1842.

man, and also the four children named in his said will, Exch. of Pleas, that is to say, Thomas Coltman, who was his eldest son and heir-at-law, George Coltman, Mary Newbold, and DAVENPORT Charlotte Coltman, (who has since become the wife of John Davenport the younger), his only next of kin him surviving.

The questions for the opinion of the Court were, first, what estate (if any) did Mary Coltman, the wife of the testator, take in the tenements in the counties of Lincoln and Hertford under the will? Secondly, what estate (if any) did Mary Newbold and Charlotte Davenport, the daughters of the testator, or either and which of them, take in the said tenements in the counties of Lincoln and Hertford, under the will? And, thirdly, what estate (if any) did Mary Newbold and Charlotte Davenport, or either and which of them, take in the said house and tenement in Stanley-place, Chester, under the same will?

The case was argued in Michaelmas Term (Nov. 15), by

Erle, for the residuary legatees.-The two daughters, by the residuary clause, took remainders in fee in the house in Stanley-place, Chester, and also estates in fee in the property in Lincolnshire and Hertfordshire, expectant on the death of the testator's widow. It will be said that the words "residuary legatees" apply to chattel interests only, and it is admitted that they generally do so, and that the word "possessed" has been held to apply rather to chattel interests only. But in this case the context shews that the words are intended to be applied to lands also. The testator clearly shews that he was not acquainted with legal and technical language. Having given legacies to his two sons, and annuities to his daughters, and having created a freehold estate to his wife for life in the house in Stanleyplace, he makes his daughters residuary legatees of whatever he may die possessed of, except what is already men

v.

COLTMAN.

Exch. of Pleas, tioned in favour of others. The intention was not to pre1842.

DAVENPORT

v.

COLTMAN.

vent any property, except what had been previously excluded, from passing under the residuary clause. The exception to prevent property before devised from falling into the residue plainly shews an ignorance of technical language. The last clause in the will-" as for my houses in Liverpool," (which were leasehold), "the executors may dispose of any one or the whole of them, whenever the same may be thought advisable for the benefit of the parties concerned, but the house in Chester must not be sold so long as my wife lives," plainly indicates that the testator was not acquainted with the distinction between chattel interests and freehold estates, for there is an express exclusion of the house in Chester from the powers of the executors. In Wilce v. Wilce (a), the testator commenced his will as follows:-"As touching such worldly property wherewith it hath pleased God to bless me, I give, devise, and dispose of the same in manner following:" and after various bequests and devises concluded :—" all the rest of my worldly goods, bonds, notes, book-debts, and ready money, and every thing else I die possessed of, I give to my son George;" and it was held that George took a fee in lands of the testator not specifically devised by the will. Tindal, C. J., there says, after commenting on the will," by everything else must be understood everything else not before disposed of." In Pitman v. Stevens (b) the devise was "I give and bequeath all that I shall die possessed of, real and personal, of what nature and kind soever," without saying to whom, but adding, "I appoint P. my residuary legatee and executor," which was followed by a bequest of certain annuities and legacies, &c.; and it was held to shew the testator's intention to make P. the residuary legatee of his real estate in fee. So in Noel v. Hoy (c), the nomination of the testator's

(a) 7 Bing. 664; 5 M. & P. 682. (b) 15 East, 505.

(c) 5 Madd. 38.

1842.

v.

COLTMAN.

wife as executrix, and a bequest of "all the property of Exch. of Pleas, whatever description or sort that I may die possessed of," was held sufficient to pass a copyhold estate; and Sir John DAVENPORT Leach, V. C., said, "A testator is not to be confined to the technical sense of the words which he uses." In Hopewell v. Ackland (a), a devise with the words "whatsoever else I have in the world," was held to pass an estate in fee. In Huxtep v. Brooman (b), a devise of "all I am worth" was held sufficient to pass a real estate. In Brady v. Cubitt (c), Hope v. Taylor (d), Hardacre v. Nash (e), and Pitman v. Stevens, the words "legacy" and "legatee," it was decided, might be applied to lands, if the context of the will shewed it to be the testator's intention so to use them. Devises appointing persons "executors of his houses" have been held to pass lands in fee: Doe d. Hickman v. Haslewood (f); Doe d. Pratt v. Pratt (g). So the words "executors of all my lands for ever:" Doe d. Gillard v. Gillard (h). So, a power to a devisee of lands and goods, to "give what she thought proper of her said effects," it was held, enabled the devisee to devise the real estate: Doe d. Chillcott v. White (i). So in Doe d. Andrew v. Lainchbury (k), the words " property and effects" were also held to pass real estate. Camfield v. Gilbert (1) may be relied upon by the other side, but the principle is in favour of the residuary legatees. There one, seised in fee of real estate, by her will first made a disposition of her real estates to two persons for life, reserving a rentcharge out of the same, payable first to her uncle for life, and then to her heir at law for life; which, "together with the repairs during the term, should be considered as his

(a) 1 Com. Rep. 164.

