,

ments to Sarah Boreham, she paying thereout 40s. a year to her sister Elizabeth.

The question was, what estate Sarah Boreham took. It was admitted that if this was an annuity for life to Elizabeth, it would make it a devise in fee to Sarah; and as this could not be effectuated without construing the inheritance to be given to Sarah, it raised a violent presumption that the testator intended her an estate of inheritance.

The Court was of opinion that Sarah took an estate in fee.

for

70. A person having a copyhold estate, after giving several legacies, gave to Mary Ramsay 20s. a a year her life, to be paid by his executors. He also gave to his kinsman T. Allin all his two yard-lands, with his house and homestead; and all the residue and remainder of his goods, chattels, debts, mortgages, leases and personal estate, he gave to the said T. Allin, he paying his debts, legacies, and funeral expenses; and made the said Allin executor. The question was, whether the devise to T. Allin was for life or in fee.

Lord Ch. J. De Grey said he thought the real estate devised to Allin was in fee simple; and that upon two grounds: 1. By implication; not indeed a necessary implication, strictly speaking, but so far necessary as it clearly arose from the reasonable construction of the will. The annuity was given to Mary Ramsay for her natural life, to be paid by his executor; which being of an uncertain duration, must have an estate in fee to support it. II. All the several devises to Allin followed each other immediately, and must therefore be construed as one clause; so that the payment of debts and legacies was charged on the real, as well as the personal estate. The other judges concurred.

71. A testator began thus-" As touching all such 5 Term R. 13. temporal estate," &c. and then devised a house to his grandson, paying yearly and every year out of the said dwelling-house, the sum of 15s. to his grand-daughter

Ibbetson v. §

Beckwith,

Lord Kenyon." Though the general introductory words used in this will would have some effect in the construction of the subsequent devises, as was said by Lord Talbot in a case before him; they would not of themselves carry a fee. But it has been very properly ante, $ 22. admitted, that the words, paying yearly and every year, are sufficient for that purpose. That annuity was intended to continue during the grand-daughter's life, though it is not so expressly mentioned; and therefore of necessity the grandson must take an estate in fee." Judgment was given accordingly.

Southouse,

72. The following case was sent out of Chancery Andrew v. for the opinion of the Court of King's Bench. A per- 5 Term R. 292. son devised certain estates to her sister for life, and after her decease, she gave the same to E. Southouse, charged with the payment of an annuity of 201. to J. T. for and during the term of his natural life.

The Court certified that E. Southouse took an estate in fee. And Lord Kenyon observed, that the determination in Ansley v. Chapman, was founded on more Infra, c. 13. limited grounds than those adopted in modern times.

73. Where lands are devised, with a direction that the devisee shall pay an annual sum out of the rents and profits of the lands, the devisee will only take an estate for life. The cases on this point will be stated in the thirteenth chapter.

limitation over.

74. It has been resolved in some modern cases, that A devise, with a a devise generally, with a limitation over, if the devisee dies under age, or without issue, will give the first devisee an estate in fee simple.

v. Holyday,

75. A person made her will, beginning as follows: Frogmorton As to my worldly affairs and estates, &c. I do dispose 3 Burr. 1618. thereof in manner following." She then gave to her son J. H. a certain house; and if the said J. H. should happen to die in his minority, or before he came to age, then she gave the said house to her three daughters.

Lord Mansfield said, the devise over, if the son should die under twenty-one, to the three daughters,

showed the intention of the testatrix to give a fee; for if he lived to twenty-one he might then dispose of it himself; if he died before, he could not, and then she disposed of it. If the son was barely to take an estate for life, the time of his death must be immaterial to the devise over; but limiting it over only upon the contingency of his dying in his minority, showed that she intended to give him an absolute estate in fee, which he might dispose of, if he came of age; and unless he lived to be of age, when he might dispose of it, she meant it should go to her daughters.

76. A person devised to the two children of his brother, when they attained the age of twenty-one years; but if either of them should die under the said age of twenty-one years, then the survivor should be heir to the other.

It was resolved, on the authority of the preceding case, that the devisees took estates in fee.

