Wright V. Denn, hold of the introductory clause, to assist them 1825. in ascertaining the intention. The case of Hogan v. Jackson, (Cowper, 297.) admits this doctrine. That case itself did not turn upon the effect of the introductory clause, but upon the other words of the will, which were thought sufficient to carry the fee, particularly the words, "all my effects, both real and personal." The case of Grayson v. Atkinson, (1 Wils. Rep. 333.) admits of the same explanation; and, besides, the inheritance was there charged with debts and legacies. A charge upon lands ated by impli the implica There is no doubt, that a charge on lands may be created by implication, as well as by an ex- cannot be crepress clause in a will. But then the implication cation, unless must be clear upon the words. Where is there tion is plain. any such implication in the present will? The testator has not disposed of the whole of his personal estate, which is the natural fund for the payment of lagacies; non constat, how much or how little he left. For aught that appears, the personal estate may greatly have exceeded all the legacies; and if it did not, that would be no sufficient reason to charge them on the land. It is not a sound interpretation of a will, to construe charges which ordinarily belong to the personalty, to be charges on the realty, simply because the original fund is insufficient. The charge must be created by the words of the will. Now, from what words are we to infer such a charge in this case? It is said, from the words "all the rest;" but, "all the rest" of what? Certainly not of the personal estate, because the words im Wright V. Denn. 1825. mediately following are, " of my lands and tenements," which exclude the personalty. The words, "all the rest," have then no appropriate meaning in reference to the personal estate, for the connexion prohibits it. Can they then be supposed to import "all the rest of my lands, &c. after payment of the legacies," and so be a charge on them? This would certainly be going much farther than the words themselves authorize, and much farther than any preceding clause requires or justifies. A charge of legacies on land would not be a devise of the real estate in the ordinary understanding of men, nor in the contemplation of law. It would make them a lien on, and payable out of, the land; but it would still be distinguishable from an estate in the land. But it is sufficient for us to declare, that we cannot make these legacies a charge on the land, except by going beyond, and not by following, the language of the will; we must create the charge, and not merely recognise it. The case of Markant v. Twisden, (Gilb. Eq. Rep. 30.) was much stronger than the present. There, the testator had settled all his freeholds on his wife for life, as a jointure; and by his will he bequeathed several legacies, and then followed this clause," all the rest and residue of my estate, chattels, real and personal," I give to my wife, who I make sole executrix. But the Court held, that the wife did not take the reversion of the jointure by the devise, for as the testator had not in the preceding part of the will devised any real estate, there could be no residue of real 1825. estate, on which the clause could operate. But, admitting that the present legacies were a charge on the lands of the testator, this would not be sufficient to change the wife's estate into a fee. The clearly established doctrine on this subject is, that if the charge be merely on the land, and not on the person of the devisee, then the devisee, upon a general devise, takes an estate for life only. The reason is obvious. If the charge be merely on the estate, then the devisee (to whom the testator is always presumed to intend a benefit) can sustain no loss or detriment in case the estate is construed but a life estate, since the estate is taken subject to the encumbrance. But if the charge be personal on the devisee, then if his estate be but for life, it may determine before he is reimbursed for his payments, and thus he may sustain a serious loss. All the cases turn upon this distinction. Canning v. Canning, (Moseley's Rep. 240.) Loveacres v. Blight, (Cowp. Rep. 352.) Denn, ex dem. Moor, v. Mellor, (5 D. &. E. 558. and 2 Bos. & Pull. 227.) Doe v. Holmes, (8 D. & E. 1.) Goodtitle v. Maddem, (4 East's Rep. 496.) all recognise it. And Doe & Palmer v. Richards, (3 D. & E. 356.) proceeds upon it, whatever exception may be thought to lie to the application of it in that particular case. We are then of opinion, that there is no charge of the present legacies on the land; and, if there were, no inference could be drawn from this circumstance to en Wright V. Denn. 1825. large the estate of the wife to a fee, since they are not made a personal charge upon her. Wright V. Denn. The next consideration is, whether the words, "all the rest of my lands and tenements," &c. Effect of the import a fee. In the first place, this clause is words, " all lands," &c. the rest of my open to the objection, that it is not a residuary clause in the will, for no estate in the lands is previously given, and consequently, if it operates at all on the fee, it gives the entire inheritance, and not a mere residuum of interest. And if a devise of "all the rest and residue of lands," in a clear residuary clause, was sufficient to carry a fee by their own import, it would follow, that almost every will containing a residuary clause, would be construed, without words of limitation, to pass a fee. Yet, the contrary doctrine has most assuredly been maintained. In Canning v. Canning, (Moseley, 240.) the testator devised as follows: "all the rest, residue and remainder of my messuages, lands, &c. after my just debts, legacies, &c. are fully satisfied and paid, I give to my executors in trust for my daughters;" and the question was, whether these words passed an estate in fee, or for life, to the execuThe Court decided that they passed a life estate only. The authority of this case was fully established in Moor v. Denn, ex dem. Mellor, (2 Bos. & Pull. 247.) in the House of Lords, where words equally extensive occurred; and the authority of this last case has never been broken in upon. The cases which seem at first view to interfere with and control this doctrine, will be found upon close examination to turn on other points. Thus, in Palmer v. Richards, (3 D. & E. 356.) where there was a devise of" all the rest and residue of the testator's lands," &c. his legacies and personal expenses being thereout paid. Lord Kenyon admitted, that the words "rest and residue," &c. were not sufficient to carry a fee; but he relied on the subsequent words, "legacies, &c. being thereout paid," which he considered as creating a charge upon the lands in the hands of the devisee, of such a nature as to carry a fee. In this opinion the Court concurred; and, though this case has been since questioned, on its own circumstances, its general doctrine remains untouched. So, in the case of Norton v. Ladd, (1 Lutw. 755. 759.) where the devise was to A. C., his sister, for life, of all his lands, &c., after the decease of his mother; then to J. C., his brother, "the whole remainder of all those lands and tenements," given to A. C. for life, if he survived her; and if not, then "the whole remainder and reversion of all the said lands, &c. to his sisters, C. E., and A., and to their heirs for ever;" the Court held, that a fee passed to J. C. under the devise, upon the ground, that taking the whole will, the words "whole remainder" properly referred to the estate or interest of the testator undisposed of to his sister, A. C.; and that the words could not relate to the quantity of lands, which the testator intended to devise to his brother, J. C., for he had plainly devised all his lands to his sister, A. C., and all the lands he had devised to A. C. he had devised to J. C.; VOL. X. 30 1825. Wright V. Denn: |