situate and being in the parish of Pailton, in the county of Warwick, then in his (the testator's) own occupation, and including the said close sought to be recovered, unto and to the use of his said brother Thomas Smith, his heirs and assigns, for ever: and, in an event. which did not happen, the testator gave and devised the same unto and to the use of his own right heirs, for ever, subject nevertheless and charged and chargeable, after the decease of the said Thomas Smith, with the payment of certain legacies bequeathed by the will.

The said Joseph Smith died on or about the 18th of April, 1824; and the said Thomas Smith, then becoming and being seised in fee of the entirety of the said close, duly made and executed his will, bearing date the 8th of January, 1835, in the words following:

"In the name of God, Amen. I, Thomas Smith, of Churchover, in the county of Warwick, farmer, being of sound mind, memory, and understanding, do make this my last will and testament in manner and form following, that is to say,-First, I give all my goods, chattels, stock of cattle, implements in husbandry, money at interest, rights, credits, whatsoever and *wheresover, and of what kind *123] soever it may consist of, and all my real and personal estate whatsoever and wheresoever, and of what kind soever it may consist of, into the hands of my kinsman John Clarke, of Pailton, farmer, and my friend Richard Brumage, of Rugby, baker, in trust to and for the several uses hereinafter mentioned, that is to say, after the payment of all my just debts, funeral expenses, and the expense of proving this my last will, are paid, then my will is that my said trustees shall convert all my personal estate into money, and place the said money at interest. Then I give all the profits arising from my real estate, and the interest of my personal estate, unto my wife Francis Smith, to be applied towards her maintenance and support of her at the discretion of my said trustees, if she shall need the whole of it, during her natural life. Then, after her decease, I give unto my niece Mary Clarke, wife of my trustee John Clarke, the sum of 5001.; and, in case she shall depart this life before she shall be possessed of the said 500, then my will is that my said trustees shall divide the said legacy in equal shares amongst all the surviving children of my niece Mary Clarke aforesaid. Then my will is that my said trustees shall put my kinsman George Smith in possession of all that my close or piece of land called The first Close,' situate in Pailton Lordship, which close I give unto my kinsman George Smith, together with all the appurtenances thereunto belonging. Then I give all that my close or piece of land called 'The Second Close,' with all the appurtenances thereunto belonging, unto my kinsman William Smith, son of my late brother William Smith." And, after giving another close in similar words, the said testator willed that his said trustees should "divide all the residue and remainder of his personal estate" amongst the persons in his said will mentioned.

*The testator died in 1838, and his widow died shortly after *124] him. At the time of making the said will, the said testator was about seventy-five years of age, and without children; and the claimant George Smith, who is the devisee of "The first Close," was the son of the testator's nephew and heir presumptive, and, at his death, became his heir at law.

The defendants claim under the said William Smith, the devisee, who died in December, 1859.

The testator had no other real estate than the lands specifically devised in the said will.(a)

All his debts, funeral expenses, and the expense of proving the will, were satisfied by the trustees out of the personal estate.

The question for the opinion of the Court was, whether the claimant George Smith was entitled to recover.

Field, for the plaintiff.-The question is whether, under the second devise in the will of Thomas Smith (which was made before the passing of the Wills Act, 7 W. 4 & 1 Vict. c. 26), the devisee William Smith took an estate in fee or an estate for life. It is submitted that he took for life only, there being no words of limitation, and nothing in the context whence the Court can necessarily infer that the testator intended to give him the fee. The authorities upon this subject, which are very numerous, are all collected in Jarman on Wills, where the result of them is thus summed up,-Vol. 2, c. 33, 2d edit. 210,-"Nothing is better settled than that a devise of messuages, lands, tenements, or hereditaments (not estate), without words of limitation, occurring in a will which is not subject to the newly-enacted rules of testamentary *construction, confers on the devisee an estate for life only, notwithstanding the testator may have commenced his will [*125 with a declaration of his intention to dispose of his whole estate, or may have given a nominal legacy to his heir, or may have declared an intention wholly to disinherit him, or the will may contain an antecedent devise to the heir for life of the testator's property which is the subject of dispute, or the devise in question may be to a class embracing the heir, as to the testator's children, or, lastly, notwithstanding there may, in another part of the will, or in the immediate context, be a devise expressly for life, affording the argument, therefore, that the testator meant something more, or at least different, by an indefinite devise; though any, or, it is conceived, the whole of these circumstances concur in the same will, it is indisputably clear that such a devise will confer only an estate for life." [WILLES, J.The particular devise commences with the word "Then." What does that refer to? If it may be read "thence" or "thenceforward," it would give William a fee.] It may be that the trustees took a fee: but the testator only charges his personal estate with his debts and funeral and testamentary expenses; and the trustees are to hold only until the death of the wife. The devise in question, however, is not to take effect until after her death. The estate is given to the trustees for certain limited purposes, then to the wife for life, then an executory devise over in favour of William Smith as to the property now in question. [WILLES, J.-In Blagrave v. Blagrave, 4 Exch. 550, 568,† Parke, B., cites with approval the rule laid down by the Court of Exchequer in Watson v. Pearson, 2 Exch. 581,† that, "where the purposes of the trust on which an estate is devised to trustees are such as not to require a fee in them, as, for instance, where the trust is to pay annuities, or to pay over rents and profits to a party for life, there, if, subject to the specified trusts, the estate is given [*126

