to disinherit him, or the will may contain an antecedent CHAP. xxxIII. devise to the heir for life of the testator's property, which is the subject of dispute (d), or the devise in question may be to a class, embracing the heir, as to the testator's children (e), 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 (g); 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. This rule of construction is entirely technical, as, according to popular notions, the gift of any subject simply, comprehends all the interest therein. A conviction that the rule is generally subversive of the actual intention of testators, always induced the Courts to lend a willing ear whenever a plausible pretext for a departure from it could be suggested. Hence have arisen the various cases in which indefinite devises have been, by implication, enlarged to a fee simple, which cases form the next subject of consideration. Grounds for enlarging indefinite devise to a fee. gross sum on II. It has been long settled that where a devisee, whose Charge of a estate is undefined, is directed to pay the testator's debts the devisee. or legacies, or a specific sum in gross, he takes an estate in fee, on the ground that if he took an estate for life only he might be damnified by the determination of his interest (d) Awse v. Melhuish, 1 B. C. C. 519; Right d. Compton v. Compton, 9 East, 267. (e) Dickins v. Marshal, Cro. El. 330. (g) Goodtitle d. Richards v. Ed monds, 7 Durn. & East, 633; Awse CHAP. XXXIII. before reimbursement of his expenditure; and the fact that As to contingent charges. As to devisee being also executor. Express estate for life, or estate tail, not enlarged. actual loss is rendered highly improbable by the disparity in the amount of the sum charged relatively to the value of the land, does not prevent the enlargement of the estate (h). For the same reason the future, or contingent nature of the charge, does not, as sometimes contended, prevent it from enlarging the estate (i). In the cases of Abrams v. Winshup (k) and Doe v. Phillips (1), the charge was contingent in effect, though not in express terms, (being liable, under the general rule (m), to failure in the event of the devisee's dying before majority), and no attempt was made to found a distinction on this circumstance, which indeed seems precluded by the principle that makes the possibility of loss the ground of the enlargement of the estate, as such possibility evidently exists as well where the charge is contingent as where it is absolute. So it is wholly immaterial whether the devisee is directed to pay simply, or to pay out of the land (n). Where a devisee, who is directed to pay the testator's debts, is also appointed executor, the injunction is considered to have relation, not to his duty as executor to discharge the debts, but to his character of devisee of the land, in which, therefore, he takes a fee (0). The rule under consideration, however, is confined to indefinite devises; for where the direction to pay is imposed on a person to whom there is given an express estate for life (p), or an estate tail, (whether limited in express terms, or arising constructively by implication from (h) Moone v. Heaseman, Willes, 440; Doe v. Holmes, 8 Durn. & East, 1; Goodtitle v. Maddern, 4 East, 496. (i) Merson v. Blackmore, 2 Atk. 341; Doe v. Allen, 8 Durn. & East, 497. (k) 3 Russ. 350. (1) 3 Barn. & Adolph. 753. (m) Ante, Vol. I., p. 756. (o) Dolton v. Hewer, 6 Madd. 9; also Doe v. Phillips, 3 Barn. & Adolph. 753. (p) Goodtitle v. Edmonds, 7 Durn. & E. 635; see also Willis v. Lucas, 1 P. W. 474. words introducing the devise over) (4), the charge is in- CHAP. xxxIII. operative to enlarge such estate for life or estate tail, to a fee simple. where the the land mere It is well established too, that the mere imposition of a Noenlargement burthen on the land (without saying by whom it is to be charge is upon borne,) has not the effect of enlarging the estate of any ly. devisee; as where lands are devised to A., after debts and legacies are paid, or subject to, or charged with the payment of debts or legacies, which, in a will that is subject to the old law, confers only an estate for life (7). And though undoubtedly two cases may be adduced (s), in which devises seeming to belong to this class were held to carry the fee, yet one of these cases professedly recognised, while it actually departed from (t) the principle, which distinguishes between charges on the land merely, and charges on the devisee in respect of the land; and in the other case, the Lord Chief Justice (Best,) broadly laid it down that every charge on the land, without distinction, converted an indefinite devise into a gift of the fee; a position which stands directly opposed to the general doctrine of prior cases, and is also irreconcileable with, and must, therefore, be considered as overruled by a more recent adjudication (u). charges. The same principle applies to annual sums charged on As to annual real estate, which, if directed to be paid by the devisee of an undefined estate, will enlarge that estate to a feesimple, whether the will directs the annual sum to be paid by the devisee, without more, or by the devisee, out of the land (a). (q) Denn v. Slater, 5 Durn. & E. 535; Doev. Owens, 1 Barn. & Adolph. 