Hickman v. Haslewood (a); Doe d. Gillard v. Gillard (b); Barker v. Greenwood (c). In all these cases the trustees took the legal estate: Doe d. Guest v. Bennett (d). But secondly, we contend that under the words of that residuary devise, Anne Dawson devised the reversion to the trustees: Braybroke v. Inskipp (e). Do the words "residuary legatee" pass real estate? Hope d. Brown v. Taylor (f). The word "legacies" extends to lands as well as to moneys: Hardacre v. Nash (g); and real property may pass under the description of personal estate : Doe d. Tofield v. Tofield (h); Saumarez v. Saumarez (i).—[LEFROY, C. J. The words legacy or legatee will carry the estate, if that be the intention of the the testator, so that the question depends on the will itself.]—In Evans v. Crosbie (k), the Vice Chancellor says:-"It seems to me that the cases of Day v. Daveron, and Davenport v. Coltman, have a value with regard to this case in "this respect, that they are authorities as to the use of the word "legatee,' as applicable, in the minds of the parties who used it, "to a disposition of real estate." The word in the will, "trus tees," clothes them with the legal estate. Macdonogh and Meagher, contra. The legal power cannot continue, once the legal estate to which it is incident is determined, for when an estate is gone at law, all powers over it are also gone. The estate which Anne Dawson took under her husband's will expired in December 1834: Bell v. Nangle (1); Jack d. M'Guirk v. Reilly (m); and no renewal was obtained by her from Crampton until June 1835. There is here no identity of the two estates; and the power conferred by the will of Thomas Dawson was referrible to a totally different estate from that of Anne Dawson; for it was to the estate that passed by his (a) 6 Ad. & El. 167. (e) 8 Ves. jun. 416. (g) 5 T. R. 716. (b) 5 B. & Ald. 785. (d) 20 L. J., N. S., Exch. 323. (ƒ) 1 Bur. 269. (h) 11 East, 246. (k) 15 Sim. 602. M. T. 1852. CHURCH v. DALTON. CHURCH V. DALTON. . M. T. 1852. will, and which was determined when she executed the power.— Queen's Bench [MOORE, J. May the devise not mean that Anne Dawson devised to her trustees all that she took under the will of Thomas Dawson as a trustee?-LEFROY, C. J. If a person having a power and interest does an act importing to be in pursuance of that power and interest, will not the matter be referred to either the power or interest to effect the object?]-But we say Anne Dawson took an estate as tenant from year to year, and the tendency of Courts is to presume in favour of yearly tenancies.-[LEFROY, C. J. Suppose she were a yearly tenant, would not the new lease operate by enlargement?]-In Wigram on Extrinsic Evidence, pp. 15 and 17, the rules are laid down that "A testator is presumed to use the "words in which he expresses himself, according to their strict and "primary acceptation, unless from the context of the will it appears "that he has used them in a different sense, in which case the 66 sense in which he thus appears to have used them will be the sense in which they are to be construed." Again :-" Where there "is nothing in the context of a will from which it is apparent that 66 a testator has used the words in which he has expressed himself "in any other than their strict and primary sense, and where his "words, so interpreted, are sensible, with reference to extrinsic cir"cumstances, it is an inflexible rule of construction, that the words "of the will shall be interpreted in their strict and primary sense, "and in no other, although they may be capable of some popular or "secondary interpretation, and although the most conclusive evi"dence of intention to use them in such popular or secondary sense "be tendered." Anne Dawson's will must intimate her intention, and nothing outside the will can be brought in aid; she represents it as personal estate she was possessed of, by the recital in her will, and the Court must construe that clause of her will as a residuary devise; and as far as that goes, it is impossible to say an estate passed, sufficient to maintain this action. The declaration sets out that Anne Dawson was tenant at will of the demised premises to Philip Crampton, who was seised in fee; and that being so possessed, and the reversion thereon expectant so belonging, she, on the 21st of CHURCH v. DALTON. February 1834, bargained and sold the premises, and afterwards, M. T. 1852. Queen's Bench to wit, on the 22nd of February 1834, released them to Robert Dalton-Habendum for three lives; then that Philip Crampton, on the 23rd day of June 1835, bargained and sold, and on the 24th of June, released the same to Anne Dawson, her heirs and assigns, for an estate of freehold, for the lives of certain persons in being (one of whom was different from the lives in the preceding lease), virtute cujus Anne Dawson became and was seised of the estate of freehold of and in the reversion expectant on the term previously granted; and being so seised, she devised the reversion to the plaintiffs, &c. She was tenant from year to year when she made this lease to Dalton; for it appears on the special verdict that, on the 31st of December 1833, her title from Crampton ended and determined, and then, on the 22nd of February 1834, before any payment of rent, she made the lease the subject of this action. In 1835, she obtained the renewal, and before that, all the rent that accrued due in the interval between December 1833 and that period had been paid, and thus was established a tenancy from year to year, during the entire period that the rent was paid. [MOORE, J. All that may be evidence, but by no means conclusive.]