testator, the word 'produce' shall be taken in the larger sense, and then it will signify whatever the estate will yield by sale or otherwise." [BYLES, J.--The word "produce" was held to be synonymous with "proceeds." WILLIAMS, J.--In 2 Jarman on Wills 224, it is said that the registrar's book shows that the word "produce" was not in the will in that case. BYLES, J.--Mr. Jarman (Vol. I, p. 459) makes Lord Brougham say, on appeal in Davis v. Davis, 1 Russ. & M. 645, that Newland v. Shepherd had been often questioned: and he refers to Fonnereau v. Fonnereau, 3 Atk. 314, 316, where Lord Hardwicke said "he could see no reason to approve *of" that case [*132 as there reported.] In Peat v. Powell, Ambler 387, 1 Eden 479, the testator devised the residue of real and personal estate to executors, for A., "till he attain twenty-one, and then the trust to cease;" and it was held that this gave the whole beneficial estate to A.-Lord Keeper Henley saying, "that it was the same as if the testator had said I give the estate to trustees, in trust for A. till he attain twenty-one, and then to A. and his heirs." So, in Challenger v. Sheppard, 8 T. R. 597, it was held, that, where an estate in fee is devised to trustees in trust for A. B., without any limitation of the estate to the cestui que trust, the latter takes the beneficial interest in fee. [WILLIAMS, J.-Those cases, if well founded, depend upon the implied intention of the testator to provide for the management of the estate until the person who is to take the beneficial interest attains an age to manage it for himself. They have but little to do with the case before us. If we are to assume here that the legal fee was in the trustees, our hands are tied. We can decide no other question than that.] In Knight v. Selby, 3 M. & G. 92 (E. C. L. R. vol. 42), 3 Scott N. R. 409, by a will made before 1838, the testator devised as follows," As to my messuages, lands, and tenements, and real estate, I dispose thereof as follows: I give and devise Whiteacre unto A. and B. and their heirs, for the use of C. for life, and after her decease to the use of D. and E. as tenants in common:" and it was held that D. and E. took a fee. Tindal, C. J., after adverting to the use by the testator of the words "real estate," says, "There is moreover an express devise to trustees and their heirs, independently of any evidence of intention arising out of the use of the term 'real estate.' He (the testator) gave a fee where there was no necessity; as the persons designated as trustees take no estate under the will." And Coltman, J., *said: "Giving the land to trustees and their heirs is strong to show that cetteux que trust were to take the same interest. That was the ground upon which Challenger v. Sheppard was decided." Erskine, J., says: "The cases cited clearly show that words found in the introductory part of the will are not, of themselves, sufficient to carry the fee under a subsequent general devise. Although they indicate an intention to dispose of the fee, that intention may not have been carried into effect. Taking, however, the whole of this will together, the testator has shown an intention to dispose of all his interest, and that the devisees in remainder should take a fee. It would have been useless to give the estate to the trustees and their heirs, except for the purpose of passing the whole fee to the beneficial devisees. And Maule, J., says: "The words in the introductory part of this will indicate an intention to use words in a subsequent part of C. B. N. S., VOL. XI.-7

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the will which should operate as a devise of the fee. Still, the intimation of an intention to devise a fee will not of itself enlarge a general devise into a fee. But the preliminary clause throws light upon terms used in the devising clause which otherwise might be doubtful. To understand the meaning of a particular clause, we ought to look at the words which occur both before and after. Here, the word 'heirs' in the introductory part of the will imports absolute ownership. In the subsequent parts of the will, the testator appears to assume that he has sufficiently expressed his intention to pass that absolute ownership; and the will is silent as to the extent of interest which the beneficial devisees in remainder are to take. I think that the intention to pass the fee intimated in the introductory part of the will is sufficiently, though not technically, brought down to the beneficial devisees." [WILLIAMS, J.-No doubt, Challenger v. Sheppard and Knight v. *Selby establish, that, if an estate is given to *134] trustees and their heirs, and the uses declared are such as would only give an estate for life, the estate given to the trustees will enlarge the words of the subsequent devise, and give the cestui que use the same estate as if the words of inheritance had been repeated in the devise to him: especially if there are other words in the will to indicate that such was the intention of the testator. In Challenger v. Sheppard, the trustees took a legal fee; in Knight . Selby, an equitable fee. The difficulty is, that there are functions here that render it necessary to give the estate to the trustees and their heirs, in order that there may be persons to carry out the will.] The question is altogether one of intention. It is submitted that the trustees took the legal fee, and that their interest determined on the death of the wife. In Moore v. Cleghorn, 10 Beavan 423, the devise was to trustees and their heirs "upon trust for the use and benefit of A., B., and C.," without words of inheritance: and it was held that A., B., and C. took in fee. Lord Langdale, M. R., there says: "By the devise to the three trustees their heirs and assigns for ever, the whole estate and interest of the testator in the land passed to them: but the testator declared that the gift was 'upon trust for the use and benefit' of the three boys. Everything, therefore, which the trustees took was given to them in trust for the use and benefit of the three boys. I think, therefore, there is no resulting trust to the testator or his heirs."

