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1825. and vest the inheritance in a stranger, it is incumbent upon him to establish one or the other of these two propositions :

Wright

V.

Denn.

1. That there are express words creating an estate in fee in the devisee, (which is not pretended, and which, if actually existing, would preclude all argument,) or,

2. An intent, so clearly expressed as to require, by necessary implication, that such an estate should pass.

The circumstance, that no words exist in this will, which, by their intrinsic force, carry any larger estate than for life, raises a legal presumption, that no larger interest was intended to pass. If the testator had designed the heirs or issue of his wife as the objects of his bounty, some language indicating such an intention would have been used. If, in addition to this negative circumstance, we find that these persons in that capacity were present to the mind of the testator, and yet are not made objects of his bounty, it superadds a positive weight to the legal presumption that they were not designed to be so, and that their omission was not merely accidental.

There being, then, no express words carrying the fee, let us examine those particular expressions which are relied upon to show the actual intent that the fee should pass. These words are, (1.) "All the rest of my lands and tenements;" (2.) The words "reversion or remainder;" (3.) The words "freely to be possessed and enjoyed."

1. As to the words, "all the rest of

my lands

Wright

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Denu.

and tenements." One of the earliest cases in 1825. which the effect of similar words came under consideration, was that of Wilkinson v. Maryland. There, A. being seised of divers lands in A., B. and C., the lands in C. being in him by mortgage forfeited, devised the lands in A. and B. to several persons, and then devised "all the rest of the goods, chattels, leases, estates, and mortgages, whereof he was possessed," to his wife, after his debts and legacies paid, made his wife executrix, and died. The question was, whether the fee passed to the wife by this devise; and it was held, that an estate for life only passed. In that case, there were several circumstances rendering it stronger in favour of a fee than the present. (1.) There was a previous clause devising part of the property, and there was, therefore, an antecedent to which the word rest could relate. Here there is no such prior clause, and the word rest is senseless, or the testator attaches to it his own peculiar signification. (2.) The devise of the real property is there in the same clause which contains a bequest of the personalty; and, therefore, the inference as to the testator's intention was irresistible, that he designed to give the same interest, i. e. an absolute interest, in all the subjects of the devise. (3.) In the case cited, the word estate is employed as the descriptive term, which is a word frequently held sufficient of itself, proprio vigore, to carry a fee.

a Cro. Car. 447. 323,

1825.

Wright

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The case of Canning v. Canning, is very similar to the present. There the words of the will were, "All the rest, residue, and remainder, of my messuages, lands, or hereditaments, &c. after my just debts, legacies, and funeral expenses first paid, I give to my executors in trust for my daughters." It was adjudged, that the executors took only an estate for life; and, notwithstanding the general character of Mosely, as an inaccurate reporter, this case has been frequently recognised as law. This is evidently a much stronger case than the one now before the Court. (1.) It is properly a residuary devise; this is not. (2.) It contained the term hereditaments, emphatically embracing the inheritance, according to the opinion of many eminent lawyers. (3.) The estate was devised" after debts, legacies, and funeral expenses first paid." Yet, under all these circumstances, it was held, that the words "rest, residue, and remainder of my messuages, lands, or hereditaments," so much stronger and more comprehensive that those of the present testator, were merely descriptive. The ground of that determination was, that the words rest, residue, and remainder, being unaccompanied by any words of limitation, could not operate on the inheritance. This applies, with at least equal force, to the present case. In Peiton v. Banks, where one devised to his wife for life, and the

a Mosely, 240.

b 2 Bos. & Pull. 251.

c 2 Bos. & Pull. 251. Per Macdonald, C. B.

d 1 Vern. Rep. 65.

reversion to A. and B., to be equally divided, &c. it was decreed, that they were tenants in common for life only. That case, and the one referred to by Sergeant Maynard, were stronger than the present, since the freehold having been already disposed of, it might have been plausibly argued, that the term reversion there used, ex vi termini, necessarily included the inheritance. In this case no such argument. would apply, the word rest being without an antecedent, and being a term more appropriate, as descriptive of the subject than of the quantity of interest. In Doe v. Richards," where, after bequeathing a certain leasehold estate, the testator devised "all the rest, residue, and remainder of my messuages, lands, tenements, hereditaments, goods, chattels, and personal estate whatsoever," the Court held, that these words were not sufficient to carry the fee. The property thus devised being, however, made subject to a charge, this circumstance was held sufficient, although the propriety of that part of the decision seems to have been questioned." But the authority of the case, so far as it determines that these words were insufficient, of themselves, to pass the fee, has never been controverted. In that case, the clause was properly a reversionary clause, a previous devise having been made, leaving a reversionary interest to be disposed of. There also the word hereditament was used: neither of which eircumstances exist here.

a 3 Term Rep. 356.

b 5 Bos. & Pull. 349

1825. Wright

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1825.

Wright

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The next case is that of Den v. Moor," which deserves the more weight as an authority, because a second action was afterwards brought on the same title; the judgment rendered in the K. B. reversed in the Exchequer ; and that judgment afterwards reversed in the House of Lords, and the original judgment in the K. B. affirmed. It may, therefore, be presumed to have been thoroughly examined and considered. In that case, the testator having first devised a life interest in a copyhold messuage, then uses these words: "all the rest of my lands, tenements and hereditaments, either freehold or copyhold, whatsoever and wheresoever, my goods, chattels, and personal estate, of what nature or kind soever, after payment of my just debts and funeral expenses, I give, devise, and bequeath the same unto my wife S. C., and I do hereby nominate and appoint her, my said wife, sole executrix of this my will." In delivering the opinion of the twelve judges, Macdonald, C. B. states the question arising under that will to be, "Whether the words are materially distinguishable from those used in other wills, and which have been held not to denote an intention so expressed by the testator, as to enlarge that which would, otherwise, be an estate for life only, into a fee ?" He then states, that this would depend upon the effect of the word rest, of the word hereditaments, and of the provision "after payment of my just

a 5 Term Rep. 558.

b 1 Bos. & Pull. 558.

c 2 Bos. & Pull. 247.

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