THE MAYOR OF ተ. HODSDON. [ *84 ] of the COURT below, and not denied at all in that judgment, that it may be so qualified and restricted, as not to have its proper and natural force; if I may so speak, that force which naturally and properly would belong to it, if not so restrained; or that it may be so restrained by matter showing the general intention to be to restrain it, or any words used in collocation; for instance, with the other words, or the particular mode in which it is used by the maker of the instrument. Now it is needless to cite cases upon this, either upon the legal force and effect of the word, if not restrained, or upon the power of circumstances to except it from that general rule, or to restrain its meaning; for it seems to be generally admitted. It must always be kept in view, that nobody here contends, nor does the judgment of the Court below require such contention, that the word "estate" should be here used to mean only real estate. It means both realty and personalty, and the fallacy of the argument for the appellants throughout, appears to me to be this: they say, "How can this mean real estate, when you have the word 'effects,' which only applies to personalty?" The real meaning of the word "estate" is not "real estate," but "real" plus "personal," and so reddendo singula singulis, these words, which are to be restricted words, because they only apply to personal estate as they include future acquisitions, which would not, in the case of lands, pass under such a gift. As the words are not intended to be used as excluding personalty, those words which are added here will apply to the personal part of the estate; and it does not follow on that account, that, because there is personalty whereon they can operate, therefore the realty is to be excluded. Now, I might show by several cases which have been mentioned at the Bar, that that is the law upon the subject. Perhaps the only one which shows it most clearly, is Barnes v. Patch (1), because there the MASTER OF THE ROLLS, commenting on what is laid down by Lord HOLT, in The Countess of Bridgwater v. The Duke of Bolton (2), that the word "estate" is genus generalissimum, and includes all things real and personal, says (3), “I admit, that has been so qualified by the context as to bear a narrower signification; as in Doe v. Buckner; where the words were held insufficient to carry real estate; not as being of themselves insufficient to pass land; but upon the context of the will, personal estate only being (3) 7 R. R. 130 (8 Ves. 607). (1) 7 R. R. 127 (8 Ves. 604). 66 in contemplation of the testator. In Shaw v. Bull (1), Lord Chief Justice TREVOR says, generally the words 'my estate,' 'the residue of my estate,' or 'the overplus of my estate,' may pass an inheritance, where the intent is apparent to pass it." But that is no longer law. The law is not now that the word "estate" will not pass the realty, or realty together with personalty, unless there is an intent so to do it is just the other way; it is that it will pass the realty as well as the personalty, unless there is matter apparent to show that the intent is, that it shall not pass the realty. The report is here very inconveniently loose, for it goes on as if the MASTER OF THE ROLLS was arguing as follows: "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, or may be applied to personal alone, then the heir-at-law is not to be disinherited by the implication of such words, or any implication at all, but what is a necessary one." When I read this first, seeing that it was not in inverted commas, I was astonished; for really, considering this decision was in the year 1803, it looked much more as if it was in the time of the early cases, when the law was not so settled as it is now. I will not say very different, but, at all events, not so settled; but when I came to the next sentence I saw it was a mistake of Mr. Vesey's, in not putting inverted commas; for there should be inverted commas, just as there is in the former part of it (2). This is Chief Justice TREVOR's argument, not Sir WILLIAM GRANT'S. Sir WILLIAM GRANT goes on as follows: "But the doctrine of modern cases is, that, where there is nothing. to qualify the word 'estate it will carry real as well as personal estate, and the contrary intention ought to appear to induce the Court to put upon that word a less extensive signification than it naturally bears." So that he says, you must prove the negative in such a case, not regarding of course anything dehors; but the words themselves proving the intent, the proof must be thrown on the other side, and the intent to restrain must be established by the context the rest of the instrument, otherwise in a will it would pass the realty. Then he quotes Lord HARDWICKE'S observations in the case of Tilley v. Simpson, and Lord MANSFIELD in Hogan v. (1) 12 Mod. 592. (2) Lord BROUGHAM's criticism is not accurately expressed. The mistake in Vesey's report does not consist in using inverted commas in one place and not in another, but in not marking THE MAYOR OF HAMILTON v. HODSDON. [*86] [ *87 ] Jackson (1), who says, "It is now clearly settled, that the words 'all his estate,' will pass everything a man has. But, if the word *all' is coupled with the word 'personal,' or a local description, there the gift will pass only personalty, or the specific estate particularly described." You will find old cases, in which they go so far as to say, that the word "lands" do not pass real estate. There is a case, Pigott v. Penrice (2), which was cited by Mr. Jarman, "On Wills," Vol. I., p. 672 (3), which was with respect to leaseholds. "I make my niece executrix of all my goods, lands, and chattels ; " he having no leaseholds: which did look like an infraction. But, however that might be disposed of now, whether "lands," in either of these cases, would be held to be confined to personalty, is another question. There is a much more recent case than that, Doe d. Gillard v. Gillard (4), which came before the King's Bench; and the devise was this: "I do make, constitute and appoint R. G. my whole and sole executor, of all my lands for ever, and leasehold property, here or at B., or money that shall become due for the same, paying certain annuities thereout, by half-yearly payments:" and it was held, that by this will, the executor took a fee in the freehold lands in the parish of W. So that, properly speaking, the cases of Doe d. Gillard