(a) This was added during the argument, at the suggestion of the Court, the fact being admitted to be so.

over, the parties taking under such devise over have been held to take legal estates; the estate given to the trustees (even given with words of inheritance) having been in such cases taken to have been meant to be coextensive only with the trust to be performed."] In Doe d. Small v. Allen, 8 T. R. 497, the testator devised thus," As to what real and personal estate it has pleased God to bless me with (all my debts being first paid out of my personal, and, if that is not sufficient, out of my real estate). I give and dispose of the same as follows, I devise all my messuages, lands, tenements, and hereditaments in S., &c., to A.:" and it was held that A. took only a life estate. Lord Kenyon there says: "Although the Court are not now prepared to give their final judgment on this special verdict, I cannot forbear expressing my present sentiments on it. It has been frequently lamented, that, at first, after the passing of the Statute of Wills, the Courts did not require the same technical expressions in a will to pass a real estate as are necessary in conveying the estate by deed; for, then we should not have had more cases on the construction of wills than of deeds; and it very rarely happens now that a question arises on the construction of a limitation in a deed. There are certain received words that are well known and have from time to time been used by conveyancers in drawing deeds; and these exclude all doubt as to their legal meaning: but, in expounding wills, a greater latitude of construction has been allowed. After an anxious endeavour to discover the intention of a testator, it frequently happens that we can only conjecture what his intention was; and sometimes there is scarcely enough to form even a conjecture. Formerly, Sir J. Bland made his own *will; and, at the close of it, he said that he

*127] had disposed of his estate in so clear a manner that he thought it impossible for any lawyer to doubt about it. This will was afterwards contested; and it came before Lord Hardwicke, who said that he was so utterly at a loss to conceive what was the real intention of the testator, that he wished he could find some ground on which to form a conjecture. So, in the case of Right d. Mitchell v. Sidebotham, Dougl. 759, Lord Mansfield, whose mind was as equal to the explanation of difficult points as that of any lawyer who ever sat in Westminster Hall, admitted the difficulty of deciding questions of this kind, saying, 'I verily believe, that, in almost every case where by law a general devise of lands is reduced to an estate for life, the intent of the testator is thwarted; for, ordinary people do not distinguish between real and personal property. The rule of law, however, is established and certain, that express words of limitation, or words tantamount, are necessary to pass an estate of inheritance.' d. Gaskin v. Gaskin, Cowp. 657, the testator devised thus,-"As to all such worldly estate as God has endued me with," I give and bequeath as follows,-"I give and devise all that my freehold messuage and tenement lying in G., together with all houses, &c., and appurtenances whatsoever belonging to the same, to M. R., G. R., and T. R. equally:" and then he bequeathed, amongst other pecuniary legacies, 10s. to his heir at law and it was held that the devisee took an estate for life only. Lord Mansfield said: "It is settled in devises, as well as in deeds, that, if no words of limitation are added, the devisee can only take an estate for life; because the law implies a life estate only

In Denn

where there are no words of limitation. But, as there are no technical words necessary in a will, if the testator makes use of what is *tantamount, as, if he says, 'I give to such a one in fee simple,' or all my estate,' that will carry all his interest in the land [*128

