Bon v. Eliz. 532. whom the testatrix meant should take the real, there being but one intent as to both; and this of the personal was a proper key to explain how the real estate was intended to go. The next question was, who was to take? At the time of making the will, there were three persons in equal degree of the name of Pyott, and a fourth who had been so, but was married: two of the three married before the happening of the contingency, upon which they were to take, and so lost their name; whence it was insisted by the plaintiff, that these, not being of the name when the contingency happened, could not claim with him, but he alone was entitled ; and for this was cited Jobson's case, Cro. Eliz. 576. He was not well satisfied with that determination; Smith, Cro. for what was meant was a description of the person, without any regard to the continuation of the name; and had the daughter been unmarried at the devisor's death, she would immediately have taken, nor could her subsequent marriage make her lose her right; it being immaterial, if she was to change her name, at what time she did it. But that case differed from the present, being a remainder to the next of his kin, of his name, after an estate tail to A. Taking therefore the word relation to be nomen collectivum, there was no ground to construe this description to refer to the very name of Pyott, but rather to be a description of the stock, and as if she had said the stock or blood of the Pyotts. For taking it otherwise, and suppose some nearer relation of the testatrix, but of another name at her death, had afterwards changed by act of parliament his former name to Pyott; or if a woman had married some man of the name of Pyott, but no way related to the testatrix, such a one would certainly not be entitled to take; and yet every argument drawn from the bearing the name of Pyott, at the happening of the contingency, would hold equally strong for him or her, as it did for the plaintiff's taking alone, in exclusion of his sisters. This showed it therefore to be too narrow a construction, and that the word relation and name meant the stock of the Pyotts; which she meant to distinguish from any other stock of consanguinity to her. It was like a devise upon condition to marry a person of the devisor's name: the devisee married a man who had changed his name to that of the devisor: held, this was no performance of the condition, for that name meant family. The personal estate was coupled with the real, and one rule must govern both, and the sister that was married was, he thought, equally entitled to take with the plaintiff, and the two other sisters. The testatrix had made no provision that the Marsh v. persons taking should continue to bear the name; and therefore the plaintiff and his three sisters should take equally. Marsh, 1 Bro. R. 293. Amb. 397. 51. A testator devised his estate to three persons Crossly v. for life, and after their death, to the descendants of Clare, Francis Ince, then living in and about Seven Oaks, in Kent. Sir T. Clarke, M. R. said, that a devise to descendants at large had been good; here the devisor added a description of such as he intended should take, which was sufficiently precise and certain: it would be unjust to confine it to the heirs at law, because the word descendants meant all those who proceeded from his body, and therefore the grandchildren of Francis Ince were entitled: but a great grandchild, being born after the will made, was excluded by the words, then living. Leigh v. Doe v. Over, 1 Taunt. 263. What words necessary to describe the Things devised. 52. Lord Leigh devised his estates to his sister Mary Leigh, in strict settlement; remainder "unto the first and nearest of his kindred, being male, and of his name and blood, that should be living at the determination of the several estates therein-before devised, and to the heirs of his body lawfully begotten." It was held by Lord Eldon, in conformity to the opinions of Mr. Justice Lawrence and Mr. Baron Thompson, whom he had called to his assistance, that a person claiming under this limitation must be of the name, as well as the blood; and that the qualification as to the name was not satisfied, by having the name taken by the King's licence, previous to the determination of the preceding estates. 53. A person devised all his freehold estates to his wife during her natural life; and at her decease to be equally divided amongst the relations on his side. It was held, that all those should take who would be entitled to personal estate under the statute of distributions, that is, first cousins; as well in the paternal as in the maternal line. And the devise spoke at the time of the testator's death, not at the time of framing the devise; therefore one who was related in equal degree at the time of making the will, having died before the testator, leaving a son, the son was held not entitled to a share, as a relation. 54. With respect to the words that are necessary to describe the property intended to be devised; as a will is always construed in the most favourable manner, for the benefit of the devisees; the same accuracy is not required in the description of those things which are intended to be devised, as is necessary in a deed; it being enough if the words denote, with sufficient certainty, what is meant to be given. Heredita 55. The words lands, tenements, and hereditaments, Lands, Tewill pass every species of property. And in a modern nements, and case it was determined that money, directed to be ments. laid out in the purchase of land, would pass by the words lands, tenements, and hereditaments whatso- Rushley v. ever and wheresoever. Masters, 3 Bro. R. 99. 477. 56. The words, all my lands, are sufficient to pass Cro. Eliz. a house. If, however, it appears not to have been the intention of a testator to give a house by those words, they will not have that effect. Cro. Eliz: 57. A person being seised of a house in Dale, and Ewer v. of three houses and certain lands in Sale, devised his Hayden, house in Dale and all his lands in Sale to B. It was 476. resolved that the houses in Sale did not pass, on account of the express mention of the house in Dale; for, expressum facit cessare tacitum: and if the testator had intended to devise the houses in Sale, he would have mentioned them, as well as he did the house in Dale. Cro. Eliz. 58. One Bishop being seised of divers lands called Woodden v. Hayes Lands, which extended into two vills, Coke- Osborn,. field and Cranfield, devised all his lands in Coke- 674. field, called Hayes Lands, to his youngest son and his heirs; and in another part of his will he devised, that if his youngest son died without issue, his wife should have Hayes Lands. The question was, whether the wife should have Hayes Lands in Cranfield, or only in Cokefield. And it was resolved by the whole Court, that she should have that only which was in Cokefield, because there was no more devised to the youngest son. But Popham said, if the devise had been to the eldest son, and that if he died without issue, his wife should have Hayes Lands, there peradventure she should have all; because the eldest son had all, Messuage and House. Carden v. the one part by devise, the other by descent; and she should have all which he had. 59. A devise of a messuage will carry with it the curtilage and garden annexed, even without the Tuck, Cro. word appurtenances; for they are part of the mes Eliz. 89. 2 Cha. Ca. 27. Doe v. 2 Term R. Buck v. 1 Bos. 53. The word Bridgewater v. Bolton, 1 Salk. 236. Barnes v. 8 Ves. 604. suage. 60. It was formerly held that the word house did not, in a will, carry the garden or curtilage belonging to such house, without the word appurtenances; but this doctrine is now somewhat altered. 61. A. being tenant for years of a house, garden, stables, and coal-pen, occupied by him, devised in the following words: "I give the house I live in and garden to B." It was resolved that the stables and coal-pen passed, they not being specifically given in the subsequent part of the will; though the testator used them for the purpose of trade, as well as for the convenience of his house. 62. In a subsequent case it was determined by the Court of Common Pleas, that lands usually occupied with a house, did not pass under a devise of a messuage with the appurtenances; it not appearing that the testator meant to extend the word appurtenances, beyond its technical sense. 63. The word estate will pass every kind of property, unless restrained by other words. 64. The Earl of B., by his will, gave part of his personal estate to his son-in-law, and then added these words: "And all other my estate, real and personal." The question was, whether fee farm rents passed by this devise. Lord Holt delivered the opinion of the Court, that the rents passed by the words, all my real and per |