77. Upon a case sent from the Rolls for the opinion of the Court of King's Bench, the facts were:-A person devised to certain of her grandchildren, as tenants in common; but in case of the death of either of them, under age, and without leaving any issue, the share of the person so dying to go to the survivor. It was certified that the grandchildren took a fee.

78. Where lands are devised to trustees, for the purpose of performing any trusts which require the absolute property of them, an estate in fee simple will pass to the trustees, without any words of limitation; for there is no difference between a devise to a person in fee simple, and a devise to a person upon trusts which require an estate in fee simple.

79. A person gave all and singular his freehold, leasehold, copyhold, and also his personal estate, of what kind soever, to trustees and their executors, administrators, and assigns, in trust to and for several uses, to pay several annuities, sums, and legacies, by and out of the produce of the personal estate; if that

should happen to be deficient, then to pay the same by and out of the rents, issues, and profits arising by the real estate.

One of the questions in this case was, whether the trustees took an estate in fee under the devise.

Lord Hardwicke was of opinion, that the inheritance passed to the trustees, and said it had often been determined, that in a devise to trustees, it was not necessary the word heirs should be inserted, to carry the fee at law; for if the purposes of the trust could not be satisfied without having a fee, courts of law would so construe it; as in Shaw v. Weigh, and several other cases. Fitzg. R. 7. Here were purposes to be answered which by possibility, and that was sufficient, could not be answered without the trustees having a fee, viz. the paying of several annuities and large pecuniary legacies, if the personal estate was deficient, which would probably be the case; then how was the rest to be raised, barely by the rents and profits; it must be so, if it was a chattel interest, for then it could not be taken out of the estate by anticipation; but that could not be in this case, for if the pecuniary legacies were not paid out of the personal, the real must be sold to satisfy them; for several of them were to be paid within a year after the testator's death, and could not therefore be paid by annual perception. This then was a purpose which it was impossible to serve, unless the trustees had the inheritance; for if they were to sell a fee, they must have a fee.

3 Burr. 1684.

80. G. B. devised several sums of 31. a year, some Oates v. Cook, for life, and some in fee; and added, that these legacies were to be faithfully paid by his trustee J. C. every year. He also left to his trustee and executor 5l. to build a tomb for him, he and his heirs always to see that it was kept in order, and appointed the said J. C. his sole executor and trustee. The Court was of opinion, that all the estate of the testator passed to the trustee in fee; because the intention was clear, that he

Doe v. Gillard,

5 Barn, & Ald.

785.

Tit. 16. c. 8. Fearne Rem. 6th edit. 357.

What words pass the whole

interest in a chattel.

Fenton v.
Foster,
Dyer, 307.

Tit. 8. c. 2.

1 P. Wms. 666.

Fearne's Ex.
Dev, 278.

meant to devise his real estate in trust; and there were trusts to be executed, which the trustee could not effectuate, without having an estate in fee devised to him; for there were annuities in fee charged on the real estate, and the estate must be co-extensive with the charges.

81. In commenting on the case of Vick v. Edwards, Mr. Fearne observes, that the first words alone would, from the nature of the trust, have carried the fee to the trustees. The latter words did not give it from them; which indeed would have been an express negative upon the constructive operation of the first. But their effect was included in that of a devise to the trustees and their heirs, inasmuch as they expressly direct the fee to the same person as such a complete limitation would ultimately carry it to, viz. the survivor of the trustees.

82. In the case of chattels real, that is, terms for years, a general gift of them will pass all the estate and interest of the testator, without any additional words.

83. The termor of a messuage for forty years, devised the messuage by his will, without any words of limitation. It was resolved that the entire term passed, for the devisee could not have any estate in the house, at will, or for term of life, or for the term of any years, or a year, therefore the whole term passed.

84. A disposition of a term for years to a person and the heirs of his body, is a disposal of the entire interest in the term; for a term cannot be entailed. But a devise over of a term, after a prior disposition of it to a person for life, is good by way of executory devise ; of which an account will be given in a subsequent chapter.

85. It is said by Lord Parker, that a devise of a term to one for a day, or an hour, is a devise of the whole term, if the limitation over is void, and it appear at the same time that the whole is intended to be disposed of from the executors. But if such an intention does not appear; then it has been held that a limitation of a