Doe v. 9 East, 400. Toovey v. of age; and unless he lived to be of age, when he might dispose of it, she meant it should go to her daughters. 74. A person devised to the two children of his brother, when they attained the age of twenty-one years; but if either of them should die under the said age of twenty-one years, then the survivor should be heir to the other. It was resolved, on the authority of the preceding case, that the devisees took estates in fee. 75. Upon a case sent from the Rolls for the opinion 10 East, 460. of the Court of King's Bench, the facts were :-a person devised to certain of her grandchildren, as tenants in common; but in case of the death of either of them, under age, and without leaving any issue, the share of the person so dying to go to the survivor. It was certified that the grandchildren took a fee. Devise to Trustees for purposes re quiring a Fee. Fitzg. R. 10. Gibson v. ] Ves. 485. 76. Where lands are devised to trustees, for the purpose of performing any trusts which require a fee, an estate in fee will pass to them, without any words of limitation: for there is no difference between a devise to a man in fee, and a devise to a man upon trusts which require an estate in fee. 77. A person gave all and singular his freehold, leasehold, copyhold, and also his personal estate, of what kind soever, to trustees and their executors, administrators, and assigns, in trust to and for several uses, to pay several annuities, sums, and legacies, by and out of the produce of the personal estate; if that should happen to be deficient, then to pay the same by and out of the rents, issues, and profits arising by the real estate. One of the questions in this case was, whether the trustees took an estate in fee under the devise. Lord Hardwicke was of opinion, that the inheritance passed to the trustees, and said it had often been determined, that in a devise to trustees, it was not necessary the word heirs should be inserted, to carry the fee at law; for if the purposes of the trust could not be satisfied without having a fee, courts of law would so construe it; as in Shaw v. Weigh, and Fitzg. R. 7. several other cases. Here were purposes to be answered which by possibility, and that was sufficient, could not be answered without the trustees having a fee, viz. the paying of several annuities and large pecuniary legacies, if the personal estate was deficient, which would probably be the case; then how was the rest to be raised, barely by the rents and profits; it must be so, if it was a chattel interest, for then it could not be taken out of the estate by anticipation; but that could not be in this case, for if the pecuniary legacies were not paid out of the personal, the real must be sold to satisfy them; for several of them were to be paid within a year after the testator's death, and could not therefore be paid by annual perception. This then was a purpose which it was impossible to serve, unless the trustees had the inheritance; for if they were to sell a fee, they must have a fee. 78. G. B. devised several sums of 31. a year, some for life, and some in fee; and added, that these legacies were to be faithfully paid by his trustee J. C. every year. He also left to his trustee and executor 51. to build a tomb for him, he and his heirs always to see that it was kept in order, and appointed the said J. C. his sole executor and trustee. The Court was of opinion, that all the estate of the testator passed to the trustee in fee; because the intention was clear, that he meant to devise his real estate in Oates v. Burr. 1684. Cook, Tit. 16. c. 8. § 10. trust; and there were trusts to be executed, which the trustee could not effectuate, without having an estate in fee devised to him; for there were annuities in fee charged on the real estate, and the estate must be co-extensive with the charges. 79. In commenting on the case of Vick v. Edwards, Mr. Fearne observes, that the first words alone would, Fearne Rem. 6th edit. 357. from the nature of the trust, have carried the fee to the trustees. The latter words did not give it from them; which indeed would have been an express negative upon the constructive operation of the first. But their effect was included in that of a devise to the trustees and their heirs, inasmuch as they expressly direct the fee to the same person as such a complete limitation would ultimately carry it to, viz. the survivor of the trustees. What words pass the wholeInterest in a Chattel. Fenton v. Tit. 8. c. 2. § 26. 80. In the case of chattels real, that is, long terms for years, a general devise of them will pass all the estate and interest of the devisor, without any words of limitation. 81. The termor of a messuage for forty years, devised the messuage by his will, without any words of limitation. It was resolved that the entire term passed, for the devisee could not have any estate in the house, at will, or for term of life, or for the term of any years, or a year, therefore the whole term passed. 82. A disposition of a term for years to a person and the heirs of his body, is a disposal of the entire interest in the term; for a term cannot be entailed. But a devise over of a term, after a prior disposition of it to a person for life, is good by way of executory devise; of which an account will be given in a subsequent chapter. Dev. 278. 83. It is said by Lord Parker, that a devise of a 1 P. Wms. term to one for a day, or an hour, is a devise of the 666. whole term, if the limitation over is void, and it appear at the same time that the whole is intended to be disposed of from the executors. But if such Fearne's Ex. an intention does not appear; then it has been held that a limitation of a term to one for life, does not vest the whole so absolutely in him, as to be at his disposal; but leaves a possibility, viz. upon the death of the devisee within the term, of reverter in the executors of the testator. Faulkland, 84. A. being possessed of a term for 99 years, Eyres v. devised it to B. for life, remainder to C. for life, and 1 Salk. 278. so on to five others, successively for life. It was resolved, that after the death of the seven persons to whom the term was devised for life, it should revert to the executors of the testator. 1. No TechnicalWords necessary. 32. An Estate Tail may arise by 7. The word Heirs qualified by subsequent words. 20. Or by a Remainder over to a 27. The words Issue, Children, &c. Implication. 37. A Devise generally may be enlarged into an Estate Tail. 46. A Devise for Life may be enlarged into an Estate Tail. No Technical sary. 1 Inst. 9 b. 1 Vent. 228. Cro. Eliz. 314. Tit. 32. c. 21. 821. AS SECTION 1. S lands may be devised in fee, without any of those technical words which are required in deeds; so may they be devised in tail. And therefore a devise to a person, et semini suo, or to a man and his wife, et hæredi de corpore, et uni hæredi tantum, gives an estate tail. 2. It was agreed by the Judges of the Court of K. B. in 36 Eliz., that a devise to one and the heir of his body, was an estate tail, and should go to all the heirs of his body; for heir was nomen collectivum, and one can have but one heir at one time; and this should go from heir to heir. 3. It has been stated that a limitation in a deed to a person and his heirs male, creates an estate in But in a will those words will create an estate fee. tail. |