In In re

of precisely equal amount, (k) has been altered by the act. Gibson, (7) where a testator, having £1000 N. B. railway stock bequeathed "my one thousand railway shares," and afterwards sold his £1000 stock, and at various times bought stock and shares of the N. B. railway exceeding the amount bequeathed, and was possessed of them at his death; it was contended that although the legacy was specific, and according to the old law *adeemed, yet under section 24 of the act the legatee was entitled to have his legacy satisfied out of the newly-purchased shares: but Sir W. P. Wood, V. C., said the testator had distinctly referred to one thing in his will which was no longer in existence at the time of his death: that thing and that only could be considered as the subject of the bequest. The claim therefore failed. This in principle covers a case where the substituted stock is exactly equal to the original subject of bequest.

of a specific ex

isting debt.

"The

Again in Sidney v. Sidney, (m) where a testator recited, as the fact -nor to release was, that his son owed him £1440 or thereabouts, secured by bills notes or otherwise, (the precise amount was £1400) and released him from the payment of interest up to the time of the testator's death; this debt was afterwards paid off, but another £1290 was incurred, which was partly secured by notes and partly unsecured, and which remained due at the testator's death. question is," said Sir G. Jessel, M. R., "how far the provisions of section 24 apply to gifts of legacies as distinguished from gifts of residue. The first question to be considered in all these cases is what does the instrument mean?" And he held that the will meant to describe a specific sum then existing, and that consequently it could not, under section 24, be read as speaking at the time of the testator's death, so as to include a new subject, viz., the interest on the new debt. The legacy was therefore adeemed.] (n)

(k) Pattison v. Pattison, 1 My. & K. 12. In In re Gibson, presently stated, Wood, V. C., referred to Lord Hardwicke's doctrine in Avelyn v. Ward, 1 Ves. 423, that the substitution of one entire fund (not purchased bit by bit) for another of equal amount was a revival of the bequest. But since 1 Vict., c. 26, a bequest of personalty once adeemed cannot be revived by parol, and the "continuing operation" of a will under 24 extends only to uninterrupted gifts.

(2) L. R., 2 Eq. 669. A bequest of railway "shares" generally includes railway stock, Morrice v. Aylmer, L. R., 7 H. L. 717.

(m) L. R., 17 Eq. 65. A release by will of debts is clearly a gift of personal estate within 24, Everett v. Everett, 7 Ch. D. 428; in this case a release of specified debts " now due and of all other moneys due from" the legatee, was held to include after-incurred debts.

(n) See also Maxwell v. Maxwell, L.

tion 24 makes

death.

Another question is whether the enactment which makes the will speak from the death has the effect of carrying forward Whether secto that period words pointing at present time. For words of pres ent time point instance, supposing a testator to bequeath "all that mes- to testator's suage in which I now reside," and that after making his will he changes his residence to another house belonging to him, which he continues to occupy until his death, does the act make the word "now" apply to the house occupied by the testator at his death? It is conceived that the principle will not be carried such a length, and that this would be considered as a case in which "a contrary intention appears by the will:" [for the reference is to a specific thing *then in existence, and the words " in which I now reside" are the only distinguishing terms of description.

Cole v. Scott.

So where the words describing the subject of gift are far more general, yet if they expressly point to the present time, and are manifestly used with reference to the period when the will is made, (o) the operation of the act is excluded. Thus, in Cole v. Scott, (p) where by will, dated the 29th of April, 1843, the testator, after devising "the house in which I now reside," and also making another devise of the "residue and remainder of my messuages, &c., whereof I am now seized or possessed," also devised and bequeathed "all such manors, &c., as well freehold as copyhold and leasehold, as are now vested in me, or as to the said leasehold premises shall be vested in me at the time of my death as trustee or mortgagee," the question was whether after-purchased property passed under the residuary devise; and it was held by Sir L. Shadwell, V. C., and, on appeal, by Lord Cottenham, C., that the after-purchased property did not pass. Both judges, especially the former, relied on the contrasted use of words importing a distinction between the estates then vested in the testator and those he might thereafter acquire, and concluded that the word "now" must be referred to the date of the will. If the will had been undated, the L. C. thought (for reasons not expressed) that "now" must under the act be referred to the time of the death. But whether the will is dated or not, Cole v. Scott is not an

R., 4 H. L. 506, as to expressions showing an intention to refer only to the state of circumstances existing at the date of the will. A bequest, if specific under the old law, is specific also under the new. The wills act, 24, gives it an enlarged

operation; but the nature of the bequest is not altered. See Bothamley v. Sherson, L. R., 20 Eq. 313.

(0) See Sugd. R. P. S., p. 372.

(p) 16 Sim. 259, 1 M. & Gord. 518. See also Douglas v. Douglas, Kay 400.

authority for giving to the word "now the effect of excluding afteracquired property in every case in which the testator gives that of which he is "now seized" or "now possessed." Thus in Wagstaff v. Wagstaff, (q) a gift of "all my ready money, shares, freehold property, plate, pictures and any other property that I may now possess, except the house at P.," was held by Sir J. Romilly to include all the personal property of the testator at his death. He appears to have thought there was no difference between the words "I possess" and "I now possess." As a matter of grammar, both, it is true, express the present time; but upon the question of indicating a contrary intention within the act, the introduction of the word "now" seems to go much further towards indicating an intention to give only what the testator has at the time. (r) Something more than this single *word, however, will generally be wanted for that purpose: some more pointed distinction must be drawn (at least in the case of a general gift) between what belongs to the testator at one time and what belongs to him at the other. And "now" has never been so construed since the act as to produce intestacy. (t)

Again, in In re Midland Railway Company, (u) where a testator gave "all that my messuage situate in Bordgate in Otley, wherein my son D. now resides, with the stables and appurtenances thereto belonging and therewith occupied," and afterwards bought a piece of land adjoining the house, which he attached to it as a garden; it was held by Sir J. Romilly that the garden passed with the house. In his opinion it was as if the testator had said, "I give my farm Whiteacre, now in the occupation of J. S.:" but he added that if the devise had been of "the messuage as it now stands, and the lands now neld therewith by D.," it would not have included the after-acquired garden. In the case first put by the M. R., the reference to occupation is not an essential part of the description: (x) in the second it is; the subject of gift cannot be identified without it, and the word "now" would confine the gift to land so occupied at the date of the will. (y)

(q) L. R., 8 Eq. 229.

house will generally carry the garden,

(r) See per Turner, L. J., 8 D., M. & see post ch. XXIV. G. 437.

