to the present case. The consequence of the construction put on this will by the Court below would be, that if the eldest son of George Byng died in the lifetime of the testator, the testator should be held to have died intestate, except as to the prior life-estates to his wife and Lady Conolly.

[THE LORD CHANCELLOR. All the codicils are anxiously expressed to pay the legacies and annuities.]

Yes, all the estates were to be forfeited on non-payment by the different takers; but it is not therefore to be inferred that a fee was given to any of them; those to whom lifeestates were expressly given were to forfeit them. Where a testator has distinctly pointed out a suc- *521 cession of takers without any words of limitation of the fee, to hold that he gave the fee to any one destroys the succession.

[THE LORD CHANCELLOR. If a testator gives all his personal estate to A. it is an absolute gift, subject, however, to be cut down or defeated by other words in the will. But the person contending against such absolute gift must show the words by which it is so cut down. It is not to be questioned that if a person gives his real and personal estate to A. without more, A. takes the personal estate absolutely, but not the real estate without the addition of heirs, or for ever, or other words showing an intention to give an absolute estate. If real estate is given to A. and his heirs, and afterwards to B. and his heirs, this latter gift does not cut down or affect the estate given to A. and his heirs. ] 1

But if you give personalty to A. and afterwards to B. and afterwards to C., these all only take life-estates in succession.

[LORD COTTENHAM. Is there any case where that has been decided?]

See Hawley v. Northampton, 8 Mass. 37; 1 Jarman Wills (4th Am. ed.), 677, note (2) ; Burbank v. Whitney, 24 Pick. 154, 155; Ide v. Ide, 5 Mass. 500.

The word "afterwards means after the former estate.

[LORD COTTENHAM. But the "afterwards arrive.]

may never

There is no case in which it was held that when personalty is given to A. and afterwards to B., and then to C., &c., A. takes an indefeasible interest. It was not, indeed, argued in the Court below, nor will it here, that Mr. Byng took an indefeasible interest in this property, but that he took it subject to the performance of the conditions imposed by the will and codicils on the several devisees and legatees

taking in succession. It would appear by the Master *522 * of the Rolls' judgment that he conceived that the

burdens and charges imposed on the property by the testator indicated his intention to give it absolutely. That inference does not necessarily arise; the conditions are not that the legatees shall pay the charges, but that they are to be paid out of the property given to them, or it is to be forfeited by the person in possession, and to pass to the next taker specified in the will.

Upon the authority of the case of Awse v. Melhuish, before referred to, and the recent case of Doe v. Lean, (a) it is submitted that the testator's intention in the use of the words "all my personal and landed estates," was to describe the nature of the estates, and not the quantity of interest given.

The Solicitor-General and Mr. Romilly appeared for the respondents, but were not called on.

THE LORD CHANCELLOR. -The material part of the will, on which the question turns, is extremely short: "I also leave to my wife, Anne Countess of Strafford, all my houses, gardens, parks, and woods, and all my landed estates, for her life; and afterwards all my personal and landed estates to my eldest sister Lady Anne Conolly, for her life; and then to the eldest son of George Byng, Esq. of Wrotham Park; and (a) 1 Ad. & El. 229 (new series).

afterwards to his second, third, or any later sons he may have by my niece Anne, Mrs. Byng, and then to the eldest son and other sons successively of the Earl of Buckingham by my niece Caroline."

It was argued by the counsel for the appellants, and very properly argued, that as to the first clause, " I also leave to my wife, Anne Countess of Strafford, all * my houses, * 523 gardens, parks, and woods, and all my landed estates for her life," the words "landed estates" are a mere description of the property, and do not denote the quantity of interest; and therefore they argued, and I think fairly argued, that, in the next passage, "and afterwards all my personal and landed estates to my eldest sister Lady Anne Conolly, for her life," the words, "landed estates" have exactly the same meaning, and that, therefore, again they have the same meaning as applicable to the gift to "the eldest son of George Byng, Esq., of Wrotham Park ;" and the learned counsel then come to this conclusion, that as there are no words of inheritance, this gift, as far as the landed estates are concerned, carries only an estate for life. They then follow that conclusion up by this argument. But before I proceed to that, I should state, with respect to the personal estate, that when the testator conveys his personal estate, he conveys all his personal estate to Lady Anne Conolly for life, and then to the eldest son of George Byng, Esq., of Wrotham Park. Those words require no addition of words of inheritance, as regards the personal estate. The personal estate by those words would pass absolutely; therefore, although the real estate might be an estate merely for life, the words are clearly sufficient to pass the personal estate absolutely. Then the learned counsel make use of this argument: they say it was intended that the real estates and the personal estate should go together to the same person, and be vested always in the same person; and as the real estates are only estates for life, therefore (they say) the personal estate must also be considered as an estate for life. But the real estates are estates for life, merely because no words of inheritance have been added; and it does not follow, that because by that omission * 524 there is a failure of the object, the personal estate is

