Moor v. Raisbeck. refered to, the sale and conveyance of the houses to Plews, would have been an entire revocation of the will so far as it relates to those houses: but the 23d section has abrogated the old rule of law, that a change of interest in the property devised operates as a revocation. The doctrine of revocation implies that there is something which, but for the act which is said to be an act of revocation, the words of the will would pass; and by using the word in this case, it seems to be admitted that, but for some such act, there is such an interest as the devise in question would operate upon. The act relied on, is the conveyance and change of interest. But the 23d section of the Act of Parliament enacts that no conveyance of property made subsequently to the execution of a will, shall prevent the operation of the will with respect to such interest in the property as the testator shall have power to dispose of, by will, at his death: and, by the third section, testators are enabled to dispose of all property which they shall be entitled to, either at law or in equity, at the time of their deaths. Now if the conveyance to Plews was not a revocation, (as, under the 23 section, it certainly was not,) what other act was done, in this case, which was a revocation? The Act of Parliament defines, expressly, what acts shall revoke a will. They are marriage, an express revocation by some wri ting duly executed as a *will, burning, tearing or other [*133] wise destroying the will by the testator, or by some person in his presence and by his direction, with the intention of revoking the same; (a) but none of those acts was done in this case. Again, the 24th section declares that every will shall be construed, with reference to the real estate and the personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. Consequently, the devise now under consideration must be construed as if the testatrix had given, to her trustees, all the interest in the houses at Stockton, which she might have or be entitled to at the time of her death, unless there is some intention, apparent on the will, sk dẹ at a 14 p (a) See sects. 18 and 20. el 25 Iky VOL. XIL 8 Moor v. Raisbeck. which is repugnant to that construction: which there is not. So far from it, that construction will best effectuate the testatrix's intention in favor of her deceased husband's relations, which is strongly marked in the will. There is nothing inconsistent with that intention in her having anticipated the act which she had directed to be done by her trustees, that is, the sale of the property. In Wall v. Bright(a) a general devise in trust to sell, was held to carry an estate which the testator had sold, and for which he had received part of the purchase money, but had not executed any conveyance of the estate to the purchaser. The only question in this case that can be argued for a moment, is whether the words of the devise, taking them to be spoken at the testatrix's death, describe the interest which she then had in the houses, sufficiently to pass it. Can there be any doubt, if she had never had any other interest in the [*134] houses, and *had no other houses at Stockton, that the words of the devise would have passed it; or that they would have passed it, if the will had been made subsequently to the conveyance to Plews? In Clark v. Abbot, (b) a mortgagee in fee of an inn at Chelsea, devised all his freehold messuages and garden grounds in Chelsea: and the question was whether the mortgaged interest would pass by that description. It was held, by Lord Hardwicke, that it certainly would pass; as it did not appear that the testator had any other land there, ut res magis valeat quam pereat. That, like this, was a case of an equitable not a legal interest. In order to give effect to the part of the will on which I am now commenting, that construction must have been adopted, in the present state of the law, even though the testatrix had not been interested at all in these houses at the date of her will, but had afterwards become interested in them, or if the interest which she had at the date of her will, had ceased entirely, and, at a later period, she had acquired a new interest by means of this equitable mortgage. A fortiori must that construction be adopted where her interest has been continuous. It (a) 1 Jac. & Walk. 494. (b) 2 Eq. Ab. 606, pl 41. Moor v. Raisbeck. is laid down, by Mr. Hayes, in his observations on the new will act:(a) "that a devise or bequest of a specific subject of property, will pass whatever interest in that subject may be disposable by the testator at his death; and the gift will, consequently, be operative notwithstanding an absolute sale of the subject, provided any interest in the same subject, although a new and even a different interest, be disposable by the testator at his death: and a devise or bequest of a specific subject of property, or of a specific interest in property, will even pass, (without reexecution or republication,) whatever subject or in. [*135] terest, disposable by the testator at his death, may then happen to answer the description; and the gift will, consequently, be operative, notwithstanding an absolute sale of that subject or