mean to devise this reversion; for if he had, then it Ca. 219. could never go to James. A writ of error was brought 3 Bro. Parl. in the House of Lords; and the Judges having given their opinion that the reversion in fee did not pass by this devise, the judgment of the Court of King's Bench in England was affirmed. 118. A person being seised in tail of an undivided fourth of an estate, and entitled to the reversion in fee of another fourth, expectant on the determination of an estate tail, reciting that she was entitled to an undivided fourth of an estate, &c., which she thought was an estate in fee, devised it to a trustee in fee, upon several trusts: and then came the following clause-" And all the rest, residue, and remainder of my estate and effects, I direct to be sold and disposed of, as soon as may be after my decease, and thereout the expences of my funeral to be paid, &c." The Court of King's Bench held that the reversion did not pass; for although those general words were sufficient to pass a fee, in order to answer the purposes of the will; yet in this case they said it was manifest that this estate was not in the contemplation of the testatrix when she made her will, it being only a reversion expectant on the determination of an estate tail, which her aunts might have barred; and the testatrix having by the former part of her will disposed of all the freehold estate to which she supposed herself entitled. They observed that it was clear from the purpose to which a part of the produce of what she directed to be sold was to be applied, namely, the paying of her funeral expences, that she only meant to dispose of something which could be sold immediately; and that this reversion might never have descended to her heirs. Roe v. Avis, 4 Term R. 605. And Mortgages, or Lands held in trust for others. Wilkinson Cro.Car.447. 119. It was formerly held that lands mortgaged might be devised by the mortgagee, by the words, all my mortgages. But afterwards the courts laid it down, that these words would only comprehend mortgages for years, and not mortgages in fee, especially if they were forfeited. 120. A person seised of divers lands in A., B., and v. Merryland, C.; the lands in C. being in him by mortgage, and forfeited; made his will; and after devising the lands in A. and B. to several persons and their heirs, he gave all the rest of his goods, chattels, leases, estates, mortgages, debts, ready money, plate, and other goods, whereof he was possessed, to his wife, after his debts and legacies were paid; and made her his executrix. The Court doubted whether the estate in mortgage passed to the wife, because the word mortgage was coupled with personal things; and because the testator used the words,-whereof he was possessed. Wynne v. 1 Vern. 3. 121. A person who was seised of lands in fee, and of mortgages in fee, devised all his lands to A. B., and gave several legacies, and then said, "All the residue of my estate I give to my executor." It was resolved, that the mortgage went to the executor. But if the testator had only devised his lands, without giving any legacies, and had bequeathed the rest of his personal estate to his executors, there perhaps the mortgaged lands would have passed to A. B., for else there would be nothing to answer and make sense of the clause, "all the residue ;" for that implied that he had already devised some part of his personal estate; or at least it showed that he intended part of it should have passed. 122. This doctrine, however, has been entirely altered; for the nature of mortgages being now clearly §35. ascertained, and the whole transaction till foreclosure Tit. 15. c. 2. being considered as a personal engagement only, in which the money is the principal, and the conveyance of the land only an accessary, it is fully established that neither the general words, lands, tenements, and hereditaments, nor any other words particularly appropriated to the description of real estates, will carry mortgages in fee, if the testator has other property to satisfy those words. Russell, 123. A person being seised of several freehold Strode v. manors, and of a great personal estate, made his will, 2 Vern. 621. and after devising part to his wife for life, gave all other his lands, tenements, and hereditaments, out of settlement, to his nephew. The testator afterwards foreclosed and got releases of the equity of redemption of some mortgages in fee. One of the questions in this case was, whether these mortgages passed by the will under the words, lands, tenements, and hereditaments; and it was agreed by the Lord Chancellor, assisted by the Master of the Rolls, and two Judges, that mortgages in fee, although forfeited 1 Atk. 605. when the will was made, did not pass by those words. 124. If a testator has no other property answering the description given in his will, in point of situation and other circumstances, except mortgages, they will pass by general words, though not particularly adapt ante, ed to the subject, because otherwise the will would have no effect. 125. A person possessed of a mortgage of the Clarke v. Swan Inn, at Chelsea, made his will, and thereby Abbot, 2 Ab.Eq.606. devised to A. and his heirs "all his freehold messuages and garden grounds at Chelsea." It was held by Lord Hardwicke, on a question whether the mortgaged interest would pass by this description, that as 1 Inst. 205 a. N. Att. Gen. v. Buller, Bravbroke v. 8 Ves. 417. Roe v. Reade, 8 'Term R. 118. it did not appear the testator had any other lands there, it certainly would. 126. Various opinions have been entertained, within these few years, respecting the question, whether a general devise passes lands whereof the devisor is only mortgagee or trustee. In a case before Lord Rosslyn in 1800, it was contended that general words did not pass an estate held in trust for another, unless there appeared to be an intention that it should pass; to which his Lordship said, that was certainly the understanding; but perhaps the most convenient rule would have been the reverse, as it might be more easy to find a devisee than an heir. Lord Redesdale, who was then Attorney General, sug. gested, as amicus curia, that the rule, that an estate held in trust should pass by a general devise, would not be the most convenient, from the frequent instances of estates tail created by general words, in consequence of which the legal estate might get into an infant, fettered with an entail. 127. In a subsequent case, the Master of the Rolls, Sir W. Grant, having determined that an estate held in trust passed by the general words of a will; on an appeal to Lord Eldon, he said, "I am disposed in this cause to concur with the opinion of the Master of the Rolls, meaning rather to state my judgment that the rule is not, that in every case where general words are used, the property shall or shall not pass; but that in each case you must look at every part of the will for the intention with regard to such property. I do not know in experience any case in which the proposition is laid down so strong one way or the other, as it was laid down in the Attorney General v. Buller. I know no case which states as the rule, that trust estates shall not pass, unless the intention that they should pass appears; and I incline to think they will pass, unless I can collect from expressions in the will, or purposes or objects of the testator, that he did not mean they should pass. In this case there is no circumstance, except one, that I shall observe upon, denoting any special intention. It is the case of a dry trust, all the debts and legacies being long paid, as I now understand. There was therefore a pure legal estate in the testator, nothing remaining to be done but to reconvey. There is no one circumstance in this will to cut down the general effect, upon any notion of intention, unless it can be said, that where he meant to create a trust, viz. as to the personal estate, he joins another person with his wife, giving the real estate to her alone; but that is too thin an evidence of intention, to afford much inference. The result is this: a will containing words large enough, and no expression in it authorizing a narrower construction than the general legal construction, nor any such disposition of the estate as is unlikely for a testator to make, of any property not in the strictest sense his, as complicated limitations; nor any purpose at all inconsistent with as probable an intention to vest it in his wife as devisee, as to let it descend. I know of no case in which a mere devise in these general terms, without more, where the question of intention cannot be embarrassed by any reasoning upon the purpose or objects, or the person of the devisee, has been held not to pass the trust estate. If there was any such case, I would abide by it; but I do not feel strong enough upon authority or reasoning to dissent from the decision of the Master of the Rolls. |