Vide infra, c. 14. Warner v. 3 Bro. Parl. Court of King's Bench answered-"If Elizabeth Belchier would have taken an estate tail in case she had survived the testatrix, we think, by her dying before the testatrix, it is a lapsed devise, and Catherine the daughter of Elizabeth can take nothing." The Court of Chancery having decreed in conformity to this certificate, an appeal was brought in the House of Lords, and the following question was put to the Judges: "Whether Catherine Belchier, the daughter of Elizabeth Belchier, took any and what estate under the will of Susan Jolland." The Lord Ch. B. delivered the unanimous opinion of the Judges present, that Catherine Belchier took no estate under the will of Susan Jolland *. The decree was affirmed. 27. Rich. White having issue Simon his eldest son, and Hamilton his second son, devised all his lands in B. to his eldest son Simon, and the heirs of his body; and for default of issue of his said son Simon, then he devised his said estate to his son Hamilton, and the heirs of his body. Simon died in the lifetime of his father, leaving issue four sons and four daughters. The question was, whether the eldest son of Simon took any thing by this devise, or whether it lapsed to Hamilton, the person next in remainder. The Court of King's Bench in Ireland determined that the eldest son of Simon took under this devise. This judgment was reversed by the Court of King's Bench in England. A writ of error was then brought in the House of Lords; and it was contended on behalf of the eldest son of Simon, that he ought to It was also held that Catherine Jolland took an estate tail, infra, c. 14. take under this devise. 1. Because it was plain the testator did not mean to exclude the issue of his eldest son from the inheritance, the children of Simon being alive, and known to the testator, at the time he made the devise to Simon and the heirs of his body. 2. Because the remainder to Hamilton was expressly limited to take effect only in default of issue of the testator's son Simon; and no devise was made of the estate until such default should happen; and it was a principle in law, that the heir should take every thing which was not devised from him. 3°. Because courts of justice have been always anxious to effectuate the intentions of testators, where they are not contrary to the rules of law, or settled authorities ; and there was no case to be found in which it had been adjudged that a devise to a man and the heirs of his body lapsed for the benefit of a person in remainder, from the circumstance of the first devisee dying in the testator's lifetime; where it appeared that the heir of the body of the first devisee was likewise heir at law of the testator. On the other side it was contended, that by the established rules of law, the devise to Simon became void, by his death in the lifetime of the testator; and the remainder to Hamilton the second son, took effect immediately on his father's death. That this doctrine had been adopted in early times, and had continued down to the present. It was established in the early part of the reign of Queen Elizabeth, and was recognised in a variety of cases down to the year 1780, nor was it ever judicially contradicted or impeached. But there appeared at the end of the report of Fuller v. Fuller, Cro. Eliz. 422, a dictum ante, § 22. of Lord Ch. J. Popham, that where a devise was to a son in tail, his issue, in case of his death in the life man. time of his father, should take before the remainder, But this at most was an extrajudicial opinion; ante, 26. and was not admitted in the case of Hodgson v. Ambrose. Doe v. Kett, 4 Term R. 601. Tit. 12. c. 1. § 91. Att. Gen. v. 2 Ves. 77. The following question was put to the Judges: "Whether, in the event. that had happened, the defendant Hamilton White took any and what estate in the lands of B. under the devise to him, for default of issue of Simon White." The Lord Ch. B. delivered the unanimous opinion of the Judges present, that Hamilton White took an estate tail; and the judgment of the Court of King's Bench in England was affirmed. 28. A republication of a will after the death of a devisee in tail, will not give any estate to the issue of the devisee. 29. N. G. devised lands to her god-daughter and the heirs of her body, who died in the lifetime of the testatrix, leaving a son. The devisor knew of the death of the devisee, and of the birth of her son; after which she made a codicil that operated as a republication of her will. It was determined that the devise having become void by the death of the devisee, did not operate by its republication, so as to give any estate to the son of the devisee, 80. It has been stated, that where a trust is suf ficiently created, it will fasten itself on the land, and will not become void by the incapacity or death of the trustee. In consequence of this principle it has been determined, that where an estate was devised upon trust for a charity, the death of the devisee in the lifetime of the testator did not make the devise void, 31. Lord Hardwicke has observed, that in the case of copyholds, though the land passes by the surrender, and the will is only directory of the uses, yet if the devisee dies in the lifetime of the devisor, the devise is void. descends to 82. In the case of a lapsed devise in fee, the estate The Estate will not go to the residuary devisee of the real estate, but will descend to the heir at law of the testator. the Heir. Id. 184. S. P. 33. A person devised his messuage in E. to F. C. Wright v. Hall, and his heirs, and all the rest and residue of his Fortesc. 182. messuages, lands, and hereditaments to I. L. his Roe v. Fludd, heirs and assigns for ever. F. C. died in the lifetime of the testator, by which the devise to him lapsed. And the question was, whether the latter clause in the will would carry over the lapsed devise to the residuary devisee, or it should descend to the heir at law of the testator. The Court held that the devise of all the rest and residue did not convey what was devised before; for wills must be construed from the intent of the testator at the time of making them, which appeared to be to give his whole estate to F, C. and his heirs in the messuage of E.; and at the time when the will was made he had no residue left in that messuage; and the devise to F. C. being void, the messuage would descend to the heir. Willes Rep. 34. In a subsequent case of the same kind, reported Doe v. by Lord Ch. J. Willes, the following propositions Underdown. were laid down. 1o. That the intent of the testator 293. ought always to take place, when it is not contrary to the rules of law. 2°. That the intent of the testator ought always to be taken as things stood at the time of making his will; and was not to be collected from subsequent accidents, which the testator could not then foresee. 3°. That when a testator in his will had given away all his estate and interest in certain lands, so that if he were to die immediately Where the Devise is uncertain. 5 Rep. 68 b. Doe v. Joinville, 3 East, 172. nothing remained undisposed of, he could not intend to give any thing in those lands to his residuary devisee. And judgment was given accordingly. 35. Where it is impossible to discover, from the words of a will, what was meant to be given, or to whom; the will is void for uncertainty. 36. Thus it is laid down in 33 & 34 Eliz., by Wray and Anderson, Ch. Justices, that if a man has two sons of the name of John, and devises his lands to his son John, if no direct proof can be made of his intent, as to which of his sons he meant, the devise is void for the uncertainty. |