for the payment of his debts and legacies; and concluded his will with this residuary devise,-" As to all the rest of my goods and chattels, real and personal, moveable and immoveable, as houses, gardens, tenements, my share in the copperas works, &c., I give to the said A. ;" without using the word estate, or any words of limitation whatever. Lord Hardwicke doubted at first, but was afterwards clearly of opinion, as the testator had a fee, that A. took a fee. 42. A person seised of shares in the corn market of the city of London, devised to his nephew the income of his shares in the corn market, for his natural life; and all the rest of his estates, with all monies in the stocks, &c. to be divided into equal shares to Eliz. Snow and four other persons, share and share alike. It was resolved that the last clause comprehended the reversion of the shares in the corn Jackson v. Hogan, ante, market, and carried the absolute inheritance in them c. 10. § 76. to Eliz. Snow and the other devisees. Fletcher v. Whatever else Ihave not 43. The words, whatever else I have not disposed disposed of. of, or any other words of that nature, will pass an estate in fee simple. Hopewell v. 1 Salk. 239. 44. Thus where a person devised his manor of B. to A. and his heirs; and then proceeded thus:Com. R. 164. "Item, I devise all my lands, tenements, and hereditaments to the said A. Item, I devise all my goods and chattels, money and debts, and whatever else I have not before disposed of, to the said A,, he paying my debts and legacies." The words Remainder and Reversion. Lord Ch. J. Trevor held, that under the concluding clause, whatever he had not disposed of, an estate in fee passed. 45. If a testator devises the whole remainder of his lands, these words will pass an estate in fee simple. Ladd, 187. 46. A person devised to his sister, and after her Norton v. decease, the whole remainder of his lands to his brother, if he survived her. Adjudged, that these 1 Ld. Raym. words could not extend to the quantity of the land, but to the quantity of estate in the land; for the whole land was given to the sister for life, so there could be no remainder of that; therefore it must be the remainder of the estate in the land, and by consequence a fee simple passed. 47. The word reversion is also sufficient in most cases to pass an estate in fee simple. 2 Ves. 48. Thus where a person devised in these words, Baylis v.Gale, "Also I give to my son Charles the reversion of MS. Rep. those two tenements now in the possession of J. C.; also I give him the reversion of the tenements my sister T. now lives in, after her decease." Lord Hardwicke." As to the word reversion, I am also of opinion that it passes the whole interest. A reversion is a right of having the estate back again; and I think that according to Norton v. Ladd, where ante, § 46. the devise was of a remainder, this is a good devise of the fee, unless there had been words to restrain it. How can the testator be thought to have given but a life estate herein to his child, when possibly the life of the particular tenant might have lasted longer than Piton v. that of the child, and so the child have taken Banks, nothing at all. This proves he meant to give him a contra. fee. 1 Vern. 65. 48. It is a long established rule in the construction Devise on of wills, that if a person devises lands, with a direc- Condition of paying a Sum tion that the devisee shall pay a gross sum out of it, of Money. the devisee will take an estate in fee, without any Cowp.R.841. other words; though the sum directed to be paid should not amount even to a year's rent of the land. 1 Inst. 9 b. Willock v. This construction is founded on the principle that a devise of land shall in all cases be intended for the benefit of the devisee; now if a devisee was in cases of this kind only to take an estate for life, he might die before he received from the land the gross sum he had paid; and consequently be a loser by the devise. 49. T. W. devised copyhold lands, of the nature Hammond, of borough english, to his eldest son; paying 40 s. to each of his brothers and sisters. Adjudged that Cro. Eliz. 204. 3 Rep. 20. Collier's 16. he took a fee. 50. A testator devised lands to his brother, paying and to others small sums, all. The land was of the Adjudged that the brother Case, 6 Rep. to one person 20 s, amounting to 45 s. in value of 3 1. per annum. took an estate in fee. Moore v. 3 Keb. 49. Reeves v. 51. A person devised all his estates, to A. paying 40l. a piece to his sisters. Adjudged a fee simple. And it appearing that the personal estate was not sufficient to satisfy legacies, it must consequently b intended his real estate. Besides, the devisee was not executor, and therefore it could not be intended of the personal estate. 52. A. by his will devised lands to B., and then 11 Mod. 208. bequeathed legacies; and gave 5 l. to C., and directed B. to pay it, but gave him two years for that purpose. The jury found the land to be worth fifty shillings a year. It was adjudged that B. took a fee; for the devise was of a sum in gross, and debitum in præsenti solvendum in futuro. Besides, it was a sum certain, to be paid to B. at all events, whether the land yielded full five pounds or not, and so not like the cases where the sum devised was to arise out of the profits. 53. A devise of lands, charged with the payment or charged of debts and legacies, will, for the same reason, pass and Legacies. with Debts an estate in fee simple. Ackland, 54. A person devised to his brother Richard all Ackland v. his lands, tenements, and hereditaments, and what- 2 Vern. 687. ever else he had in the world, and made him executor, desiring him to pay his debts and legacies. Adjudged on a special verdict that the devisee took an estate in fee. R. 38. 55. A. seised in fee of lands, made his will and Freak v. gave his cousin B. 20 l., to be paid out of his lands Lea, 2 Show. within one year; and after other legacies, he gave all his lands to Richard, generally. Richard took an estate in fee. Adjudged, that Richards, 56. A will was made in these words," All the Doe v. rest, residue, and remainder of my messuages, & Term R. lands, tenements, hereditaments, goods, chattels, 356. and personal estate whatsoever; my legacies and funeral expences being thereout paid; I give, devise, and bequeath unto my sister J. D., and constitute and appoint her my executrix, and residuary legatee, of this my will." Lord Kenyon said, that the first words alone were not sufficient in law to carry a fee; but that he relied on the words immediately following, "my legacies and funeral expences being thereout paid," as sufficient for that purpose: for the fund which was to answer those demands, ought to be as ample as possible. Those charges extended to, and were to be taken out of, the property which was before given to the residuary legatee; and if that devise did not comprise the whole of the devisor's estate, the interest Vide Denn v. Miller, as well as the land, the legacies and funeral expences infra, ch. 13. might not be paid. TS Doe v. 57. A person devised in these words,—“ I give 8 Term R. 1. and bequeath my freehold house with the appurtenances, &c. and all furniture thereto belonging, to E. G. whom I make executrix of this my last will; she paying all my just debts and funeral expences, and legacies before mentioned, twelve months after my death. I likewise leave to the said E. G. all the rest and residue of my personal estate." Goodtitle v. Maddern, 4 East, 496. The judge before whom the cause was tried being of opinion that the devisee took a fee, by reason of the words, "she paying all my debts," nonsuited the plaintiff. On a motion to set aside that nonsuit, Lord Kenyon said," I am clearly of opinion that the direction given at the trial was perfectly right. In cases of this kind the question has always been, whether the charge is to be paid only out of the rents and profits of the estate, or whether it is to be paid by the devisee at all events; in the former case the devisee only takes an estate for life, but in the latter he takes a fee, otherwise he might be a loser by the devise. Here the devisee is bound to pay the debts and legacies, at all events; and the charge is thrown on her in respect of the real estate. The personalty is given to her by the next clause in the will." 58. A person devised in these words,-" All the rest I have in the world, both houses, lands, goods and chattels, stock in trade, and all other things that belong or may belong to me, I give to my present wife J. P., my executrix; so that she shall sell my stock in trade and household goods, and if these will not pay the debts, she shall sell next the house of fee in Penzance, and not Prospednick; so that my executrix shall pay in good time all lawful debts." |