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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 circumstances exist here.
a 3 Term Rep. 356. b 5 Bos. & Pull. 346. Wor... Y. 28
1825. Wright v. Danti
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.
bi Bos. of Pull. 558. c 2 Bos. & Pull. 247.
debts and funeral expenses.” He considers Canning v. Canning, as decisive of the question on the two first words. These two cases must, therefore, be considered as decisive in settling the construction to be given to this part of the present will; in which the phraseology used is still less indicative of an intent to pass the inheritance. The word hereditaments, found there, is wanting here; a word which, in Lydcott v. Willows, Powell, J. considered as sufficient to carry the fee, and this opinion was unanimously confirmed in the Exchequer Chamber. So, also, Lord Holt considered it as sufficient to pass the fee, in Smith v. Tindal ;' and in Frogmorton v. Wright, Lord C. J. De Grey held it might have that operation.
Notwithstanding these decisions, however, the law, as recognised in Canning v. Canning, is considered as settled in Westminster Hall, and the word hereditaments is now held insufficient to pass the fee.
The case of Markant v. Twisden," is, in many respects, analogous to that now before the Court. A., having settled all his freeholds on his wife for life, as a jointure, bequeathed several legacies, and then says, “ all the rest and residue of my estate, real and personal, I give to my wife, whom I make sole executrix.” Held, that the reversion of the jointure lands did not pass, but the personal estate only. The reason assigned
appears decisive of the present question, “ for, as the testator devised no real estate, there could be no residue." So, in the present case, the whole effect of the words rest, remainder, and reversion, (if it should be thought that in themselves they have any to denote an estate larger than one for life,) is destroyed: (1.) By the circumstance that there was no previous disposition of any real estate in the will, and therefore this is not a residuary clause. (2.) By the circumstance that the testator was seized of no estate in reversion or remainder, which could pass under these words, and therefore they are wholly inoperative. (3.) It is perfectly manifest, that the words in question were used simply as descriptive of the subject matter, and not of the interest in that subject matter. In this view the case has a strong resemblance to Pettiward v. Prescott,“ where the testator devised as follows: “I give to R. P. my copyhold estate at P., consisting of three tenements, and now under lease to A. B.” The Master of the Rolls, after showing, from a variety of adjudged cases, that the word estate is sufficient to carry the fee in general, yet decides that the devisee took only a life interest, on the ground that the testator, by the word in that case, did not mean to speak of the quantity of the legal interest, but merely of the corpus or subject in the disposition.
As corroborating the construction of the words reversion and remainder, now insisted on, it may
be observed, in the Statute of Wills of the 32d 1825. Hen. VIII. c. 1. it was enacted, “ that all and every
Wright person and persons having manors, lands, tene v.
Denn. ments, or hereditaments, may give and dispose of them,” &c. Afterwards, the stat. 34 and 35 Hen. VIII. c. 5. entitled, “ An act for the explanation of wills," was passed. This statute recites, that several doubts, questions, and ambiguities, had arisen upon the previous statute, and enacts, that “ all and singular persons having a sole estate, or interest in fee simple, &c. of or in any manors, lands, tenements, rents, or other hereditaments, in possession, reversion, remainder, &c. shall have full and free liberty to give, dispose, will,” &c. In the first statute, it seemed to be thought, that the language implied a present vested estate in the devisor, in order to give validity to this form of disposition. The ambiguity was removed by the second statute, which gave the right, whether the party was seised in possession or in expectancy. The statute, then, authorizes a testator to devise an estate in which he has no present, but only a reversionary interest; but the same language must be used to carry the fee, as if the estate were in possession. The subjects capable of being devised are enlarged, but the form of the instrument is not altered. A reversionary interest, like a possessory interest, may be for life, for years, in tail, or in fee; and it is equally important, that these different quantities of interest should be designated by the will, in the one case, as in the other. The