243 * 244 and devised all his money, securities for money, goods, chattels and effects, and all other his personal estate, not before disposed of, to his brother and sister. Upon a case sent by the Court of Chancery to the Court of C. B. the question was, whether the leasehold passed under the first general devise. *Lord Eldon stated the reasons for the certificate; and after observing that Lord Kenyon had said in the preceding case, that it was the duty of courts of justice to give effect to the devisor's intention, as far as they could consistently with the rules of law, not conjecturing but expounding his will from the words used; and that he was particularly impressed with the latter expression, "not conjecturing, but expounding his will from the words used;" he said, that, whether the rule laid down in Rose v. Bartlet were wisely adopted or not, it was unnecessary to determine; but that case having once established a general rule, he had rather consent pointedly and avowedly to contradict that rule in terms, than to acknowledge it in words and deny it in effect, by raising distinctions which in fact made it impossible for any man to decide in any particular case, what was the legal construction of a will, as to this point, till he had obtained the authority of a court of law, in a judgment upon the will, for the opinion which he gave. That it did not appear that there was any equitable right of renewal, nor even the premises in question blended, in enjoyment or otherwise, with any freehold land; there was no difficulty in distinguishing them from each other, they had never been demised together, at one rent, reserved to heirs; they were short terms. No one of those particular circumstances which were relied upon in former cases existed in this. It was the simple case of terms for years, and a case of property, prima facie that sort of property which a disposition of personal estate must be intended to pass. That the estates included in the general devise were limited to the issue of the devisor in tail, with several remainders over. He entered into an examination of all the preceding cases, and concluded by saying, "The rule in Rose *v. Bartlet is a rule which has been acknowledged for ages, and upon which I shall act, until I am informed by the highest authority that I am no longer to regard it : till I shall be so informed I shall substantially regard it in judgment; for I think it better to over-rule it altogether, which I must not do, than to deny to it its effect, upon grounds which do not completely satisfy my mind, as solid and safe grounds of distinction." All the other Judges said the rule in Rose v. Bartlet ought not to be shaken; and the Court certified that the leasehold houses did not pass by the general devise. necessary 105. With respect to the words necessary to pass estates in What words reversion, wherever a testator shows an intention to dispose of to pass Reall his property by his will, and uses words sufficient for that versions. purpose, any estates to which he is entitled in reversion will pass.(1) "And the Aleyn, 28. 3 P. Wms 106. A person having a manor and other lands in Somer- Wheeler v. setshire, devised the manor to A. for six years, and part of the Waldron, other lands to B. in fee, and then came this clause : rest of my lands, in Somersetshire or elsewhere, I give to my brother." It was adjudged that the reversion of the manor passed by the word rest. 107. A person settled part of his lands on his daughter for life, and devised another part to his wife for a year after his 1 death; and then devised all his lands, not settled or devised, to T. K. and his heirs. Adjudged, that the reversion of the lands settled on his daughter, passed by this devise. 63. n. E. Cooke v. Lev. 212. Saund. 180. Gerrard, Rook v. 108. A person being seised in fee, devised Blackacre to A. for life, and devised to B. all his lands not before devised, to be Rook, 2 sold, and the money to be divided between his younger children. Vern. 461. The question was, *whether the reversion of Blackacre passed by the devise of all his lands not before devised; and it being referred to the Judges of C. B., they certified that the reversion was well devised. * 245 109. A person devised a house to A. and his wife for their Willows v. lives; and then, the better to enable his wife to pay his legacies, 2 Vent. 285. Lidcot, he devised to her all his messuages, lands, tenements, and here- 3 Mod. 229. ditaments whatsoever, within the kingdom of England, not before disposed of, to hold to her and her heirs. It was also found that the testator left sufficient to pay his legacies, without the reversion of the house. The Court of King's Bench determined that the reversion of the house did not pass; but this judgment was unanimously reversed in the Exchequer Chamber. (1) "It is true a testator might devise lands for years, or for life, and limit no particular remainder, and in that case, the reversion would pass in the residuary clause. Skin. 631. Aleyn, 28. 2 Ventr. 285. 2 Vern. 461. 621. Eq. Ca. Abr. 211. 3 Atk. 486. In these cases the testator, having given a limited estate, shows his intention, that on the termination of that estate, the land should return into the mass of his property, and making no further disposition of it, means, it shall pass in the residue. But in a general devise of lands without limitation, I will not say there is no case, but I have not met with one, which determines that the reversion will pass by a general residuary devise in the same will.” Per Pendleton, Pres't. in McKennon v. Roberts, 1 Wash. Rep. 112. Dalby v. Fletcher v. Smiton, infra, c. 11. Falkland v. 3 Bro Parl. 110. A person who was tenant for life, remainder to his first and other sons in tail, with the reversion in fee in himself, having a son and daughter, devised all his lands, tenements, and hereditaments to his daughter in fee, in case his son should die without issue. The son did die without issue; and Lord Holt said, though the testator had only a dry reversion in fee, yet that by the words, all his lands, tenements, and hereditaments, such reversion would pass. 111. The words, all my lands out of settlement, and also the words, not by me formerly settled, will comprehend reversions in fee after estates tail. Sir W. Lytton being tenant in tail after possibility, of some lands, remainder in fee to trustees, in trust for himself and his heirs; and being also tenant in tail of some other lands, reS. C. 2 Vern. mainder to the right heirs of his father, and having no issue, devised all his messuages, lands, tenements, and hereditaments whatsoever, out of settlement, to his nephew *Lytton Strode, and his heirs. The question was, whether the different reversions, to which he was entitled, should pass by this will. 621. 