an estate only for life. That argument, therefore, has no weight. It appears to me that the circumstance of the real estates being only estates for life, in consequence of the omission to add words of inheritance, the object which the testator is supposed to have in view; namely, that the personal estate and the real estates should go to the same persons, has on that account failed, and therefore no inference can be drawn from that circumstance.

But then it is said that, though by the words "then to the eldest son of George Byng, Esq., of Wrotham Park," if they stood alone, an absolute estate would be conveyed, yet that the additional words "and afterwards to his second, third, or any later sons that he may have by my niece Anne," alter the nature of the estate. I do not understand how they alter the nature of the estate. The personal estate is absolutely given by the most distinct words to the eldest son of George Byng, Esq., of Wrotham Park. If an absolute estate is given to him by those words, it does not follow that any alteration is made in that estate, because, after the termination or supposed termination of that estate, which can in point of law have no termination, another disposition of the property immediately afterwards is made; therefore I do not think that that argument at all applies. An absolute estate is given, and the will adds, that after the expiration or termination of that estate, then some other person shall take. That estate never does terminate: then there is no other person that can take it.

It is material to observe, that in the two former dispositions, when the testator intends to give estates for life, estates

for life are in terms given; they are not in a remote * 525 part of the will, but in the clause * which immediately precedes; an estate for life is in terms given to the

1 See 2 Jarman Wills (4th Am. ed.), 125, note (2), and numerous cases cited; Wait v. Belding, 24 Pick. 133; Cook v. Holmes, 11 Mass. 531; Josselyn v. Hutchinson, 21 Maine, 340; Newton v. Griffith, 1 Harr. & G. 111; Wright v. Denn, 10 Wheat. 204; Lummus v. Mitchell, 34 N. H. 39, 45. But if the will disclose a manifest intent of the testator to give a fee, a fee-simple estate will pass without words of limitation. See 2 Jarman Wills (4th Am. ed.), 125, note (2), and cases cited; 2 Kent, 7.

Countess of Strafford, and an estate for life is in terms given to Lady Anne Conolly; and then there is this disposition of the property immediately afterwards, to the eldest son of George Byng, and it is given to him without any limitation as to its being an estate for life: that being an absolute estate, the disposition after the termination of that estate is an absolute disposition of a nonentity, and is altogether void, and appears to me to have no effect whatever. Therefore, I think, under these circumstances, that the decision of the Court below must be affirmed.

LORD BROUGHAM. I entirely agree in the view which my noble and learned friend has taken of this case. In the first place, it is not immaterial to observe, that when this testator clearly meant to give a life-estate, he leaves no doubt whatever about it; he gives to his widow for her life; he gives to his sister for her life; and there is no question which can be raised whether or not to those two devisees and legatees he intended an absolute interest or life-estate. Then immediately and in succession following those two devisees and gifts in terms for life come these words: and they are not "then and in the same manner," or "and then in like manner," or "and then and also likewise," which might raise some doubt; but, as if he were addressing himself to a totally different subject-matter, he addresses himself to a totally different party; namely, the son of his niece, Lady Anne Conolly's daughter, his own great-nephew; he then gives it in the words which have raised this controversy, respecting which one is only surprised, considering the vast sum at stake, that half a century should have been suffered to elapse by the respondent * remaining in calm contentment, without taking *526 the opinion of the Court, as has been done by this convenient proceeding: "And then to the eldest son of George Byng, Esq., of Wrotham Park; and afterwards to his second, third, or any later sons he may have by my niece Anne."

Now it is quite clear that "then" must refer to the verb and the substantive before; that is to say, "I leave to my wife all my houses, gardens, parks, and woods, and all my