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Wright

V.

Denn

debts and funeral expenses." He considers 1825. 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

a 2 Ventr. Rep. 285. c 3 Wils. Rep. 418.

b 11 Mod. Rep. 103.

d Gilb. Eq. Rep. 30.

Wright

V.

Denn.

1825. 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

a 7 Ves. Rep. 541.

Wright

V.

Denn.

be observed, in the Statute of Wills of the 32d 1825. Hen. VIII. c. 1. it was enacted, "that all and every person and persons having manors, lands, tenements, 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

1825.

Wright

V.

Denn.

case of Ager v. Poole," shows this construction to be correct; and Peiton v. Banks' is to the same effect. Both of these cases are stronger than the present, for in each of them the testator had such a future interest as he described.

As to the words "provided she has no lawful issue," the argument on the other side is, that they imply a condition precedent. To this it is answered, (1.) That if a condition precedent to the vesting of any estate in the wife, the proviso would be entirely at variance with the whole design of the testator. He evidently intended an immediate interest to pass to the wife, which could not take place, if the fact that she should have no lawful issue is to be a condition precedent. That could only be ascertained by her dying without issue. (2.) If it be a condition precedent, she took no estate, because she, in point of fact, had lawful issue. To obviate these conclusions, an interpolation is made in the will, and the testator is presumed to have said, lawful issue by himself. The answer is, that such a presumption is not warranted by the language employed. The case of Norton v. Ladd, turns upon the extent to be given to the expression "whole remainder," after a disposition of a life estate in all the lands, and the interest of an heir at law was not involved. Lambert's lessee v. Paine, turns upon the meaning to be attached to the word estate. Wheeler v. Waldron is deprived

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of much of its authority by a remark made in a note to Chester v. Chester."

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As to the second clause of the will, which contains the words, "to be by her freely possessed and enjoyed," the legal signification of this phraseology has been frequently settled. In Loveacres v. Blight is a clause to this effect: Item, to my two sons, T. M. and R. M., whom I make and ordain my sole executors, all my lands and tenements freely to be possessed and enjoyed alike." In this case there were, (1.) Introductory words, which Lord Mansfield always considered as entitled to much weight. (2.) There was a charge, and he thought it but reasonable to infer an intention to pass a fee, because that alone would enable the devisees to comply with the testator's directions fully and completely. (3.) Freely to be enjoyed, he considered, in that case, as meaning absolutely, because, having charged the estate, it could not mean free from encumbrances. None of these circumstances exist here, and, therefore, the case is not analogous, and cannot warrant the same construction. The case of Goodright v. Barron, more nearly resembles the case before the Court. There, after the introductory words " as touching my worldly estate," the testator devised to B., whom he made his executrix, "all and singular his lands, messuages, and tenements, by her freely to be possessed and enjoyed." These are the identical words here employed, and no other distinc

1825.

Wright

V.

Denn.

a 3 P. Wms. 56.

b Cowp. 352.

c 1 East, 220.

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