itself, as of his whole interest in it. So have been all the latter determinations, upon the reason that men are inopes consilii when making their wills, which was the case here; for this will, if not made by the testator himself, was certainly made by some very unskilful person. However his intention appears to dispose of his whole estate among his children. In all the modern cases where the word estate is used, it has been held to pass a fee, unless there be some words used to restrain that generality; for estate is genus generalissimum, as held by Lord Ch. J. Holt in the case of Bridgewater v. Bolton. It was objected that there should have been the word my, but the want of it makes no difference, for the words, all the estate I bought of Mead, are fully sufficient to carry as well the whole interest, as the thing itself. It was next objected, that where the testator gives but a life-estate to his wife, he has used the very same words; but no argument can thence be drawn, that where he has not expressly given an estate for life, he did not mean to give a fee, but it rather turns the other. way... He apprehended those words might give a fee, and has therefore restrained them, in his wife's case, to an estate for life, but adds no restraint where he meant to give them their full scope. But what weighs most in all those cases is, that the testator is making a division of his whole substance amongst his children, and as I said before, presumed to be inops consilii, and his intent therefore shall be carried into execution. This case is stronger than that of Ibbotson v. Beckwith, whence arises another ante, § 23. answer to the objection of his having used the word estate, as well where he makes a devise to his wife for life only, as in that in question; and shall therefore not be presumed to intend different interests, Holdfast v. 1 Term R. 411. Chichester, v. viz. the incorrectness of the will. This was given as an answer by Lord Talbot, and is equally so upon this will, which is also a very incorrect one." 31. A person being seised in fee of a house and land at Braywick, in the county of Berks, devised the same in the words following:-"I give and Chichester, bequeath to Mrs. Martin my estate at Braywick, 4 Taunt. 176. Berks." It was contended that these words did not pass a fee, for want of the word all; but the Court held that the devisee took an estate in fee. Chorlton v. Taylor, 160. Smith v. 2 H. Black. 444. All my real Nichols v. 18 Ves. 193. The words Right, Title, 32. The words testamentary estate will also pass a fee simple, where there is an introductory clause indicating an intention to dispose of all the testator's property. 33. Where the word estate is used only for the purpose of describing the local situation of the lands devised, it will not have the effect of passing an estate in fee; as will be shown in a subsequent chapter. 34. The words "all my real property" will carry fee simple. A copyholder devised his estate in these words: "I do will and bequeath all my real and personal property to my wife." Sir W. Grant said, that in the absence of direct authorities upon the subject, he thought the testator must be considered to have intended to pass his whole interest, as he did not see how a man could be said to give all his property, unless all his interest in it passed. It seemed in many cases that the Judges had explained the meaning of the word estate, by saying that it imported the absolute property. 35. A devise of all a person's right, title, and inand Interest. terest, will pass a fee. As where a woman, being tenant for life of a house, remainder in tail to her Cole v. Rawlinson, 3 Bro. Parl. son, with the reversion in fee in herself, devised all her right, title, and interest in the house to her son. It was resolved, that these words passed the reversion to the son in fee. 36. A person devised all his part, share, and interest Andrew v. Southouse, of and in the estates of T. C. unto his sister for life; 5 Term R. and from and after her decease he gave the same to 292. J. S. Lord Kenyon held that these words passed an estate in fee; and said there was no doubt but that the word interest would pass a fee. and Residue 37. The words, all the rest, and residue of my real All the Rest and personal estate, will in most cases be deemed of my Estate. sufficient, to pass an estate in fee simple. Wise, 264. 2 Vern. 690. Wise, A devised 50%. to his heir at law, and then gave Murray v, all the rest and residue of his real and personal estate Prec. in Cha. to his wife. It was decreed, that the wife took an estate in fee simple, in the real estate of the testator. 38. A will was made thus :-"As to all my tem- Tanner v. poral estate with which it has pleased God to bless 3 P. Wms. me, I dispose of the same as follows." Then there 295. were several bequests, and then came these words: "And all the rest of my estate, goods, and chattels Cliffe v. whatsoever, real and personal, I give to my beloved 2 Ld. Raym. wife." Adjudged, that the words in this will were 1324. the same as if the testator had said, "I devise the rest and residue of my temporal estate;" which therefore passed a fee simple. Gibbons, 39. In the case of Shaw v. Bull, Lord Ch. J. Trevor 12 Mod. 596. said, "In the construction of wills generally, the words, my estate, the residue of my estate, or the overplus of my estate, may well pass an inheritance, where the intent is apparent to pass it. But such intent to carry an inheritance by such words must be very apparent, and necessary to be drawn from the words of the will, and circumstances of the case; for if the words be indifferent to real and personal estate, Ridart v. Pain. MS. Rep. 1 Ves. 10. 3 Atk. 486. or may be applied to personal alone, there the heir at law is not to be disinherited by the implication of such words, or by any implication at all, but what is a necessary one." 40. A testator, taking notice of a jointure he had made, of one moiety of an estate, upon his wife, gave her the other moiety for life, for her better support and maintenance; and also gave her a house and a parcel of land for her life; then he gave several other estates to his relations for life, remainder in tail, remainder in fee; and then devised in the following words: "All the rest, residue, and remainder of my goods and chattels, and personal estate, together with my real estate not herein-before devised, bequeathed, or disposed of, I give, devise, and bequeath to my wife." The testator had an advowson and wharf which were not devised at all; and the question was, whether the fee of the advowson and wharf, and the reversion of the particular estate expressly given to the wife for her life, passed to her, by the residuary clause. Lord Hardwicke.-" The estates not mentioned in the will clearly pass by the residuary devise, the word estate importing a fee, and therefore the fee of those estates is well devised by the residuary clause. As to the parcels devised to the wife for life, I am also of opinion, that the fee of the reversion passes by the residuary clause; and that the fee of the estates particularly given before by the same will passes by these words, appears from Allen, 28; 2 Vent. 285; and 3 Mod. 228. The only question then is, whether there be any particular circumstances to take this case out of the general rule; and two things have been insisted on, viz. the recital in the devise of the moiety, that the testator intended no more than a provision for life; but plainly that was not his intent, for he has given his wife his personal estate, not for life, but absolutely; and it is as clear that the real estate not particularly taken notice of, passes likewise to her in fee. It is therefore inferring too much from this recital, that he meant to give her nothing but for life, since he might as well intend to give her the absolute property, for her better maintenance. The second thing insisted on is, that here are particular devises of some estates to the wife, and that the residuary devise being to the same person, it would be inconsistent to make the testator give her the same estate, first for life, then absolutely; the general run of authorities being, where the devisee for life and the residuary devisee are not the same, but different persons. But I think this will not avail: it is too much to say, that where a limited interest is given in one part of the will, and a general one in another, that the devisee must be confined to the particular interest; though I will not say how it would be if absolute negative words were used: as, for life only. The law supposes that a man may vary his intent, even while he is writing his will, which frequently happens. But there is a particular argument furnished from this will, in support of this construction, for here are remainders limited over in fee of other estates given by the will, which shows that where the inheritance was meant to be absolutely disposed of, from the wife, it is done so by the will; and that what the testator intended to give his heirs, is taken by way of exception out of the inheritance." Grayson v. 41. A person began his will thus: "As to all my temporal estate wherewith it hath pleased God to 1Wils.R.333. bless me, I give and devise the same as follows." Then he gave several legacies to A. and directed him to sell all or any part of his real and personal estate, VOL. VI. T |