Field, in reply.-In conformity with the decision in Watson v. Pearson, 2 Exch. 581,† the trustees, having no duty to perform which rendered it necessary that they should take more, have only an estate for life. [WILLIAMS, J., referred to Doe d. Kimber v. Cafe, 7 Exch. 675. There, by a will made before 1838, a *testator devised as follows,-"I give and devise to A., B., and

*135] C., and their heirs and assigns, all that (naming the premises), upon trust, nevertheless, to receive the rents and profits, and, after deducting all taxes and expenses whatsoever, to pay the same unto such persons and for such purposes as my daughter E. M. shall direct, and, for want of such direction, to and for her sole and separate use; and, from and immediately after the decease of my said daughter, upon trust to pay and apply the said rents, &c., for and towards the Inaintenance and education of my said daughter's children then living, during their minority; and, upon the youngest living of my said

daughter's children attaining the age of twenty-one, I give and devise the said house and premises unto all the children of my said daughter who shall be then living, in equal shares and proportions, share and share alike." In one of the devises contained in the will, an estate in fee was devised to the testator's grandson, on attaining twenty-one years; and, by a concluding clause of the will, the testator, as to the residue of his estate not before specifically disposed of, devised and bequeathed the same to his eldest son, to hold to him, his heirs, executors, administrators, and assigns, according to the nature of the several estates, absolutely for ever; and the testator also authorized his trustees, at their discretion, from time to time to grant leases of any part of the premises in trust, for any term not exceeding twentyone years, at the best rent that could reasonably be obtained, but without taking any fine for such leases; and it was held, that the estate of the trustees and their heirs was to continue only for such time as the objects of the trust required it, and that the power to lease was a power only to be exercised during the continuance of this estate so limited to them; and therefore that the three grandchildren of the testator did not take a fee in the premises in question, but [*136 took estates for life only, as tenants in common. Hayes, Serjt. There was no power to sell for payment of debts there. WILLIAMS, J.-No doubt that is a distinction.] In 2 Jarman on Wills 251, it is said: "The reader will have perceived (though the position has not hitherto been distinctly advanced) that the same principle which determines whether the trustees take any estate regulates also the nature and duration of that estate; the established doctrine being (subject to certain positive rules of construction lately propounded by the legislature, and which will be presently considered) that trustees take exactly that quantity of interest which the purposes of the trust require; and the question is not whether the testator has used words of limitation, or expressions adequate to carry an estate of inheritance; but whether the exigencies of the trust demand the fee simple, or can be satisfied by any and what less estate. Thus, in the case of a devise to a trustee and his heirs, upon trust to pay and apply the rents for the benefit of a person for life, and, after his decease, to hold the lands in trust for other persons; the direction to apply the rents being limited to the cestui que trust for life, the estate of the trustee will terminate at his decease."

WILLIAMS, J., now delivered the judgment of the Court:(a)— This case depends on the construction of the will of Thomas Smith, made before the new Wills Act came into operation: and the question is, what quantity of estate in the close for the recovery of which the action is brought passed under the devise of it to *William Smith, now deceased, through whom the defendants claim.

[*137 The will gives all the testator's real and personal estate to trustees, in trust, after the payment of his just debts and funeral and testamentary expenses, to convert the personal estate into money, to be placed at interest; and then the testator gives all "the profits" arising from his real estate, and the interest of his personal estate, to his wife, to be applied to her maintenance and support at the discretion of the (a) The Judges present at the argument were,-Williams, J., Willes, J., Byles, J., and Keating, J.

trustees, if she shall need the whole of it, during her life; and afterwards to his niece Mary Clarke a legacy of 5007. Then he wills that his trustees shall put his kinsman George Smith into possession of a close called "The First Close," which he gives to the said George Smith. And this is followed by the devise in question, viz. "Then I give all that my close or piece of land called 'The Second Close,' with all the appurtenances, unto my kinsman William Smith, son of my late brother William Smith."

The plaintiffs say that this devise to William Smith, being without any words of limitation, did not pass more than a life estate; and that the plaintiff George Smith, who is the testator's heir at law, is therefore entitled.