318. (r) Denn v. Moor, 5 Durn. & E. 558; S. C. in Dom. Proc. 1 Bos. & Pull. 247; see also Fairfax v. Heron, Prec. Ch. 67. (s) Doe v. Richards, 3 Durn. & E. 356; Gully v. Bishop of Exeter, (t) But see 1 Cromp. & Mees. 41. (x) Spicer v. Spicer, Cro. Jac. 527; Baddeley v. Leapingwell, 3 Burr. 1533; Jenkins v. Jenkins, CHAP. XXXIII. income exceeding annuity. And it is immaterial that the current income of the As to current property exceeds the annual sum charged, unless such sum ceases with the estate of the devisee, because, leaving out of consideration possible fluctuations in value, the devisee might, notwithstanding such excess, be damnified, if the annuity should happen to endure beyond his life estate. Whether annu ity enlarges es or ceases at his death. Where the annuity and the estate of the devisee are tate of devisee both indefinite, the alternative presented itself either to restrict the annuity to the life of the devisee of the land, or to enlarge the estate of the devisee of the land to a fee; and the latter hypothesis was adopted, as being most consistent with probable intention. Where the devise is to a person expressly for life, he paying an annuity to another also expressly for life, the direction to pay the annuity is inoperative (as we have seen the charge of a gross sum is under similar circumstances) to enlarge the devisee's estate; and, in such case, it seems, that the annuity continues a burthen on the land during the life of the annuitant, even after the determination of the estate of the devisee, who was, in the first instance, made the medium of payment (y). These positions, it will be observed, leave open the question as to the effect of directing a person, who takes an express estate for life, to pay an annuity to another indefinitely. There would seem to be some ground, in such a case, to contend, that the annuity was intended to be co-extensive only with the estate of the person who is directed to pay it, and, consequently, ceased on the death of the payer, being in fact an annuity for the joint lives of himself and the annui Willes, 650; Goodright v. Stocker, 5 v. Chapman, Cro. Car. 157. (y) Willis v. Lucas, 1 P. W. 474. tant; but the writer is not aware of any decision on the CHAP. XXXIII. point. charged on In consistency with the principle which applies, as we As to annuities have seen, to charges of gross sums, the imposition of an land. annuity on any devised lands, in terms which do not make its payment the personal duty of any devisee, leaves the estate created by the will wholly unenlarged and unaffected (z); which doctrine is so well settled, that the difficulty of reconciling every decision (a) does not cast the slightest shade of doubt over the principle. III. The fee-simple is also held to pass by an indefinite devise, where it is succeeded by a gift over, in the event of the devisee dying under the age of twenty-one years; such devise over being considered to denote that the prior devisee is to have the inheritance in the alternative event of his attaining the age in question, since, in any other supposition, the making the ulterior devise dependent on the contingency of the devisee dying under the prescribed age is very capricious if not absurd (b). Enlargement to a fee by the effect of a de vise over. rule. The force of this reasoning is somewhat diminished, Extent of the where the devise over confers an estate for life only; but the rule nevertheless applies to such cases (c), as it also does where the contingency is the dying of the prior devisee under any other age than majority (d); and it is not restrained (as has been sometimes laid down by text writers) to cases in which the prior devise is to the children (z) See Doe v. Clayton, 8 East, 141. (a) See Andrew v. Southouse, 5 Durn. & E. 291. (b) Doe v. Cundall, 9 East, 600; Marshall v. Hill, 2 Mau. & Selw. 608; Doe v. Coleman, 6 Price, 179, overruling Fowler v. Blackwell, 1 (c) See Frogmorton v. Holiday, (d) See Doe v. Coleman, 6 Price, 179. |