246 Chester v. Chester, 3 P. Wms.56. * 247 Lord Cowper, assisted by the Master of the Rolls, Lord Ch. J. Trevor, and J. Tracy, decreed that the reversions passed by the will. And on an appeal to the House of Lords, this decree was affirmed, upon the principle, that by the words, lands out of settlement, the reversion in fee passed; for the same lands may be said to be settled and unsettled, namely, settled as far as the use thereof is limited, and unsettled as to the reversion. 112. Sir J. Chester, on the marriage of his eldest son, settled lands of 8001. per annum on his eldest son for life, remainder, as to part, to the wife of his son for life, remainder to the first and other sons of that marriage in tail male, remainder to his sen and his heirs male on any other wife, remainder to himself in fee. And being seised in fee of other lands in possession, in Littleton, Marston and Milbroke; he devised all his lands, tenements, and hereditaments in these three places, or elsewhere, not by him formerly settled, or thereby by him otherwise disposed of, to trustees for a term of 100 years, upon the trusts therein mentioned, remainder to his younger son in fee. The eldest son died leaving six daughters; and the question was, whether the reversion of the estate, settled on the eldest son, should pass by this devise. It was decreed by Lord King, assisted by Lord Raymond and another Judge, 1st. That the word elsewhere was the same as if the testator had said he devised all his lands in the three places particularly mentioned, or in any other place whatever; and that there was no reason to reject so plain, proper, *and intelligible a word in a will as this, which probably was inserted to avoid the prolixity of naming the several other places in which the premises lay; it being a great estate, and difficult, at the time of making the will, when the testator might be supposed to be inops consilii, and without his writings, to particularize all the towns. That the word elsewhere was therefore the most significant, sensible, and comprehensive word that could be used for that purpose, equivalent to the naming of them. And it would be of the most dangerous consequence, under pretence of construing this will, and assisting the testator's intentions, to reject a word so material to be made use of, both for the sake of brevity and security. 2dly. That the words, not otherwise by me settled, could have excepted only that estate in the lands which was otherwise before settled; whereas it was plain that the reversion in fee was not settled, and therefore ought to pass by the will. The reversion in fee of the lands in question not being settled, the lands, as to such reversion, were not settled; so that the same lands in several respects, might be said to be settled and unsettled; viz. with regard to all the particular estates which were limited, the lands might be said to be settled; though Glover v. with regard to the reversion in fee, it might be properly said, Spendlove, that the lands were not settled; and the reversion in fee which 337. S. P. remained unsettled, was part of the old estate, whereof the owner continued seised. 4 Bro. R. Cowp. 363. * 248 113. Mr. Tracy being seised of estates in the counties of Freeman v. Gloucester and Worcester, and also entitled to the reversion Chandos, of certain estates in the counties of Oxford and Wilts, devised all and every his manors, messuages, lands, tenements, hereditaments, and premises in the counties of Gloucester *and Worcester, and elsewhere in the kingdom of England, to trustees, subject to certain charges thereon, and to certain limitations and estates to all his brothers, by his marriage settlement. The estates in the counties of Gloucester and Worcester were the only ones charged or mentioned in his marriage settlement. The question was, whether the reversion in fee of the estates in Oxfordshire passed by the will. It was contended, that from the words of the will referring to the limitations of the estates in Gloucestershire and Worcestershire, and the charges thereon, it was manifest the testator had no other estates than those in contemplation at the time of making his will. But the court of King's Bench certified, that the reversion in fee of the estates in Oxfordshire and Wiltshire passed by this devise. Atkyns v. #249 3 Bro. Parl. Ca. 408. Doe v. S. P. Goodright v. 114. E. Atkyns, being seised in fee in possession of the manor of Cotes, and to an estate there called Pinbury Park; and being likewise entitled to the reversion in fee of the manor of Sewell, in the said county of Gloucester, expectant on the estates tail of three persons then living, made his will, and there by devised as follows :-" I give, devise, and bequeath all that the manor or lordship, or reputed manor or lordship of Cotes, in the County of Gloucester, with the rights, royalties, and appurtenances, and also all and every the messuages, farms, lands, tenements, advowsons, and hereditaments whatsoever of me, the said E. Atkyns, situate, lying, and being within or adjoining to the said manor or lordship, and also all that my capital messuage or tenement, and all and every my lands, tenements, and hereditaments whatsoever, whether freehold or leasehold, situate and being at or in or near Pinbury Park, or elsewhere in *the said County of Gloucester, with their appurtenances; and all my estate, term of years, and interest therein, unto and to the use of my executors, &c." Upon trust to sell the same for the benefit of his younger children. Several years after the death of the testator, the reversion of the manor of Sewell came into possession; and a question arose between the heir at law and the younger children, whether it passed by the will. A case was made by Lord Thurlow for the opinion of the Court of King's Bench, who certified that it did pass to the executors by the express words of the will. The Chancellor ordered, that the Judge's certificate should be confirmed. From this order an appeal was brought to the House of Lords: and a question having been put to the Judges, whether the reversion of the manor of Sewell passed by the will, the Lord Chief Baron delivered their unanimous opinion, that the reversion in fee of the manor of Sewell passed by the will; whereupon the decree was affirmed. 115. It has been held in two modern cases, that where there 2 Bos. 600. are general words in the residuary clause of a will, they will Doe v. carry every estate and interest which is not expressly, or by Weatherby, 11 East, 322, necessary implication, excluded from its operation; and will therefore carry all reversions. Teat v. 116. As the intention of the testator is the rule by which wills are always construed, where it is manifest that a testator does not intend to devise a reversion by general words, such reversion will not pass. 117. A. Mervin, on the marriage of his eldest son Henry, Strong, settled the manor of Arlestown on himself for life, remainder to his son Henry for life, remainder to the first and other 2 Burr. 912. * 250 |