The defendants contend, that, though there are no words of limitation in the devise to William Smith, yet, upon the whole will, a clear intention is sufficiently shown to give him an estate in fee.

The plaintiffs relied on Jarman on Devises, Ch. 33, p. 247 (third edit.), and the authorities there cited, to the effect that nothing is better settled than that a devise of lands without words of limitation, occurring in a will made before the new Wills Act, confers on the devisee an estate for life only, notwithstanding the testator may have commenced his will with a *declaration of his intention to dis*138] pose of his whole estate, or the will may contain an antecedent devise to the heir, for life, of the property which is the subject of dispute.

The defendants relied on the cases of Challenger v. Sheppard, 8 T. R. 597, Knight v. Selby, 3 M. & G. 92 (E. C. L. R. vol. 42), 3 Scott N. R. 409, and Moore v. Cleghorn, 10 Beavan 423 (affirmed, on appeal, 9 Jurist 596), and contended, and rightly contended, we think, that these authorities establish the general rule, that, whenever an estate in fee is devised to trustees, in trust, without any limitation of the estate of the cestui que trust, the latter takes the beneficial interest in fee; because, in such case, everything which the trustees take is given for the benefit of the devisee, and there is therefore no resulting trust for the heir.

But the case of Doe d. Kimber v. Cafe, 7 Exch. 675,† shows, that, even where there is a devise expressly to trustees and their heirs upon certain trusts, followed by a devise to A. B., without any words of limitation, the trustees take that quantity of interest only which is requisite for the purposes of the trusts, and A. B. takes only an estate for life, if the legal fee is not requisite for those purposes.

In answer to this authority, the defendants insisted that the trustees in the present case take the legal fee by reason of the trust to pay debts. And we are of opinion, looking at the whole of the will, that the trustees do take the legal fee; for, although the testator's direction to them, after giving them all his real and personal estate, to convert, after payment of his debts, the personal estate into money, and perform the other specific trusts, might per se constitute only a charge of the debts on the real estate, yet we think this direction may in the present case be regarded as sufficient to indicate that the testator meant the *trustees to take the legal fee conferred on them by the word "estate," and to hold it after the performance of the other

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trusts, in trust for William Smith, to whom it is devised. Our judg ment must therefore be for the defendants.

Judgment for the defendants.

OLIVER v. OLIVER. Nov. 8.

The receiver of a letter has a sufficient property in the paper upon which it is written to entitle him to maintain detinue for it against the sender, into whose hands it has come as a bailee. DETINUE for letters. Pleas, non detinet, and that the letters were not the property of the plaintiff. Issue thereon.

The cause was tried before Channell, B., at the last assizes at Exeter. The facts were as follows:-The plaintiff and defendant were brothers. The letters for the recovery of which the action was brought, which related to family affairs, were written and sent by the defendant to the plaintiff, and had been given back by the plaintiff to the defendant; and proof was given of a demand and refusal to restore them. There was contradictory evidence as to whether the letters had been given by the plaintiff to the defendant to be kept by him as his own property, or whether they had been merely handed to the defendant as custodian, to be redelivered to the plaintiff on request.

The learned Judge told the jury that the receiver of a letter had such a property in the paper as to entitle him to maintain an action against the sender if by any means it got back into his hands; and that it was for them to say, upon the evidence before them, whether the letters in question had been given to the defendant that he might retain them as his own property, in which case the defendant would be entitled to their *verdict, or whether they were merely deposited with him to take care of them for the plaintiff, in which case the latter would be entitled to the verdict.

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The jury at first proposed to return a verdict for the defendant, if he would consent to deposit the letters with a third party. This not being acceded to, they asked the learned Judge if a verdict for a farthing would carry costs. The learned Judge declined to answer the question and ultimately the jury returned a verdict for the plaintiff for one farthing.

His lordship declined to make any order either as to the delivery up of the letters or as to the costs.

Coleridge, Q. C., on a former day in this term, moved for a new trial on the ground of misdirection and that the verdict was against the evidence. The learned Baron ought to have told the jury that the plaintiff had made out no case; the receiver of a letter having no such property therein as to enable him to maintain an action for it against the sender, by whatever means it may have got into his hands. Lord Hardwicke, in Pope v. Curl, 2 Atk. 342, lays it down that "at most, the receiver has only a joint property with the writer." And this was acted upon by Lord Apsley, C., in Thompson v. Stanhope, Ambler 737, and by Lord Eldon, in Gee v. Pritchard, 2 Swanst. 402, where it was held that the jurisdiction to restrain the publication of letters is founded on a right of property in the writer. That the receiver has no right to publish their contents without the consent of