was not easy to determine in whom the fee vested at any given period: and many inquiries into extrinsic circumstances were necessary in the investigation of titles derived from the will. These will be in a great measure saved.

The 30th section operates to prohibit the construction of a chattel interest by implication from the nature of the trust. The estate itself or the trust must be limited to a term certain; a devise in trust during the minority of a cestui que trust will, it seems, no longer convey a chattel interest (o), nor to pay debts and legacies (p), nor to raise a sum of money (q); but in all these cases the trustees will take the whole fee simple. No implication will arise from the use of words of limitation, as heirs, executors, &c. which, if inconsistent, will be rejected.

The devise being thus construed to pass the fee (unless the estate be limited as above stated), the 31st section carries out the principle by providing that it should continue in the trustee, notwithstanding the trusts having expired. Formerly the courts, in their anxiety to restrict the estate of the trustees to the requirements of the trust, held, that where the latter extended beyond the life of the beneficial devisee, a chattel interest might be superadded to the estate pur autre vie, if consistent with the purposes of the trust (r). So where it was necessary that the fee simple should pass, it might be determined when the trusts were satisfied. In future the mere inspection of the devise will inform a purchaser in whom the legal estate resides.

There seems to be some repugnancy in the words "without any express limitation," as compared with the terms of the preceding section. By that section

Devises of estates tail shall not

lapse.

Gifts to children or

it seems that an estate for years, as well as an estate of freehold, might be raised by implication. Thus a devise to A. in trust, to accumulate the rents and profits for twenty years, and then to the use of B. in fee, would give A. a chattel interest only; while a trust to pay the rents to a feme covert for her separate use for life, with remainder over, would vest in him an estate pur autre vie. But the wording of the 31st section would seem to exclude the former construction. Of course these enactments will not in any way affect a mere naked power to sell, given to a trustee

or executor.

XXXII. And be it further enacted, that where any person to whom any real estate shall be devised for an estate tail or an estate in quasi entail shall die in the lifetime of the testator leaving issue who would be inheritable under such entail, and any such issue shall be living at the time of the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.

XXXIII. And be it further enacted, other issue that where any person being a child or who leave other issue of the testator to whom any issue living at the testa- real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person shall die in the lifetime

tor's death shall not lapse.

of the testator leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.

These enactments effect a very salutary change in the law of devises, by which, in conformity with the Roman law, the devise was void if the devisee was not in being at the time when the will took effect; consequently, if the donee in tail died during the life of the testator, none of his issue could take, and the remainder came at once into possession. The former section extends to all devises; the latter is confined to the children (legitimate) or other issue of the testator, and though in terms it is confined to immediate devisees and legatees, probably it will receive a liberal construction so as to extend the benefit to cestui que trusts.

Leaving issue.]-It seems a child in ventre sa mere will be included (s).

66

Any such issue.--Not merely the issue so left; the words probably refer to a child or other issue" mentioned in the first part of the sentence, so that it will comprise the descendants of those who shall be left.

As if the death of such person had happened immediately after the death of the testator.]-An important inquiry will arise on these words, whether the issue will take as substituted legatees, or devisees, or by representation; in the case of realty, whether by

(s) Doe v. Clark, 2 H. Bl. 399.

Act not to extend to

wills made

nor to es

tates pur

persons who

1838.

descent or purchase. It should seem that they take by representation, and not as if the gift had been made to them, and that the property will not be affected by the will of the devisee or legatee; for the third section, which extends the power of disposition over all " contingent, executory, or other future interests," seems to point only to estates already created, or in being at the time of his death, but which are not and may not become vested in the testator-where the contingency is as to the person who, or the happening of the event upon which he, will be entitled under existing limitations. Hence personal property will go to the executor or administrator of the deceased issue, and be distributable according to the statute, while estates of freehold will descend upon the heir.

XXXIV. And be it further enacted, that this act shall not extend to any will before 1858, made before the first day of January one thousand eight hundred and thirty-eight, autre vie of and that every will re-executed or redie before published, or revived by any codicil, shall for the purposes of this act be deemed to have been made at the time at which the same shall be so reexecuted, republished, or revived; and that this act shall not extend to any estate pur autre vie of any person who shall die before the first day of January one thousand eight hundred and thirtyeight.

The execution of a codicil, referring to the will, operates as a republication of the will, though it be

not so expressed; the testator's acknowledgment of his former will, considered as his last will at the time of making the codicil, is implied from the nature of the instrument itself, and the attestation of the latter becomes therefore an attestation of such acknowledgment (1). The effect was to draw down the language of the will to the date of the codicil, and hence it operated to pass after-acquired property, if the terms of the devise were comprehensive enough to include it.

The operation of a codicil, executed after the 1st January, will be important. It will probably render void the will of an infant; will subject the whole to a revocation by marriage, and relieve it from all presumptive revocations; deprive the heir of lapsed devises, and give them to the residuary devisee; prevent the lapse of others, besides rectifying imperfect executions of powers of appointment, enlarging to a fee a devise which would otherwise have been for life only, cutting down others, and subjecting the most important parts of the will to a construction entirely different from what they would otherwise have received.

It seems also that a will, or a particular disposition which has been revoked by any act or dealing, cannot be set up after that date, by a codicil which does not express an intention to revive the same. (Sec. 22.) But no interlineation or alteration in the body of the instrument will bring it within the act, unless there be a re-execution of the whole will.

A codicil imperfectly executed after the 1st of January, and which cannot therefore operate to bring the will within the statute, will not, it seems, have the effect of rendering it void. As if a codicil attested by one witness only, be added to an unattested will of personalty, which was good at the time.

(1) Pigott v. Waller, 7 Ves. 98.