86. In the following case additional words were held to be explanatory, and not restrictive of the preceding ones.

1 Black. R.

87. Doctor Paul devised to his wife his farm at Paul. v Paul, Bovington, in the tenure and occupation of J. Smith. 2 Burr: 1089. He devised to her several other estates in the same 255. manner; and concluded by a general devise to her of all his freehold and copyhold lands above devised. The farm at Bovington was copyhold, and was demised to J. Smith, with an exception of the woods and underwoods.

The heir at law brought an ejectment for the woods; and the question was, whether they passed by the will, not being in the tenure and occupation of J. Smith.

Lord Mansfield held, that the words, "in the tenure and occupation of J. Smith," were not words of restriction, but of additional description. Had the Doe v.Parkin, testator meant them as restrictive, he would have 5 Taunt. 321. Marshall v. said—all that part of my farm, or so much of my Hopkins, farm, as is in the tenure, &c. The farm was an entire 15 East, 309, thing. Judgment was given for the devisee.

88. The courts have gone so far, as to determine Words somethat where the words used by a testator are only ap- against their times applied plicable, in their strict technical sense, to a species of technical Meaning. property which the testator has not, they shall be applied, if possible, to some other species of property, which the testator has; in order to effectuate his intention. For in cases of this kind, it is clear the testator has been ignorant of the technical meaning of the words which he used; but as he must have had some intention when he used them, the courts, in order to give effect to that intention, will apply such words to the property to which the testator appears to have intended to apply them.

Inchly v.

Robinson,

89. A person being seised of a fee-farm rent issuing

3 Leon. 165. out of the manor of F., and having no land or manor, devised his manor of F. to J. S. It was held that these words passed the fee-farm rent; for the devisor being seised of that rent, and of nothing else in the manor, it was plain he meant the rent, and could, mean nothing else; so that otherwise the will must have been entirely void.

Day v. Trig, 1 P. Wis.

286.

infra,

General

words confined to Freeholds.

Rose v.
Bartlet,

Cro.Car. 292.

90. A person devised all his freehold houses in Aldersgate Street to the plaintiff and his heirs. The testator had no freehold houses there, but had leasehold houses. It was decreed by Mr. Justice Tracy, that though in a grant of all one's freehold houses, leasehold houses could not pass; and that in the case of a will, had there been any freehold houses to satisfy the will, the leasehold houses should not have passed; yet the plain intention of the testator being to pass some houses, and he having no freehold houses there, the word freehold should rather be rejected, than the will be wholly void, and the leaseholds should pass.

91. Where a testator uses general words, equally applicable to freehold and leasehold property, they have in general been restrained to freeholds, where the testator has both freehold and leasehold property, unless a contrary intention appears; and are only applied to leasehold property where the testator has no freehold property to satisfy them.

92. It was resolved by the Court of King's Bench in 8 Cha. I. "that if a man hath lands in fee, and lands for years, and deviseth all his lands and tenements, the fee simple lands pass only, and not the lease for years. And if a man hath a lease for years and no fee simple, and deviseth all his lands and te

nements, the lease for years passeth; for otherwise the will should be merely void."

Gibbs,

3 P.Wms 26.

93. Lady Boreman being seised in fee of lands in Davis v. Kent, and possessed of a mortgage for years in Essex, and also of an extended interest upon a statute in Bucks, devised all her manors, messuages, lands, tenements, hereditaments, and real estate whatsoever, in Kent, Essex, Bucks, Bedfordshire, or elsewhere in the kingdom of England, of which she was any ways seised or entitled to, unto her nephew. By a latter clause the testatrix gave all the rest, residue, and remainder of her personal estate, plate, gold, &c. and all her mortgages, bonds, specialties, and credits, whatsoever they should consist of, to her nephew and niece.

The question was, whether the chattel interests of the testatrix passed by the first clause in the will. Lord King decreed that they did not; and this decree was affirmed by the House of Lords.

Clement,

94. The doctrine established in the two preceding cases has been in some degree contradicted by the three following cases, in which general words have been applied both to freehold and leasehold property. 95. T. Addis being seised in fee of some lands, Addis v. and possessed of other lands under a lease for twenty- 2 P. Wms. one years, all in the possession of A. B.; and it being 456. very difficult, by reason of long unity of possession, to distinguish the freehold from the leasehold premises; devised all his messuages, lands, and tenements, in the parish of D. which he then stood seised or possessed of, or any ways interested in, and which were in the possession of A. B., unto his wife Jane for her life; remainder to his brother, and the heirs of his body; remainder over.

Lowther v. Cavendish. Amb. 356.

Lord King said, the question was, whether the leasehold passed with the freehold; he owned the limitations were improper, but then the words were very strong;-all the lands which the testator was seised or possessed of, or any ways interested in ; which words, possessed of or interested in, properly referred to a leasehold estate; and distinguished this case from that of Rose v. Bartlet, where the words possessed of, or any ways interested in, were not to be found. And as the lease for twenty-one years was held of the church, and always renewable, the lessee, who was the testator, might look upon himself, from the right he had to renew, as having a perpetual estate therein, a kind of inheritance; therefore the leasehold premises ought to pass by the will. And decreed accordingly.

96. Sir J. Lowther having freehold and leasehold estates in the county of Cumberland, devised in these words: “I give all my manors, lands, tenements, mines of coal and lead, rents and hereditaments whatsoever, in Cumberland, to J. Lowther in tail. And whereas I am owner of several burgage tenures in Cockermouth, it is my will they shall not be entailed, as I have done my other estates in Cumberland; and therefore I devise them to Sir W. Lowther and his heirs."

A question arose, whether the leasehold estates passed by the devise to J. Lowther, or to Sir W. Lowther, the residuary legatee.

Lord Keeper Henley said, it was plain from the clause excepting the burgage tenures, that the testator thought he had entailed these leaseholds upon James Lowther. The word estates in the will was a general term, and comprehended both freehold and leasehold, and was not restrained to either. But it was said that

he having both sorts of estates, by the general words, estates of inheritance only passed, according to the case of Rose v. Bartlet, a single authority, where it was held, that the words lands and tenements related to estates of inheritance only. That resolution might be law in that particular case, though he could see no reason why those words should not include leaseholds too, as they had been held to do where other words were added, as in Addis v. Clement; lands in which he was any ways interested. In the present case there were words inserted which were material to pass leaseholds, as mines, rents; which it would be strange to suppose him to devise, without the lands of which they were the profits, and from whence they flowed. He could never intend to give them in the residuary clause, after he had before specifically devised every estate he had.

Husler,

97. A testator being seised of tithes in fee, and Turner v. having a lease of other tithes for years, perpetually 1 Bro. R.78. renewable, without fine, devised all his lands, tenements, tithes, &c. to the defendant. The plaintiff, being the personal representative of the testator, filed his bill for the leasehold tithes; insisting that the freehold tithes only passed by the will.

Mr. Baron Eyre, sitting for the Chancellor, said the case of Rose v. Bartlett had been often referred to and acknowledged; one could not but respect a case so supported, yet one could not help asking why, by so general an expression, all the lands should not pass. No reason was given in the cases; there was none arising from the favour shewn to an heir at law; for the ordinary or next of kin were not considered in that light. There was none from the general rules of construction. If the words were the same, and the testator had only one interest, that