ments."

hereditaments (i) to be equivalent; but it is now esta- CHAP. XXXIII.
blished that a devise of hereditaments carries only an "Heredita-
estate for life (k). A devise of "all my copyhold in the
said hamlet of H.," has received a similar construction (7).
It has been held, that a remainder in fee will pass by "Remainder.”
the word remainder. Thus, in the early case of Norton v.

Ludd (m), A. having the remainder in fee, subject to a life
estate in his mother, devised the lands to his sister for
life after the decease of his mother, then he gave to J. C.
the whole remainder of all those lands he had devised to
his sister, if he should survive his sister; but if he died
before his sister, then his will was, that the whole
remainder and reversion of all the said lands should be to
the use of his sisters and their heirs for ever.
It was
contended, that J. C. took only an estate for life, for that
these words referred merely to the remainder of the lands,
and not of the interest; but the Court said that could not
be, as the whole of the lands had been before devised.
It referred to the residue of the estate undisposed of to
his sister, and, consequently, a fee passed to J. C.

So, in the case of Bailis v. Gale (n), a reversion in fee was held to pass under a devise of the "reversion" of certain tenements. But in the anterior case of Peiton v. Banks (0), (which was not cited in Bailis v. Gale,) where a man devised lands to his wife for life, and, as to the said lands, he gave the reversion to A. and B., to be

"inheritance" is merely to identify the lands. As to the expression "trustees of inheritance," see post, next chapter.

(i) Smith v. Tindall, 11 Mod. 103. See also Lydcott v. Willows, 3 Mod. 229.

(k) Hopewell v. Ackland, 1 Salk. 239; Canning v. Canning, Moseley, 240; Denn d. Mellor v. Moor, 5

Durn. & E. 558; 8 Id. 175; 1 Bos.
& Pul. 558, S. C.; Doe d. Small v.
Allen, 8 Durn. & E. 503.

(1) Doe d. Winder v. Lawes, 7
Adol. & Ell. 195.

(m) 1 Lut. 755.
(n) 2 Ves. sen. 48.
And. 284.

(0) 1 Vern. 45.

But see

"Reversion."'

CHAP. XXXIII. equally divided betwixt them; it was held, that A. and

Remark on
Peiton v.
Banks, and
Bailis v. Gale.

"Right and title."

"Interest."

"Part," "share."

B. were tenants in common for life only; and Serjeant Maynard, at the bar, said he remembered a stronger case, in which a man having given lands to his wife for life, devised the reversion to A. and B., A. being his heir at law; yet it was adjudged that B. took an estate for life only.

The only distinction between these cases and Bailis v. Gale, is, that, in the latter, the testator's estate consisted of a reversion, whereas in the two cases just stated the subject to which the word "reversion" was applied, was the interest remaining undevised, after the limitations created by the will. This circumstance, however, seems not to vary the principle, and it is probable that the word reversion would now be held, on the authority of Bailis v. Gale, to pass a fee, even in cases of the latter class.

But though the words remainder and reversion, applied to property of this description, will pass the testator's entire interest therein, yet it is clear that the terms residue and remainder, as ordinarily used in residuary clauses, will not have such effect.

It has been held, that a devise of freehold lands, with all right and title to the same, carries the fee (p); and the word "interest" would unquestionably have the same effect (g). Whether the word part or share is to be deemed inclusive of the testator's interest, seems to be vexata quæstio. In Bebb v. Penoyre (r), A. and B. being seised in fee of an estate in undivided moieties, A. devised to B. his half part. As B. was the testator's heir at law, it was not necessary to determine the quantum of his estate under the devise; but Lord Ellenborough thought

(p) Sharp v. Sharp, 4 Moore & Pay. 445.

(9) Andrew v. Southouse, 5 Durn. & E. 292.

(r) 11 East, 160.

that the words were sufficient to carry a fee, and inti- CHAP. xxxiii. mated his dissent from the case of Pettiwood v. Cooke (s). His Lordship, however, as elsewhere noticed in regard to another learned Judge (t), misconceived this case; the original devise giving an estate tail, and not the feesimple, as was represented at the bar. The case of Middleton v. Swaine (u) was more immediately in point, but was said to be distinguishable, inasmuch as the word "share" referred to the corpus of the subject, which consisted of New River shares. In the subsequent case of Paris v. Miller (x), a testatrix devised as follows:"I devise and bequeath my share of the Bastile, and other estates, situate at C., and now in the occupation of Mr. T., &c., to my sister W.;" and W. was held to take the fee; Lord Ellenborough observing, that the words "my share" were used as denoting the interest; those which follow, the thing devised, and its locality; and the latter words, which described the occupation, related to the last antecedent, namely, the estates, and not to the word "share."

Word "share"

held to pass the

fee, but with

aid from con

text.

Paris v. Miller.

But if the word "share" be capable proprio vigore of Remark on carrying the fee, as being descriptive of the testator's interest, there seems to be no reason why it should be restrained by words of locality, or other expressions applicable to the corpus of the land, seeing that the word "estate" (y) is not neutralised by such an association. Although, however, in the case of Paris v. Miller, the Court appears to have thought that the word "share" would pass the fee, yet it cannot safely be considered as an authority for this position, for, independently of such

(8) Cro. El. 52.

(t) See Moone v. Heaseman, Willes, 143; and remark 2 Jarm. Pow. 403, n. See also Woodward v. Glasbrook,

2 Vern. 388.

(u) Skinn. 339.
(x) 5 Mau. & S. 408.
(y) Vide ante, 181.

VOL. II.

0

CHAP. XXXIII.

reasoning, there was strong ground to contend that the devisee took the inheritance by force of the word "estates."

Effect of recent enactment

s. 28).

V. Perhaps there was no one of the old rules of tes(1 Vict. c. 26, tamentary construction which so directly clashed with popular views, as that which required words of limitation, or some equivalent expression, to pass the inheritance; and hence the attention of the framer of the recent act of 1 Vict., c. 26, was naturally directed to the abolition of this technical doctrine. Accordingly, by A devise with section 28, it is enacted, "That where any real estate shall be devised to any person without any words of limitation, such devise shall be construed to pass the feesimple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will."

out words of

limitation, to pass the fee.

Remarks on

new rule.

The effect of the enactment, it will be observed, is not wholly to preclude, with respect to wills made or republished since the year 1837, the question, whether an estate in fee will pass without words of limitation, but merely to reverse the rule. Formerly, nothing more than an estate for life would pass by an indefinite devise, unless a contrary intention could be gathered from the context. Now an estate in fee will pass by such a devise, "unless a contrary intention shall appear by the will." The onus probandi (so to speak) will, under the new law, lie on those who contend for the restricted construction; but as that construction rarely accords with the actual intention of a testator, it will, probably, not often occur, that the Courts will be called on to apply the proviso, which saves the effect of a

restrictive context; so that there seems no reason to CHAP. XXXIII. apprehend that the newly enacted rule will be so prolific of qualifications and exceptions as that doctrine which it has superseded. Upon the whole, the enlargement of the operation of an indefinite devise, may be regarded as one of the most salutary of the new canons of interpretation which have emanated from the legislature.