of his grandson the Earl of Granville for life, remainder to his first and other sons in tail male; remainder to Lady Carteret for life; remainder to her first and other sons in tail male; and in default of such issue, "to the use of all and every the daughter and daughters of the body of the said Lady Carteret lawfully issuing, as tenants in common, and not as joint tenants; and in default of such issue, to the use and behoof of his own right heirs for ever." Lady Carteret had one daughter, Lady Catherine Hay; and the question was, What estate she took under this devise. A case was sent out of Chancery to the Court of K. B. for their opinion. Lord Kenyon.-"The general rule which is laid down in the books, and on which alone courts can with any safety proceed in the decision of questions of this kind, is, to collect the testator's intention from the words he has used in his will, and not from conjecture. It is not necessary that any technical or artificial form of words should be used in a will; but we must collect the meaning of the testator from those words which he has used, and cannot add words which he has not used. The objection then occurs in this case, voluit sed non dixit. The plaintiff's argument goes to show that the daughters took estates in tail general; but that could not have been the intention of the devisor, as no such estate is given in any part of the will, and the devisor has totally laid aside the daughters of the first devisee, and the daughters of his sons. The words here used, technically considered, only confer an estate for life on Lady C. Hay. It has been argued that we may presume an intention in the devisor, from other parts of the will, to give estates in succession to the daughters; but I cannot find any words in the will to warrant such a construction. If indeed the word such had not been introduced in this clause, we might perhaps have Ante, § 21. Doe v. 5 B. and A. 464. Foster v. Doe v. 5 Term R. said that as issue is genus generalissimum, it should include all the progeny; but here the word such is relative, and restrains the words which accompany it. This case is precisely similar to that of Denn v. Page there the Court held that sufficient did not appear on the face of the will to warrant them in saying that an estate of inheritance was given to the daughter that if it were left to conjecture, they might suppose that some mistake had been made in the limitation; but they could not determine on conjecture, nor put that in the devisor's mouth which he had not said." The certificate was, that Lady Catherine Hay took only an estate for life. 23. A person devised his estate to trustees and their heirs, until his nephew Thomas Foster should attain the age of 21 years, or die; and on his attaining 21, to the said Thomas for life; and after the determination of that estate, to the trustees, to preserve contingent remainders; and after the decease of Thomas, to all and every the son and sons of the body of Thomas severally and successively one after another in priority of birth, &c.; and for default of such issue, to the trustees, until another nephew should attain 21, and then to him in the same manner. Upon a case sent out of Chancery for the opinion of the Court of K. B., as to what estate Thomas Foster the nephew, and his eldest son took; that Court certified that they respectively took estates for life only. 24. Lord Mulgrave having an only daughter and three brothers, devised his estate in trust for his first and every other son in tail male; "failure of such issue, to my brother Henry, and his first and every other son in tail male;" and so on to his two other brothers in the same words, and then to his daughter in the same manner; and concluded with these words, "in all the foregoing cases without impeachment of waste, other than wilful." Then after making a provision for his daughter to the amount of 20,000l., the will proceeded thus: "My will is, that the money lodged at Childs, to pay for the purchase of the Lyth rectory, be applied to that purchase, as soon as Sir J. Sheffield can complete the title; and the renewals to be made by the tenant for life." It appeared that Sir. J. Sheffield held the rectory of Lyth for three lives, under the see of Canterbury. § 50. Lord Kenyon." The words, first and every other son, children, or heir, may be taken to be words of limitation, where it is necessary to give them that construction in order to effectuate the intention of the testator, as in Robinson v. Hicks, though ordi- Ante, c, 12, narily speaking they are words of purchase: but in this case no doubt can be entertained respecting the devisor's intent. First, he devised to his own first and every other son in tail male, and if he had no issue, then to his brother Henry and his first and every other son in tail male, &c. Now, if he had given instructions to a conveyancer to draw his will, and to make his brothers tenants for life, and their children tenants in tail, these are precisely the terms in which he would have given such instructions: and in construing wills we must take into consideration the short hints of the devisor, in order to discover his intention. To be sure, if the objection, voluit sed non dixit, had occurred, it could not have been got over; we could not have inserted words in a will which would have varied the construction of those used, even if we thought that the devisor had intended to have used them: but here the intention is sufficiently explained by the words which he has used; and great weight is also due to the subsequent words, which direct the renewal of the life estate to be made by the tenant for life; for they can only apply to the devisor's brothers, since there Though charged with a payment. 6 Rep. 16. a. Ansley v. was no other person who could take a life estate under the will. In some of the cases, indeed, nice distinctions have been made, to whom the word heirs should be applied; but without entering into those niceties, because it is unnecessary in this case, where the devisor's intention may be collected from different parts of the will, I am clearly of opinion that, on the fair construction of the will, the present Lord Mulgrave only took a life estate, with remainder in tail to his issue." 25. It has been stated that a devise to a person, without any words of limitation, charged with the payment of a gross sum of money, or of debts or annuities, creates an estate in fee simple. But it is laid down in Collier's case, that a devise to a person to the intent that with the profits he should educate his daughter, or out of the profits of the land pay to one so much, and to another so much, was but an estate for life; for he was sure to have no loss. 26. W. Lock being seised in fee, and having several Cro. Car. 157. sons, and being bound in an obligation that 40%. should be paid annually to his wife during her life, made his will, and thereby devised all his lands, by several clauses, to his several sons; and amongst others, he devised the lands in question to his sons Michael and Henry; and added this clause: " Item, all the houses and lands which I have given between my sons, is to this purpose, that they all shall bear part and part alike, going out of all my houses and lands, towards the payment of my wife's 401. per annum during her life, which I am bound to pay." The Court resolved that an estate for life only passed by this devise, for it was not devised, paying a sum in gross, but that every one should pay out of his part towards the 40l. to his wife; which was quasi an annual rent out of the profits of the land, and no sum in gross; and therefore no fee was given. 27. J. Toby devised all his lands and goods, after his debts and legacies paid, to his children R. and M. Dickens v. Toby, equally to be divided between them. The Court resolved that only an estate for life passed; for although the devise for lands and goods were coupled together, and it was a devise for ever of the goods; yet for the land, there being no words to give the inheritance, only an estate for life passed. And although it was objected that the devise of the lands was, after his debts and legacies paid, yet that did not enlarge it. Marshall, Blackmore, 28. A person gave all his lands, tenements, and Merson v. messuages whatsoever, after debts and legacies paid, and funeral expenses were discharged, to J. M. It was said by Mr. Fortescue. M. R. that where a gross sum was to be paid out of the lands devised, it gave a fee to the devisee of those lands; but here the debts were not at all events charged upon the real estate, but only contingently, if the personal estate should be deficient; and therefore did not come up to the cases cited of a gross sum to be paid out of land and consequently gave no more than an estate for life to the devisee. 29. It has been laid down in two modern cases, that where the payment of a gross sum of money, or of debts and legacies, is charged on the estate devised, and not on the devisee, such a charge will not operate so as to give the devisee an estate in fee; and therefore, if no words of limitation are added, he will take no more than an estate for life. 2 Atk. 341. Mellor, 30. A person devised as follows-" I give and de- Denn v. vise unto N. Lister all that my customary estate, &c. 5 Term R. All the rest of my lands, tenements, and heredita- 558. ments, either freehold or copyhold, whatsoever, and wheresoever; and also all my goods, chattels, and personal estate, of what nature or kind soever, after payment of my just debts and funeral expenses, I give, devise, and bequeath the same unto my wife Sissily Carr;" and appointed her sole executrix. |