interest, provided some subject or interest to which the language of the description is pertinent, be disposable, by the testator, at his death." Sir E. Sugden lays down the very point which I am contending for. He says:(b) "In a case like that of Arnald v. Arnald, (c) where a testator devises his estate to trustees to sell and pay the money to certain legatees, and afterwards sells the estate himself, which we have seen, under the old law, was an ademption, the distinction would now seem to be this, that, if the money has not been received by the testator, it will pass to the legatees; because, notwithstanding the act done by the testator, namely, the sale, the will is still to operate on the estate or interest in the estate which the testator has power to dispose of by will at his death; and he has power, at that time, to dispose by will of the purchase-money, and has a lien on the estate for it, which he can also dispose of, and the case of the lega tees is rather strengthened than weakened by the 24th section. But, if the testator has received the money, the ademption appears to be beyond the reach of the statute: the testator has no longer any interest in the property given by his will, although his general personal estate is increased by the sale, and the case does not seem to be aided by the 24th section." (a) See Introduct. to Conveyancing, 5th edit. vol. 1, p. 390. Moor v. Raisbeck. Next I have to submit that, under the circumstances [*136] of this case, the grandchildren of Mrs. Taylor are *entitled to the benefit of the trust expressed in favor of the children of that lady. I admit that, prima facie, the word, "children," can not be held to include any issue except legitimate children. But this construction may be displaced by showing a different intention, either on the face of the will, or by evidence, which places the court in the position of the testator, and enables it to decide according to the sense in which the testator must have used the word. The principle is, in every case, to give effect to the intention; assigning to the words their strict, legal signification wherever they will bear it; and, where they will not, constru ing them in that sense in which the testator must, of necessity, have used them himself. That principle was recognized in Lett v. Randall.(a) In all cases where an entire class is described, and there are any of that class who can take, they take exclusively. But where, in order to give any effect at all to the bequest, it is necessary to give a more extensive sense to the words of the will, the court will deviate from their strict meaning, and put that more extensive construction upon them. Radcliffe v. Buckley, (b) Slade v. Fooks, (c) Lord Woodhouselee v. Dalrymple,(d) Gill v. Shelley.(e) In Wild's case, (f) the word "children" was con strued to mean "issue;" and, in a case in 8 Vin. Ab. 310, pl. 9, a grandson was held to be entitled under the description of "son." The cases of Gale v. Bennett, (g) Royle v. Ham[*137] ilton, (h) Reeves v. Brymer,(i) and Crooke *v. Brookeing,(k) recognize the principle upon which, as I submit, this case ought to be decided. Mr. Cory appeared for the children of the plaintiffs: and Moor v. Raisbeck. Mr. Wilson, for the trustees and executors of the will. Mr. Faber, in reply, said that the testatrix, in disposing of the houses at Stockton, spoke of them as being property which was in her own ownership: that, construing the will according to the directions of the Act of Parliament, that is, to speak and take effect as if it had been executed immediately before the testatrix's death, the expression, "money upon securities," which the testatrix had used in her will, would apply, most aptly, to the 350%, and the words: "all such real estates as, at the time of my decease, shall be vested in me by way of mortgage," would include the interest which the testatrix had in the houses at the time of her death. (a) THE VICE-CHANCELLOR :-I do not find any thing, in this will, which makes it necessary for me to construe the word "children," as meaning any other individuals than those who strictly bore the character of children. It is plain that, in several instances, the testatrix has used that word in its proper sense: and, therefore, I am not at liberty to put a different construction upon it in that part of the will where the children of Mrs. Taylor are spoken of. *Next: with respect to the houses at Stockton. The [*138] testatrix has devised them to the trustees, in trust to sell the same as soon as conveniently might be after her decease; and has directed the trustees to stand possessed of the proceeds upon certain trusts for the benefit of the children of Mrs. Stonehouse and Mrs. Taylor, who should be living at her decease, and also for the benefit of Thomas Peacock, and of his children living at the same time. The testatrix sold the houses after the date of her will, and conveyed them to the purchaser. But the purchaser being unable to pay 3501., part of the purchase-money, the testatrix consented to accept a deposit of the title-deeds of the houses, as a security for the money remaining unpaid. And (a) The question whether one third of the 1,300% was undisposed of, seems not to have been argued. |