(b) 1 Bro. Cha. Ca. 437.

(c) 1 Doug. 31, 40.

(d) 1 Burr. 268.

(e) 5 T. R. 716.

(ƒ) 6 Ad. & Ell. 167; 1 Nev. & P. 352.

(g) 6 Ad. & Ell. 180; 1 Nev. & P. 366.

(h) 5 B. & Ald. 785.

(i) 1 East, 33.

(k) 11 East, 290.

(1) 3 East, 516.

486

Exch. of Pleas, rent for the said farm;" and afterwards she proceeded to

1842.

DAVENPORT

v.

COLTMAN.

make a disposition of her personal property, and then be-
queathed and devised "all the rest, residue, and remain-
der of her effects, wheresoever and whatsoever, and of what
nature, kind, or quality soever, (except her wearing ap-
parel and plate), to certain nephews and nieces, to be
equally divided between them by her executors ;" and it
was held, that the reversion in fee in the real estate did
not pass by the residuary clause, but descended to the
heir at law. But there the exception in the residuary
clause clearly shewed that the word "effects"
was in-
tended to apply to personalty. Here the exception in the
residuary clause is of freehold interests, which shews that
it was intended to apply to the other freehold interests.
In Doe d. Tofield v. Tofield (a), it was held that real pro-
perty might pass under the description of "personal
estates" in a will, where it was manifest from the whole
of the instrument that such was the devisor's intention.
Here the testator has used words large enough to include
real as well as personal estate, and must therefore be taken
to have intended to include the former; and if the words
are large enough to include the house in Stanley-place,
they will also include the lands in the counties of Lincoln
and Hertford.

Mylne, for the widow.-The words used in the will are large enough to comprehend whatever the testator might die possessed of, both real and personal, and the effect of it was to give the widow an estate for life by implication in the Lincolnshire and Hertfordshire property. In Saumarez v. Saumarez (b), Lord Cottenham, C., says, "In considering gifts of residue, whether of real or personal estate, it is not necessary to ascertain whether the testator had any particular property in contemplation at the moment.

(a) 11 East, 246.

(b) 4 Mylne & Cr. 339.

1842.

DAVENPORT

v.

COLTMAN.

Indeed, such gifts may be introduced to guard against the Exch. of Pleas, testator having overlooked some property or interest in the gifts particularly described. If he meant to give the residue of his property, be it what it may, it is immaterial whether he did or did not know what would be included in it; and if so, it cannot make any difference that such ignorance is manifested upon the face of the will, unless the expressions manifesting it are sufficient to prove that the testator did not intend to use the words of gift in their ordinary, extended, and technical sense." The words of this will are large enough to pass both the real and personal estate; and if so, they are large enough to pass an estate for life to the widow. Two of the persons mentioned in the residuary clause are persons who are next of kin to the testator. In Roe d. Bendale v. Summerset (a), where a testator, being possessed of a term for ninety-nine years, if he or his daughter Betty, or John Bendale, should so long live, devised the premises as follows: "Item, I give to my daughter Mary, after the decease of my daughter Betty, my house, &c., during the life of John Bendale;" it was held that Betty took an estate for life by implication. Blackwell v. Bull (b), where a testator directed his business to be carried on by his wife and son for the mutual benefit of the family, and devised his property in trust that at his wife's decease the whole of it, as well freehold as personal, should be equally divided among his children; it was held that the testator, in the words "my family," intended to comprise his wife; and as to the testator's property devised after his wife's decease to his children, it was held upon the whole will, and what appeared to be the evident intention of the testator, that the wife took a life interest by implication, as well in the real as in the personal estate.

(a) 5 Burr. 2608.

(b) 1 Keen, 176.

In