TITLE XXXVIII. DEVISE. CHAP. XIII. Construction-What words create an Estate for Life, 1. Where an express Estate for | 33. Or an Annuity during the 5. Though a Power of Disposal 35. The word Estate when de be given. 9. A Devise without any Words of Limitation. 25. Though charged with a Payment out of the Estate devised. scriptive of local situation. 43. What words create a Term 45. And uncertain Interests. IT SECTION 1. for Life is T has been stated in the preceding chapter, that Where an exalthough an express estate for life be devised, press Estate yet if the general intent of the testator require that devised. the issue of the devisee for life should take by descent from him, the courts have enlarged his estate into an estate tail: but where the manifest general intent of the testator does not require that the estate for life expressly given should be enlarged into an estate tail, the devisee will only take an estate for life, în consequence of the rule that expressum facit cessare tacitum: and it is observable that the doctrine of carrying the general intent into effect, in contradiction to the particular intent, is of a modern date. 1 Roll. Ab. 837. pl. 13. 1 Vent. 231. Bamfield v. Popham, 2. A person devised to his eldest son for life, remainder to the sons of his body lawfully begotten, and if they aliened, that his daughters should have the same estate, remainder to his right heirs. It was resolved that the eldest son had but an estate for life, and that his son should have it by purchase; because it was expressly limited that he should have it only for life. Lord Hale says, the words in this case were; to his eldest son for life, et non aliter, and that it was held to be an estate for life by reason of the words non aliter. 3. A person devised his estate to trustees and 1P. Wms. 54. their heirs, in trust for Popham for life, remainder to his first and other sons successively in tail male; and for want of issue male of Popham, to another person. Afterwards the testator by a codicil, reciting that he had by his will given the premises to Popham and the heirs male of his body, willed that if the estate should determine, and Popham should die without issue male, then his estate to be disposed of in a particular manner. The questions were, first, Whether the words of the will, viz. for want of issue male of Popham, did not by implication give an estate tail to Popham. 2o. Whether, admitting the words in the will did not give an estate tail, the codicil, reciting that the testator had by his will devised the premises to Popham and the heirs male of his body, would not so far influence and explain the will, as to make it an estate tail, though it was not so before. It was resolved unanimously that Popham had only an estate for life by the will; and that the same was not enlarged or altered by the codicil; for there being an express estate given to Popham for life, with remainder to his first and every other son, &c. the words, if Popham should die without issue male, should not enlarge his estate to an estate tail, in regard these amounted only to make an estate tail by implication; and words of implication could never destroy what was before expressed; so that the words, if he should die without issue male, could mean no more than if he should die without sons. 4. A testator devised all his freehold estates to Blackburn v. Edgeley, trustees, in trust to convey the same to Ewer Edge- 1 P. Wms. ley for life, remainder to trustees during his life 600. to preserve contingent remainders, remainder to his first and other sons in tail male, remainder to his daughters in tail general, as tenants in common; with power to E. Edgeley to make a jointure; and if he should die without issue, then he devised the premises over. It was contended that E. Edgeley, by virtue of the words, if he die without issue of his body, should have an estate tail in the premises; to which it was answered, that here was an express estate for life limited to E. Edgeley, and the words, if he should die without issue, being only words of implication, would not merge and destroy an express estate for life. The Court exploded the notion that words of implication should not turn an express estate for life into an estate tail; and said that if I. devise an estate to A. for life, and after his death without issue, then to B., this will give an estate tail to A. according to Sonday's case but here being a limitation, upon E. Edgeley's death, to his sons, and after to his daughters, the following words,-if E. Edgeley should die without issue, must be intended, if he should die without such issue. And as to what had been urged, that unless these words were to create an estate tail VOL. VI. Y ante, c. 12. Though a Power of Disposal be given. c. 11. § 10. Anon. 3 Leon. 71. 4 Leon. 41. Daniel v. Upley, Noy, 80. Tomlinson v. Dighton, 1 P. Wms. 149. in E. Edgeley, his son's daughters could not take; it did not appear that the testator intended E. Edgeley's son's daughters should take, for he might think that on E. Edgeley's dying without issue, his name and family would be determined; for which reason he might limit it over to the daughters of E. Edgeley himself. Besides, the son of E. Edgeley would be tenant in tail, and when of age might, by docking the entail, give the premises to his daughters. 5. Although a devise to a person generally, with a power to give and dispose of the estate devised as he pleases, creates an estate in fee simple; yet where an estate is devised to a person expressly for life, with a power of disposal, the devisee will only take an estate for life, with a power to dispose of the reversion. 6. A person having two daughters, devised lands to his wife for life, and at her decease, she to give the same to whom she pleased. The wife granted the reversion to a stranger, and committed waste; the two daughters brought an action of waste. It was held, that by the devise the wife had but an estate for life, with an authority to give the reversion to whom she pleased; and her grantee would be in by the will: for the testator had given his wife an express estate for life, and therefore she could not by implication have any greater estate: but if an express estate had not been given to the wife, by the other words, an estate in fee simple had passed. 7. J. Tomlinson devised lands to his wife for her life, and then to be at her disposal; provided it was to any of his children, if living; if not, to any of his kindred that his wife should please. It was resolved by the Court of K. B. upon a writ of error from the C. B., that the wife had but an estate for life, with a power of disposing of the inhe ritance. And Lord Ch. J. Parker said, the difference was where a power was given with a particular description and limitation of the estate, as here, and where generally, as to executors, to give or sell; for in the former case the estate limited being express and certain, the power was a distinct gift, and came in by way of addition; but in the latter, the whole was general and indefinite; and as the persons Hearle v. intrusted were to convey a fee, they must conse- Greenbank, quently, and by a necessary construction, be supposed $ 32. S. P. to have a fee themselves. Tit. 32. c. 13. 8. John Russell by his will gave a legacy of Hockley v. Mawbey, 1000l. to his son Richard, and an estate in fee to a 1 Ves. Jun. nephew; and then directed his executrix to lay 143. out 2000 l. of his personal property in the purchase of freehold estates, within twelve months after his decease. The estates so to be purchased, together with four messuages in Johnson's-court, Fleet-street, and elsewhere, and the reversion of others (describing them all), and all his leasehold estates, he gave to his wife Rebecca for her life, and from and immediately after her decease, to his son Richard and his issue lawfully begotten or to be begotten, to be divided among them as he should think fit; and in case he should die without issue, he directed that all, as well his present freehold and leasehold, as the estates directed to be purchased, should be sold, and the money arising from the sale should be divided among the children of his brother Russell, and of his sisters Willis and Parks, equally. There was a subsequent direction that no part either of his present freehold and leasehold, or of the estate so directed to be purchased, should be sold during the lives of his wife and son. All the rest, residue, and remainder of his property and effects whatsoever and |