devised. But there must be words in the will to control the rule of law; which I believe, in a variety of cases, thwarts the intention of the testator. I suspect extremely, that, in this very case, the testator meant to give his nephews a fee in the premises in question; for, he had no other landed property. He makes them residuary legatees of his personalty, and gives a disinheriting legacy to his heir at law, agreeable to the vulgar notion taken from the Roman law, that an heir is cut off with a shilling. Because, by the Roman law, a will that passed by the heir was called inofficiosum testamentum. But the single question is, whether we can find any words in the will to take this case out of the rule of law: if we cannot, it must be adhered to. I think it is impossible to find words in this will sufficient to control the rule of law." In Frogmorton d. Wright v. Wright, 3 Wils. 414, the testator by his will, commencing "as touching the disposition of all my temporal estate as it hath pleased Almighty God to bestow upon me," I give and dispose thereof as followeth,-"Imprimis, first of all, I will that my debts and funeral charges be paid and discharged. Item, I give unto Henry Wright and Nathan Wright, my nephews, two houses at Bank, in Leeds, with a croft and appurte nances belonging to them, to be equally dealt between them. Item, I give unto William Wright, my nephew, two houses at Seacroft, with a croft and appurtenances belonging to them, now in the occupation of J. C. and E. T.," &c. De Grey, C. J., said: "It may seem probable that the testator's intention was that his nephew William should have a fee; but it is a clear rule that there must be express words, or a necessary implication, to disinherit the heir at law neither of these appear in the present *case, and therefore the legal operation of the words of the will must govern." In Right d. Compton [*129 v. Compton, 9 East 267, the circumstance of the testator having given a life estate to his son (his heir at law) did not entitle the grandchildren to the fee, where the devise over to them was without words of inheritance. In Doe d. Child v. Wright, 8 T. R. 64, the devisor, after these introductory words, "as touching such worldly and personal estate wherewith it hath pleased God to bless me," gave an estate for life to his wife in his estates in A. and B., and then devised to J. W. "all his lands, freehold, copyhold, and leasehold, in A.," and "all his estate, freehold and copyhold, in B.:" and it was held that J. W. took only an estate for life in remainder in the devisor's estate in A. In giving judgment, Lord Kenyon says: "It has frequently been lamented that the same technical words were not required in wills as in deeds; because, had such a rule been adopted, few questions would have arisen on the construction of wills. Some rules, however, have been established by a series of decisions on this subject and we should be removing landmarks if we were to abandon that which has been adopted as a rule of property, in the pursuit of a doubtful intention of a testator. Perhaps it would be too critical to advert to particular expressions in a will of this kind, drawn by a person ignorant of the profession: but it is observable, that, in almost

all the other clauses of the will, the testator used the word 'estate,' which is sufficient to pass a fee. He has not, however, used that word in the clause on which the question arises, nor any word equivalent to it; and there is no part of the will that enables me to decide, consistently with the authorities, that J. W. took a fee in the premises in *130] question."(a) In Doe d. Knocker v. Ravell, 2 C. & J. *617,† a testatrix, after a preamble "as for such temporal estate as God hath given me, I give, devise, and dispose of it in the following manner," gave to J. R. a house, &c., to come into possession at the age of eighteen, and to S. R. two other houses, &c. (without using any express words to pass the fee), and the residue of her estate, which was limited by enumeration to personalty: she also gave to S. R. the rent of the house before given to J. R. until he was eighteen, and, in the event of his death before that age, directed that all that was left to him should descend and go to S. R.: and it was held that S. R. took an estate for life only in the two houses. [WILLIAMS, J.—That case rather belongs to the first class of cases you referred to.] That case and Denn d. Gaskin v. Gaskin are scarcely to be distinguished from the present.

Hayes, Serjt., for the defendants.-The question is purely one of intention,-what, looking at the whole will, did the testator intend? By "all his real estate," he evidently meant "all his interest in the lands." And he gives all to his trustees. [WILLES, J.-A devise to trustees only conveys an estate commensurate with the necessity of the case: Watson v. Pearson, 2 Exch. 581;† Blagrave v. Blagrave, 4 Exch. 550.+] It is impossible to doubt the intention of the testator here: and there is no case which prevents the Court from giving effect to it. In Newland v. Shepherd, 2 P. Wms. 194, the testator, having disposed of some part of his real estate, and of some legacies, devised the residue of his real and personal estate to trustees, their heirs, &c., in trust to pay and apply the interest and produce thereof for the maintenance and benefit of such of his children by his daughter N. as should be living at the time of his decease, until his said grandchildren should come to the age of twenty-one years or be married: *131] and it was held that the absolute right and property of the real and personal estate passed to the grandchildren after that age. Lord Macclesfield says: "In this case the testator did not care to trust his son-in-law with providing for his children out of his own estate, not only during the time when their maintenance would be least expensive (during their tender years, and when every parent is bound to provide for his children); but even here he takes a care which seems unnecessary: and, can it be imagined that the testator would show a concern for his grandchildren when they did not want it, and leave off that care at the only time when they could be supposed to stand in need of it, viz.: as soon as they should come of age and be marriageable? Besides, it is plain the testator gives all from the heir at law, by vesting the whole estate in fee, as well as the legal property of the personal estate, in trustees, which would not have been done had anything been intended to remain to the daughter and heir: not only the interest, but the produce of the real and personal estate is to be applied by such trustees; and, to help this plain intention of the

(a) And see Doe d. Wright v. Child, 1 New Rep. 335.