(t) See especially Hepburn v. Skirving, 4 Jur. (N. S.) 651, a strong decision, especially as to the bank shares.

(u) 34 Beav. 525. That a devise of a

(x) See Chamberlain v. Turner, Cro. Car. 129.

(y) Hutchinson v. Barrow, 6 H. & N. 583; Williams v. Owen, 2 N. R. 585.

But it is clear that words which merely import but do not emphatically refer to time present, as a general devise or bequest Verbs in of property, or of property of a particular genus, of which present tense. "I am seized" or "am possessed," will generally include all or all of that genus to which the testator is entitled at the time of his death, though acquired after the date of the will. (z) And the effect of the statute ought not to be frittered away by catching at doubtful expressions for the purpose of taking a case out of its operation. (a) Thus in Lilford v. Keck, (b) where a testator devised all the freeholds "of which I am seized," and then devised to corresponding uses all the copyhold and leasehold property "of which I am or at the time of my death shall be possessed;" it was held by Sir J. Romilly that afterpurchased freeholds passed by the former devise. So in In re Ord, (c) where a testator, possessed of leaseholds at C., part of which was charged with a mortgage and the rest with an annuity, devised all his leasehold lands at C., charged with the mortgage debts charged thereon, "and also with the annuity now charged thereon," to his son; and afterwards bought other leasehold lands at C.; it was argued that the devise was confined to such leaseholds as were charged with the mortgage and annuity, a construction which of course excluded the after-bought lands; but Sir C. Hall, V. C., held that the reference to the charges (which was not quite accurate) was insufficient to deprive the words of gift of their proper interpretation under the act.]

gestion.

In order to avoid all such questions, a testator should add to his description of property specifically disposed of expressions Practical sugincapable of being applied or not likely to apply to any other. He should give "the house No. 23 in Grosvenor Square," or "his farm in the parish of A called B, now in the occupation of C" (all which particulars could hardly coincide in two instances), or "all lands in the county of C to which he is entitled at the date of his will." The last restriction seems in general the best, as it precludes the possibility of after-acquired property being let in.

[It has hitherto been assumed, and the assumption pervades all the cases, that the words of the act "every will shall be construed, with reference to the real and personal estate comprised therein, to speak and take effect as if," &c., are

(z) Doe d. York v. Walker, 12 M. & Wel. 591; Lady Langdale v. Briggs, 3 Sm. & Gif. 246, 8 D., M. & G. 391.

Is section 24 property exdevise?

applicable to

cepted from

(a) Per Cotton, L. J., Everett v. Ever

ett, 7 Ch. D. 428.

(b) 30 Beav. 300.

(c) 9 Ch. D. 667.

not to be taken in their literal sense as meaning "real and personal estate then actually comprised therein" (i. e., devised thereby). It is plain that this sense was not intended, for the context shows that the enactment has reference to property not then actually comprised in the will. (d) The true meaning appears to be "with reference to the question what estates are comprised in any disposition in the will.” If this is so, it disposes of a point raised and left unsettled in Hughes v. Jones, (e) namely, whether the enactment is applicable to exceptions from a devise? To hold that it is, *would (it was argued) be to make the will speak from the death with reference to property excluded from it, whereas the act makes it so speak only with reference to property comprised in it. This argument proceeds upon a mistake. The whole question is, what is comprised in the terms? This cannot be answered without taking into consideration and construing all the terms of the description, as well those which exclude as those which include. And if a man devises all his real estate except his copyholds or except his estates in the county of B, or bequeaths all his stock except consols, good sense requires that both parts of the description,. being equally general or generic, should be construed to speak as from the same time. If the exception, or exclusive portion, refers to an actually existing state of things, it must, of course, be construed to speak as from the date of the will, just as inclusive terms having a similar bearing must be construed. If the will goes on to make a distinct disposition of the excepted property, with the result that what is excluded from one devise is included in the other, the question (if question it is) can hardly be said to arise. (ƒ)

d) See per Turner, L. J., 8 D., M. & G. 436 (where the word "is" is misplaced, see 26 L. J., Ch. 49). The words of the act appear to have been hastily adopted from the "propositions" of the 4th R. P. Report, p. 80. They require to be read with the report, which says (p. 24) "We propose that a will shall pass property of any description comprised in its terms which a testator may be entitled to at the time of his death, unless a contrary intention shall appear by the will. If this recommendation be adopted the law respecting the time from which a devise of

freehold or copyhold estate is to be considered to take effect will be precisely similar to that which is at present in force as to personal estate." And this recommendation is referred to as follows (p. 29):-"If as we have proposed wills be made to speak with reference to the property comprised in them as at the time of the testator's death," &c.

(e) 1 H. & M. 765.

(f) See Lysaght v. Edwards, 2 Ch. D. 521, 522; In re Scarth, 10 Ch. D. 499, better reported 40 L. T. Rep. 184.