Lord Ellenborough said it was clear that the executrix and residuary legatee took a fee in the pre mises in question; for she was charged with payment of all the debts, and she had the land devised. to her, as well as the personal estate, all in the same clause, in order to enable her to satisfy that charge; and she could not have less than a fee in it, because she was empowered to sell it, which she could not do without having the fee: as to what was said in the will relative to the sale of the stock in trade, and household goods, in the first instance, for payment of debts, and if those were not sufficient, then the house in Penzance, that was merely directory to her, to apply the personalty first for payment of debts, before the realty, which was no more than what the law directs in the common case. The distinction turned in all the cases on this, whether the debts, &c. were merely a charge on the estate devised, or a charge on the devisee himself, in respect of such estate in his hands. Judgment, that the devisee took an estate in 87. fee. 59. The cases where the payment of debts and legacies is charged on the estate devised, and not on the devisee, will be stated in the 13th chapter. 60. Where lands are devised, with a direction that the devisee shall make a perpetual payment thereout, the devisee will take an estate in fee; for otherwise he could not fulfil the intention of the testator. Goodtitle, 4 v. Maddern, East. 496. Doe v. Snelling, 5 East, Or with annual Payment for ever. Baker, Cro. Eliz. 61. A devised lands to C. a younger son, and Shailard v. willed that C. should pay annually to his eldest son B. and his heirs, 31. Resolved that this was an estate 744. in fee. 62. Lands were devised to I. and S. and they were to pay yearly to the merchant taylors of London, 61. 10s. It was resolved that the devisees took a Webb v. Smith v. 2 Salk. 685. 11 Mod. 102. Or for the a third per son. Lee v. Reed v. 2 Mod. 25. fee simple, by reason of the annual payment, without any regard to the greatness or smallness of the sum: as the charge continued for ever, the estate must continue so too, for without the estate the charge could not be. 63. A person devised four coats to four boys of the parish of D. for ever, and all his lands, tenements, and hereditaments, and all his personal estate to his wife, and her assigns. Adjudged, that the wife had a fee simple, because she took the lands with a perpetual charge. 64. A devise upon condition of paying an annual sum to a third person, during the life of such third person, will give the devisee an estate in fee simple; for otherwise the annuity might cease, before the death of the person to whom it was given. 65. A person devised lands to A. B. conditionally that he should allow to his son Nicholas, meat, drink, &c. during his natural life. It was argued that this was a fee simple; for Nicholas had no manner of provision else it was plain the testator designed the maintenance to be for Nicholas's life; and not that when A. B. should die, Nicholas should starve: therefore it was clear that A. B. must have a larger estate than for his own life, for otherwise, instead of having a benefit by the will, he would be prejudiced by it, if he should perform the testator's will. Adjudged that A. B. took an estate in fee simple. 66. A person devised two houses to his son Robert, upon condition that he should pay unto his two sisters 5. a year, with a clause of entry for non-payment. The Court was of opinion that a legacy or devise was always for the benefit of the party; so that it was reasonable to make such construction of the will, that he might have no possibility of a loss: for if there was a devise to one, upon condition that he paid a sum of money; if there was a possibility of a loss, though not very probable, it should be construed a fee; and therefore the estate in this case being limited to Robert, and charged with payments to the sisters, during their lives, plainly proved the intent of the testator, that the devisee should have an estate in fee simple. Judgment was given accordingly. 2 Burr. 1531. 67. T. Ives devised a house to Clement Boreham Baddeley v. for his life, paying thereout 40s. a year to Robert Leppingwell, Boreham the testator's grandson; and gave two copy- Wilmot, 223. hold tenements to Sarah Boreham, she paying thereout 40 s. a year to her sister Elizabeth. The question was, what estate Sarah Boreham took. It was admitted that if this was an annuity for life to Elizabeth, it would make it a devise in fee to Sarah; and as this could not be effectuated without construing the inheritance to be given to Sarah, it raised a violent presumption that the testator intended her an estate of inheritance. The Court was of opinion that Sarah took an estate in fee. 2 68. A person having a copyhold estate, after giving Goodright several legacies, gave to Mary Ramsey 20 s. a year R. v. Allin, for her life, to be paid by his executors. He also 1041. gave to his kinsman T. Allin all his two yard-lands, with his house and homestead; and all the residue and remainder of his goods, chattels, debts, mortgages, leases and personal estate, he gave to the said T. Allin, he paying his debts, legacies, and funeral expences; and made the said Allin executor. The question was, whether the devise to T. Allin was for life or in fee. Goodright v. 13. Ibbetson v. Beckwith, ante, § 23. Andrew v. 5 Term R. Lord Ch. J. De Grey said he thought the real estate devised to Allin was in fee simple; and that upon two grounds: 1st. By implication; not indeed a necessary implication, strictly speaking, but so far necessary as it clearly arose from the reasonable construction of the will. The annuity was given to Mary Ramsey for her natural life, to be paid by his executor; which being of an uncertain duration, must have an estate in fee to support it. 2dly. All the several devises to Allin followed each other immediately, and must therefore be construed as one clause; so that the payment of debts and legacies was charged on the real, as well as the personal estate. The other judges concurred. 69. A testator began thus-" As touching all such temporal estate, &c." and then devised a house to his grandson, paying yearly and every year out of the said dwelling-house, the sum of 15 s. to his granddaughter. Lord Kenyon.-"Though the general introductory words used in this will would have some effect in the construction of the subsequent devises, as was said by Lord Talbot in a case before him; they would not of themselves carry a fee. But it has been very properly admitted, that the words, paying yearly and every year, are sufficient for that purpose. That annuity was intended to continue during the granddaughter's life, though it is not so expressly mentioned; and therefore of necessity the grandson must take an estate in fee." Judgment was given accordingly. 70. The following case was sent out of Chancery for the opinion of the Court of King's Bench. A person devised certain estates to her sister for life, and after her decease, she gave the same to E. South ouse, charged with the payment of an annuity of 201 to J. T. for and during the term of his natural life. The Court certified that E. Southouse took an estate in fee. And Lord Kenyon observed, that the determination in Ansley v. Chapman, was founded on infra, c. 13. more limited grounds than those adopted in modern times. 71. Where lands are devised, with a direction that the devisee shall pay an annual sum out of the rents and profits of the lands, the devisee will only take an estate for life. The cases on this point will be stated in the thirteenth chapter. over. 72. It has been resolved in some modern cases, ADevise with a Limitation that a devise generally, with a limitation over, if the devisee dies under age, and without issue, will give an estate in fee. 73. A person made her will, beginning as follows: Frogmorton v. Holyday, "As to my worldly affairs and estates, &c. I do dis- 3 Burr. 1618. pose thereof in manner following." She then gave to her son J. H. a certain house; and if the said J. H. should happen to die in his minority, or before he came to age, then she gave the said house to her three daughters. Lord Mansfield said, the devise over, if the son should die under twenty-one, to the three daughters, showed the intention of the testatrix to give a fee; for if he lived to twenty-one he might then dispose of it himself; if he died before, he could not, and then she disposed of it. If the son was barely to take an estate for life, the time of his death must be immaterial to the devise over; but limiting it over only upon the contingency of his dying in his minority, showed that she intended to give him an absolute estate in fee, which he might dispose of, if he came |