Operation of a General Devise of Land. SECT. 26. general Devise of Lands upon Copyhold, and 2 Sharman's 71 a When it was necessary to the legal operation Operation of of a devise of copyholds, that they should have been surrendered to the use of a will, the rule Customary was, that copyholds, not so surrendered, would not pass under a general devise of land, unless Estates. the devisor had no freehold land upon which it Powell on Devises, chap. 7. might operate; in which case the copyholds were held to pass, ut res magis valeat quam pereat : and then equity supplied the surrender in favour of certain objects, but not universally. But after the 55 Geo. 3, c. 192, had dispensed with the necessity of surrenders to the use of wills, an opinion arose in the profession that a general devise operated indifferently upon freeholds and copyholds; and this opinion was judicially confirmed by Lord Eldon, with the assistance of the two Chief Justices, in White v. Vitty, 2 Russ. 484 and 4 Russ. 584. But the Vide supra, statute of 55 Geo. 3, c. 192, was by no means of p. 33. universal operation, and, therefore, it is probable that many cases would, in course of time, be excepted from the rule laid down in White v. Vitty; and hence the expediency of the present provision that customary and copyhold estates shall pass by a devise pari passu with freehold estates, under words of general import. With respect to the operation of a general 2 Sharman's devise upon leaseholds, Rose v. Bartlett was the Powell on Devises, p. 8; Cro leading authority, that "where a man held lands Car. 293. 72 SECT. 26. Upon Estates over which the Operation of a General Devise of Land. in fee and lands for years, and devised all his lands and tenements, the fee simple lands passed only, and not the leases for years; but if he had no fee simple, the leases for years passed." The former proposition was much controverted in a series of cases, but finally established on firm authority. But as it was often denounced as subversive of the intention of testators, the legislature has now come to the assistance of the judges and overruled the doctrine, by declaring that a general devise shall include the testator's leasehold as well as freehold estates, unless a contrary intention shall appear by the will. SECT. 27. This section provides that a general devise or bequest of all the testator's real and personal estate shall be held to include property over of Appointment. which he has a general power of appointment. Testator has a general Power 1 Jac. & W. 357; Walker v. Mackie, 4 If no reference was made to the power, the only cases in which it was held to be executed under the general words of a will, were, either where the words could not be satisfied without its operating as an appointment, or where there was some description of or allusion to the property which was the subject of the power, or, in the case of personal estate, very clear internal evidence of the intention: but the Court would not Russ. 76; Nan- inquire into the circumstances of the property nock v. Horton, where the will had no reference to the 7 Ves. 391. the subject of it. power or Thus where a testator having a power of ap SECT. 27. lyn, 1 Turn. & pointment over certain freehold and copyhold Lewis v. Lewelestates, and being also seised of other freehold R. 104. estates, devised all his freehold and copyhold estates without reference to the power, this was held an execution of the power as to the copyhold estates, but not as to the freehold estates, which were subject to the power. This doctrine had been established by a series of prior cases, to which it is unnecessary to refer. Knight, 3 Sim. Again, as to personal estates, in a late case Lovell v. where a married woman, having a power to ap- 275. point leaseholds and stock by her will, which was executed and attested as required by the power, but did not refer to it, gave to her husband the whole of her property, both real and personal, and whatsoever she might possess at her decease; this was held not to be an execution of the power in conformity with the prior cases of Jones v. Curry, 1 Swanst. 66; Webb v. Honnor, 1 Jac. & W. 352, and many others. These cases are sufficient to illustrate the doctrine to which they refer, and to show the expediency of an alteration; though there have been a great many other decisions upon the subject, by most of which it is probable that the real intention of the testator was sacrificed to the rule of construction which had been adopted by the Courts. The present section seems to be sufficient to prevent such disappointment of intention for the future. E Devise without Words of Limitation. SECT. 28. Because the words “lands and tenements" do not of themselves designate the quantity of estate or interest for which they are held, and in common parlance, when a man speaks of his house, or of his lands, as property which he has a right to dispose of, he means his whole right to it; it often happens, that a man, making his will without competent legal advice, gives his house, or his lands, at such a place to such a person, without adding any word of limitation or inheritance. To common understandings, and out of the Courts, his meaning is clear and obvious, to give all his interest in the house, or in the lands, to his devisee. But till the passing of this act, the established rules of construction intervened to thwart the plain intention of the testator, and if there were no other words in the will to help that plain intention, the devisee took only an estate for life. Although this construction of words against their intended meaning originated, without doubt, in the old rules against disinheriting an heir, except by plain words or necessary implication, yet it was upheld even where the testator, by the same instrument, showed his wish and intention to disinherit his heir-at-law, by giving him a legacy of one shilling or a few shillings, agreeable to the vulgar notion, taken from the Roman law, that an heir is cut off with a shilling. In Right v. Sidebotham, Lord Mans field said, "I verily believe, that, almost in 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, &c. I have no doubt but the testator's intention here was to disinherit his heir at law, as well as in the case of Denn v. Gaskin." The object of the legislature was to negative this established rule of law, without however enacting any positive rule which might in its turn disappoint the testator's intention. This is saved by the words "unless a contrary intention shall appear by the will." SECT. 28. SECT. 29. Powell on De Few questions of construction have involved Words importing Failure of Issue. more frequent discussion, than that which arose upon words importing a failure of issue, whether Sharman's they referred to issue indefinitely, or issue living vises, ii. 564. at the death. Upon this question depended their Lord Langdale's operation to confer an estate tail, which is created speech in the House of Lords, necessarily by the former construction. 23 Feb. 1837. For example, suppose a devise of real or personal estate to A., with a limitation over, if he die without issue, or, if he have no issue, or, if he die before he has any issue, or, for want, or, in default of issue. Of the meaning and intention of the testator, there could be little doubt. No one |