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to recur to the land; he having in the former part of his will used words sufficiently comprehensive to include every species of landed property. He admitted that several of the limitations which were applied to real estate, were inapplicable to the species of property in dispute; but he thought it would be too much to say that that observation alone should preclude the idea that the testator intended to pass the leasehold part of the farm, under the words used in the first clause; as it was well known how frequently many of the limitations used in a will were inapplicable to every species of property disposed of by it. He did not wonder that the Court determined the case of Pistol v. Riccardson with reluctance, for it appeared that that case came before the Court at several different times. He only lamented that the case of Addis v. Clement was not then cited; for Lord Mansfield seemed to feel himself pressed, by a torrent of authorities, to decide contrary to his better judgment. And he could not forbear thinking, that if Addis v. Clement had been mentioned, the Court would have decided the other way with less reluctance. The reason why they determined in that case that the leasehold farm did not pass by that will was, because they thought that all the words there used had received in other cases a certain technical construction, and therefore that they were bound by those decisions. But the Court had not that difficulty to encounter in this case, because here they find another word in the will, farms, which in its general signification means that which is held by a person who stands in the relation of tenant to a landlord. The extrinsic circumstances also weighed strongly in this case. Therefore, taking into consideration the residuary clause, in which the items VOL. VI.

R

Thompson v. Lawley,

2 Bos. 303.

enumerated were all personal chattels, and that the testator did not mean to die intestate as to any part of his property, though the property in dispute was a personal estate, yet as it was connected with land, he thought the construction that the family had put upon the whole will was the true one.

The following certificate was afterwards sent to the Court of Chancery:-"We have heard this case argued, and considered the effects of this will, and are of opinion, taking the whole will together, that the leasehold property in question is not included in the residuary bequest, but passed by the prior devise; although some of the limitations applied to the real estates are inapplicable to this species of property."

103. In a subsequent case Lord Ch. J. Eldon and the other Judges of the Court of Common Pleas held that the rule laid down in Rose v. Bartlet was a rule of property not to be shaken; and therefore that under a general devise, leaseholds did not pass, unless there was something to show an evident intention that they should pass.

104. Mr. Thompson being seised of the manor of W. and other freehold estates in Yorkshire, and Ves. 476. possessed of two leasehold houses; devised his manor of W., and all other his manors, messuages, lands, tenements, and hereditaments, to trustees and their heirs, to the use of his first and other sons of his body in tail male, with several remainders over, in strict settlement; and devised all his money, securities for money, goods, chattels and effects, and all other his personal estate, not before disposed of, to his brother and sister.

Upon a case sent by the Court of Chancery to the Court of C. B. the question was, whether the leasehold passed under the first general devise.

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Lord Eldon stated the reasons for the certificate; and after observing that Lord Kenyon had said in the preceding case, that it was the duty of courts of justice to give effect to the devisor's intention, as far as they could consistently with the rules of law, not conjecturing but expounding his will from the words used; and that he was particularly impressed with the latter expression, "not conjecturing, but expounding his will from the words used;" he said, that whether the rule laid down in Rose v. Bartlet were wisely adopted or not, it was unnecessary to determine; but that case having once established a general rule, he had rather consent pointedly and avowedly to contradict that rule in terms, than to acknowledge it in words and deny it in effect, by raising distinctions which in fact made it impossible for any man to decide in any particular case, what was the legal construction of a will, as to this point, till he had obtained the authority of a court of law, in a judgment upon the will, for the opinion which he gave. That it did not appear that there was any equitable right of renewal, nor even the premises in question blended, in enjoyment or otherwise, with any freehold land; there was no difficulty in distinguishing them from each other, they had never been demised together, at one rent, reserved to heirs; they were short terms. No one of those particular circumstances which were relied upon in former cases existed in this. It was the simple case of terms for years, and a case of property, prima facie that sort of property which a disposition of personal estate must be intended to pass. That the estates included in the general devise were limited to the issue of the devisor in tail, with several remainders over. He entered into an examination of all the preceding cases, and concluded by saying," The rule in Rose

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v. Bartlet is a rule which has been acknowledged for ages, and upon which I shall act, until I am informed by the highest authority that I am no longer to regard it: till I shall be so informed, I shall substantially regard it in judgment; for I think it better to over-rule it altogether, which I must not do, than to deny to it its effect, upon grounds which do not completely satisfy my mind, as solid and safe grounds of distinction."

All the other Judges said the rule in Rose v. Bartlet ought not to be shaken; and the Court certified that the leasehold houses did not pass by the general devise.

105. With respect to the words necessary to pass estates in reversion, wherever a testator shows an Reversions. intention to dispose of all his property by his will, and uses words sufficient for that purpose, any estates to which he is entitled in reversion will pass.

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106. A person having a manor and other lands in Somersetshire, devised the manor to A. for six years, and part of the other lands to B. in fee, and then came this clause: "And the rest of my lands, in Somersetshire or elsewhere, I give to my brother.” It was adjudged that the reversion of the manor passed by the word rest.

107. A person settled part of his lands on his daughter for life, and devised another part to his wife for a year after his death; and then devised all his lands, not settled or devised, to T. K. and his heirs. Adjudged, that the reversion of the lands settled on his daughter, passed by this devise,

108. A person being seised in fee, devised Blackacre to A. for life, and devised to B. all his lands not before devised, to be sold, and the money to be divided between his younger children. The question was,

whether the reversion of Blackacre passed by the devise of all his lands not before devised; and it being referred to the Judges of C. B., they certified that the reversion was well devised.

Lidcot,

109. A person devised a house to A. and his wife Willows v. for their lives; and then, the better to enable his wife 2 Vent. 285. to pay his legacies, he devised to her all his mes- 3 Mod. 229. suages, lands, tenements, and hereditaments whatsoever, within the kingdom of England, not before disposed of, to hold to her and her heirs. It was also found that the testator left sufficient to pay his legacies, without the reversion of the house.

The Court of King's Bench determined that the reversion of the house did not pass; but this judgment was unanimously reversed in the Exchequer Chamber.

110. A person who was tenant for life, remainder Dalby v. to his first and other sons in tail, with the reversion Skin. 631. Champernon, in fee in himself, having a son and daughter, devised all his lands, tenements, and hereditaments to his daughter in fee, in case his son should die without

issue. The son did die without issue; and Lord Holt Fletcher v. Smiton, said, though the testator had only a dry reversion in infra, c. 11. fee, yet that by the words, all his lands, tenements, and hereditaments, such reversion would pass.

111. The words, all my lands out of settlement, and also the words, not by me formerly settled, will comprehend reversions in fee after estates tail.

Lytton,

Sir W. Lytton being tenant in tail after pos- Falkland v. sibility, of some lands, remainder in fee to trustees, 3 Bro. Parl. in trust for himself and his heirs; and being also Ca. 24. tenant in tail of some other lands, remainder to the S. C. 2 Vern. right heirs of his father, and having no issue, devised all his messuages, lands, tenements, and hereditaments whatsoever, out of settlement, to his nephew

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