-It would be evidence that an agreement was entered into. [MOORE, J. We are arguing on a special verdict, and can infer nothing. Suppose, after payment of that rent in 1835, Anne Dawson had served a notice to quit, and said she had a right to do so, could she then say she was tenant from year to year by relation back?]-2 Smith, L. C. p. 74. Ball, in reply, was not called on. LEFROY, C. J. In this case it is unnecessary to occupy time with our judgment; the sole inquiry is, what estate Anne Dawson had at the time she made the lease in question? not what estate she subsequently acquired. It is plain she was tenant at will when the lease was executed. Then as to the operation of the bequests, it would defeat the primary intention of Anne Dawson's will if we did not hold that CHURCH v. M. T. 1852. it passed an estate to the trustees, for there is on it a plain purpose Queen's Bench of appointing trustees to carry out the trusts of her husband's will; and the execution of those trusts required a legal estate to be in the trustees. She has used language amply sufficient to carry out those several trusts specified in that will. The special verdict must be found for the plaintiffs. DALTON. Judgment for the plaintiffs. Nov. 12, 15. RUSH, in replevin, v. THE GUARDIANS OF THE POOR OF THE ROSCOMMON UNION and THOMAS CONRY. Two Poor-law THIS was a special case, stated for the opinion of this Court, by rates were made on cer tain premises on the 21st of December consent. The action was one of replevin, brought by the plaintiff against 1847, and 21st the Guardians of the Roscommon Union, for taking his goods and chattels as a distress for poor-rate. The defendants avowed, and rated premises made cognizance for this distress-to which avowry and cognizance of December 1848; the were under £4 per annum value, and one M. was rated the plaintiff pleaded three pleas, and on these pleadings the following case was submitted :— as immediate lessor, but no The defendant Thomas Conry was the collector of poor-rates for person was named as oc- the Guardians of the Roscommon Union; and the rates, in respect of cupier in the rate book. which the distress was levied, were made respectively on the 21st When the of December 1847, and the 21st of June 1848. The premises rated rates were made, A. held the premises under a lease from M., made before 6 & 7 Vic., c. 92, he being then the immediate lessor; but before the levy of the rate A. had ceased to occupy the premises, and the plaintiff in 1850 became the occupier as yearly tenant to M. The rates not being paid by M. within four months after the making of them, the plaintiff was required to pay them as occupier, and he having refused, the premises were distrained. Held, such distress was legal, because the person liable to the rate cannot set up an error in the rate book as a defence to a distress for the rate, the rate being a valid rate. Semble. The proper course would have been an appeal against the rate. RUSH V. ROSCOMMON UNION. averaged from £2 to £4, and one Marcus M'Causland was rated as M. T. 1852. the immediate lessor, and no person was named as occupier in the Queen's Bench rate book. At the time the rates were made, one Mary M'Govern held the premises under a lease made before the passing of 6 & 7 Vic., c. 92 (1843)-Marcus M'Causland being then her immediate lessor, and Mary M'Govern had ceased to occupy, before the levy of the rate. The plaintiff, on the 27th of March 1850, became the occupier of the premises, as tenant from year to year to Marcus M'Causland; and on the 4th of June 1851, notices were served on the plaintiff by the defendants, calling on him, as occupier, to pay the rates within one month from the date of the notices-same not having been paid within four months after the making of such rates on the immediate lessor. The rates not having been paid, the Guardians issued their warrant to Thomas Conry, authorising him to collect them, and under that warrant he distrained on the lands so formerly occupied by Mary M'Govern, on the 28th of July 1851. The question submitted to the Court was, whether or not the said distress was maintainable ? If the Court should be of opinion in the affirmative, by consent, a judgment of nolle prosequi was to be entered against the plaintiff;, and if the Court should be of a contrary opinion, defendants agreed that judgment should be entered against them by confession. Meagher (with him Thomas O'Hagan), for the defendants. This rate was not void, and the case is not governed by Lord Lucan's case (a). The rate was imposed on the immediate lessor by name, and the lease under which the premises were held was made previous to the passing of the late Act, which made immediate lessors liable for the rate. In any action brought against M'Causland, seeking to make him liable to the rate as immediate lessor, it would be open to him to show he was not the immediate lessor; but an error in misnaming a person as immediate lessor does not render the whole rate void, so as to make a distress illegal. The 1 & 2 Vic., c. 56, s. 61, provides that the Guardians shall make and levy such rates as "may be necessary, on every occupier of rateable heredi (a) 13 Ir. Law Rep. 44. |