rendered

sequently to the execution of a will of or relating to any real not to be or personal estate therein comprised, except an act by which inoperative such will shall be revoked as aforesaid, shall prevent the ope- by any subration of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dis- or act. pose of by will at the time of his death.

By sec. 24, "every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.”

sequent conveyance

A will shall strued to

be con

speak from

the death

of the tes

tator.

devise shall include

estates comprised in lapsed

Sec. 25 enacts, "that, unless a contrary intention shall ap- A residuary pear by the will, such real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will.

and void devises.

A general the tes

devise of

lands shall

include copyhold

and lease

By sec. 26, "a devise of the land of the testator, or of the land of the testator in any place or in the occupation of any person mentioned in his will, or otherwise described in a ge- tator's neral manner, and any other general devise which would describe a customary, copyhold, or leasehold estate, if the testator had no freehold estate which could be described by it, shall be construed to include the customary, copyhold, and leasehold estates of the testator, or his customary, copyhold, and leasehold estates, or any of them, to which such description shall extend, as the case may be, as well as freehold estates, unless a contrary intention shall appear by the will.

hold as well as freehold lands.

A general gift shall include estates over

which the

testator has

a general

By sec. 27, "a general devise of the real estate of the testator, or of the real estate of the testator in any place or in the occupation of any person mentioned in his will, or other wise described in a general manner, shall be construed to include any real estate, or any real estate to which such description shall extend, (as the case may be,) which he may have appointpower to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will; and in like manner a be

power of

ment.

A devise without

any words of limit

ation shall

be construed to pass the fee.

The words

out issue,"

or" die without

leaving issue,"

shall be construed to mean,

die without

at the death.

quest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend, (as the case may be,) which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will.”

By sec. 28, "where any real estate shall be devised to any person without any words of limitation, such devise shall be construed to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will."

Sec. 29 enacts, "that in any devise or bequest of real or "die with personal estate, the words die without issue,' or 'die without leaving issue,' or 'have no issue,' or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of issue living such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift, being, without any implication arising from such words, a limitation of an estate tail to such person or issue, or otherwise: Provided, that this act shall not extend to cases where such words as aforesaid import if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue.

No devise

to trustees or execu

By sec. 30, where any real estate (other than or not being a presentation to a church) shall be devised to any trustee or tors, except executor, such devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had

for a term or a presentation

to a church,

shall pass a

chattel interest.

Trustees

power to dispose of by will in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by impli cation."

By sec. 31, "where any real estate shall be devised to a

unlimited

trust may

yond the

trustee, without any express limitation of the estate to be taken under an by such trustee, and the beneficial interest in such real estate, devise, or in the surplus rents and profits thereof, shall not be given where the to any person for life, or such beneficial interest shall be given endure beto any person for life, but the purposes of the trust may con- life of a tinue beyond the life of such person, such devise shall be con- person beneficially strued to vest in such trustee the fee simple, or other the whole entitled for legal estate which the testator had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied."

life, to take

the fee.

estates tail

By sec. 32, "where any person to whom any real estate Devises of shall be devised for an estate tail, or an estate in quasi entail, shall not shall die in the lifetime of the testator leaving issue who would lapse. be inheritable under such entail, and any such issue shall be living at the time of the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.”

By sec. 33, "where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.”

By sec. 34,"this act shall not extend to any will made before the 1st day of January, 1838, and that every will reexecuted or republished, or revived by any codicil, shall for the purposes of this act be deemed to have been made at the time at which the same shall be so re-executed, republished, or revived; and that this act shall not extend to any estate pur autre vie of any person who shall die before the 1st day of January, 1838."

By sec. 35, "this act shall not extend to Scotland."

Gifts to children or who leave

other issue

issue living at the tes

tator's

death shall

not lapse.

Act not to wills made before

extend to

1838, nor to estates

pur autre vie of persons who

die before 1838.

VOL. II.

SH

APPENDIX.

Bill of Exceptions.

SEPARATE from the record, as to the effect of evidence, in K. B. (Tidd's Forms.)

in the

to wit. Be it remembered, that in the term of in the year of the reign of our sovereign lord George the Third, now king of the united kingdom of Great Britain and Ireland, &c., came A. B. by his attorney, into the court of our said lord the king before the king himself at Westminster, and impleaded C. D. in a certain plea of trespass on the case upon promises; on which the said A. B. declared against him that, &c. (set out the declaration and other pleadings, and proceed as follows :) And thereupon issue was joined between the said A. B. and the said C. D. And afterwards, to wit, at the sittings of nisi prius, holden at the Guildhall of the city of London aforesaid, in and for the said city, on ——— the day of year of the reign of our said lord the king, before the right honourable Edward Lord Ellenborough, chief-justice of our said lord the king, assigned to hold pleas in the court of our said lord the king before the king himself, Edward Lan, Esquire, being associated unto the said chiefjustice, according to the form of the statute in such case made and provided, the aforesaid issue so joined between the said parties as aforesaid, came on to be tried by a jury of the city of London aforesaid, for that purpose duly impannelled, that is to say, E. F. of — and G. H. of - "" &c., (names and additions of jury,) good and lawful men of the said city of London at which day, came there as well the said A. B. as the said C. D. by their respective attornies aforesaid; and the jurors of the jury aforesaid, impannelled to try the said issue, being called, also came, and were then and there in due manner chosen and sworn to try the same issue; and upon the trial of that issue, the counsel learned in the law for the said

A. B. to maintain and prove the said issue on his part, gave in evidence that, &c. (here set out the evidence on the part of the plaintiff, and afterwards that on the part of the defendant, and then proceed as follows :) Whereupon the said counsel for the said C. D. did then and there insist before the said chief-justice, on the behalf of the said C. D. that the said several matters so produced and given in evidence on the part of the said C. D. as aforesaid, were sufficient, and ought to be admitted and allowed as decisive evidence, to entitle the said C. D. to a verdict, and to bar the said A. B. of his action aforesaid; and the said counsel for the said C. D. did then and there pray the said chief-justice to admit and allow the said matters so produced and given in evidence for the said C. D. to be conclusive evidence in favour of the said C. D. to entitle him to a verdict in this cause, and to bar the said A. B. of his action aforesaid But to this the counsel learned in the law of the said A. B. did then and there insist, before the said chiefjustice, that the same were not sufficient, nor ought to be admitted or allowed to entitle the said C. D. to a verdict, or to bar the said A. B. of his action aforesaid; and the said chiefjustice did then and there declare, and deliver his opinion to the jury aforesaid, that the said several matters so produced and given in evidence on the part of the said C. D. were not sufficient to bar the said A. B. of his action aforesaid, and with that direction left the same to the said jury; and the jury aforesaid then and there gave their verdict for the said A. B. andl. damages; whereupon the said counsel for the said. C. D. did then and there, on the behalf of the said C. D. except to the aforesaid opinion of the said chief-justice, and insisted on the said several matters, as an absolute bar to the said action; and inasmuch as the said several matters so produced and given in evidence on the part of the said C. D. and by his counsel aforesaid objected and insisted on as a bar to the action aforesaid, do not appear by the record of the verdict aforesaid, the said counsel for the said C. D. did then and there propose their aforesaid exception to the opinion of the said chief-justice, and requested him to put his seal to this bill of exceptions, containing the said several matters so produced and given in evidence on the part of the said C. D. as afore