v. Gillard, and Pigott v. Penrice, must be held not to be reconcileable, the one with the other: but that we have nothing to do with; the law is clearly laid down by that learned Judge, whose judgment I have quoted. Now, then, the question really is, upon the facts, whether (for that is the whole issue between the parties) there are words in this residuary gift which limit it, and take it out of the clear rule-out of the simple rule that the word "estate" will pass the whole estate, real as well as personal, unless restricted to the personalty. Now, what do the words say? First, it is taken for granted by all, that we are to look at the testator's vocabulary, and take the words according to the sense he has given them in his own vocabulary. Now, I do not think that the first clause in the will proves he used the word "estate" to mean "personalty." No such thing. "My will is, that all my funeral charges, and just debts, be paid, as soon as convenient after my decease; and if, at that time, I should own any part of a vessel (that is, personalty, no doubt), it is my will and desire, that such part be immediately sold, on the best (1) Cowp. 306. (2) Pre. Ch. 471; 1 Eq. Ca. Ab. 209, c. 13. (3) 5th ed. (1893), p. 684. P. THE MAYOR OF HODSDON. [88] terms that my executors and executrix may think most for the advantage of my estate." That means, "my whole estate," real as HAMILTON well as personal. Part, no doubt, is "personalty," but it goes into the fund designated by the word "estate." He uses the word "estate," there, most accurately, to mean, "all my estate, real and personal." He is there directing the sale of any share he may have of a ship, which is personalty, and which is to go to increase his estate the personal part of it, no doubt. If he had said, "The plantation I have, shall be sold, on the best terms, for the advantage of my estate," it would have gone, not to the personalty, but realty; and nobody could doubt, the word "estate," there, would include realty as well as personalty, although the devise would have been to sell the plantation for the advantage of that estate, realty plus personalty. Then comes this: "I give my wife, Frances Albouy, a desk, one cedar chest, and one mahogany table, that she had from her father's estate;" that is to say, his whole estate, "the fund" which her father left, which consisted of realty as well as personalty, from which she had the cedar chest, and so on, which was part of his personal estate-his estate, *real and personal, but the personal portion of it. Then comes the clause in question, “I give all the remainder of my estate that is now in my possession, or may hereafter be mine, excepting what I have particularly given away." Very well; he has particularly given away part of the personalty; he now is giving away the remainder of the estate, consisting of realty and personalty together. Accordingly, he does not mean to revoke the gift he had made, of part of the personalty, when he is giving away the personalty and realty both. But, he says he is giving all the residue of that estate, which means realty plus personalty (that must always be kept in view); and he excepts from the gift of the residue what he had given away previously, leaving the residue of the personalty and realty to pass. Then it is objected, "that is now in my possession, or may hereafter be mine." Well, that does not operate on the realty, except what is in possession; but it operates on the personalty, "that may hereafter be mine:" and can anything be more consistent with that construction, than that he should say, "I give the residue of my estate, real and personal?" Though he does not say, "real estate," he means it; and the law means it for him: “I give all the remainder of my estate, that is now in my possession, or may hereafter be mine"-as far as the law will allow me to give it-I cannot give the real estate, after acquired, but I may give the THE MAYOR OF HODSDON. [ *89 ] personal estate after acquired. Undoubtedly, the words do not HAMILTON apply to the real part of the estate, but to the personal part of the estate: "and it is my will, that, whatever my estate may consist of, after debts and legacies are paid, that it be kept together under the direction of my wife, Frances Albouy, *for the support of her and all my children, until the youngest child be of the age of eighteen." That is clearly applicable to real estate, as well as personalty, and these words do not, in the slightest degree, tend even towards restraining them: "then my will is, that my estate be equally divided between my said wife and her children." That is equally capable of the construction which the law puts upon it; "but if it please God my wife lives until the limited time, as above mentioned, whatever my estate may be," (genus generalissimum again,)" and her children insist for a settlement, then my will is, that my wife be entitled to one-third part of whatever my personal estate may be." No doubt that means personal estate, but why does it mean personal estate? Not from implication; not from any insufficiency of the word "estate" to mean real estate, but that there is the restriction, the word "personal," which excludes realty, just as the word "real" would exclude personalty. If the word real had been there, without personal, no question could have arisen; but the word is estate, and when he means real and personal estate, he does not add the word personal; but when he means the estate shall be personal only, he adds the word personal, which limits and restrains the sense of it. Their Lordships are, therefore, clearly of opinion, that this case, which has been argued with great learning at the Bar, and very carefully considered by the learned Judge of the Court below, must be affirmed with costs. 1847. Dec. 6, 7, 13. Lord BROUGHAM. [116] ON APPEAL FROM THE PROVINCIAL COURT OF APPEALS FOR THE LOGAN v. LE MESURIER AND OTHERS (1). (6 Moore, P. C. 116–136; S. C. 11 Jur. 1091.) Messrs. H. L. & Co., of Montreal, entered into a written contract with Messrs. L. & Co., for the sale of a quantity of red pine timber, then lying above the rapids, Ottawa River, stated to consist of 1,391 pieces, measuring 50,000 feet, more or less, to be deliverable at a certain boom at Quebec, on or before the 15th of June, then next, and to be paid for by the purchasers' (1) Present: Lord BROUGHAM, Lord LANGDALE, Lord CAMPBELL, the Right Hon. Dr. LUSHINGTON, and the Right |