1840. DOE dem. v. THOMAS. missibility of the map, but it was not handed to the jury. The identity of the lands in the county of Carmarthen, described in the settlement, with those occupied by the defendants in that county, was admitted; but it was contended by E. V. Williams, for the defendants, that there was no sufficient evidence to identify the lands in Pembrokeshire. The learned judge said that he should reserve the point of law, arising upon the construction of the will of Joshua Howell, for the consideration of the Court; but that the simple question for the jury was, whether the lands for which the ejectment was brought were the same as those named in the settlement. The jury returned a verdict for the plaintiff. Nov.1. 1839. In Michaelmas term following, Wilde Serjt. obtained a rule calling upon the plaintiff to shew cause why a verdict should not be entered for the defendants, or why a nonsuit should not be entered, or why there should not be a new trial. As the rule was originally moved for and granted, it went on to order that" as well all the facts relating to the new trial, as the matter of law arising in this case, be stated in a special case to be argued by counsel on both sides, and that the rule be enlarged until after the argument." On the last day of Michaelmas term the latter part of the rule was struck out on the motion of Mr. Evans, for the plaintiff. Jan. 11. 1840. After the note of Gurney B. had been read by Maule J., the Court directed that the point of law, upon the will, should be first argued. Talfourd Serjt. now shewed cause. of the property by Joshua Howell the The enjoyment settlor and de visor, and, upon his death, by his widow, and afterwards by the lunatic son, was established to the satisfaction of the jury. It was not disputed that the reversion was a devisable interest in Joshua Howell, or that it came within the words in the will" of which I have power to dispose." It was not necessary that the testator should have the reversion present in his mind. It is sufficient if he intended to give all properties which he possessed, and which came within the limits of the description. The subsequent clause, in which he uses the expression "over which I have no power," when rightly considered, confirms this view of the intention of the testator. The leading case upon the subject is that of Chester v. Chester. (a) There the devise was, "of all the testator's lands, tenements, and hereditaments, in these three towns of Littleton, Marston, and Milbrooke, or elsewhere, not by him formerly settled, or thereby by him otherwise disposed of," to trustees for the term of 100 years, "remainder to his said younger son, John Chester, in fee." It was held, that the reversion in fee of the settled lands passed to John Chester, the son, by the devise, though the testator had other lands in possession which passed under the devise. In Cooke v. Gerrard (b), the testator, having settled part of his estate upon his daughter for life, devised a messuage to her for a year after his death; and by the same will devised to T. K. all his lands not settled or devised, habendum after one year after his death, and after the death of his daughter. It was there admitted, that the reversion of the settled portion of the estate passed by the estate; and the only contest was, whether the interest which T. K. took in the house was postponed till after the death of the daughter. In Morgan dem. Surman v. Sur (a) 3 P. Wms. 56. (b) 1 Lev. 212. 1 Wms. Saund. 181. 1840. Doɛ dem. V. THOMAS. 1840. DOE dem. บ. THOMAS. man (a), it is true that Sir James Mansfield C. J. is represented as making an interlocutory observation (b), in which he expresses, in strong terms, his dissatisfaction with the decision in Chester v. Chester; but in the same breath he confirms and sets up the authority of that case, by observing that "it has been followed up by a hundred others." It was followed by Lord Eldon, in the Attorney-General v. Vigor (c), where it was held that a remote reversion in lands to be purchased and settled, will pass under a devise of "all and every other messuages, lands, tenements, and hereditaments," although the uses declared in the will of the devised lands, &c. be immediate. In Strode v. Lady Russell (d), the words were, "all other his lands, tenements, and hereditaments out of settlement ;" and it was held (e), that the reversion of lands of which the testator was secured in tail, with the reversion to himself in fee, passed. In Glover v. Spendlove (g), the testator had, upon his marriage, settled freehold and copyhold lands on himself for life; remainder to his wife for life; remainder to their first and other sons, in tail-male, with remainder over; reversion in fee to himself. There being, no issue male of the marriage, but five daughters, testator devised, to them and their heirs, all his lands not settled in jointure on his wife: held, that the reversion of the lands in settlement passed. There is in this will nothing inconsistent with the intention that every thing in Cornwall should go to one son, and every thing in Wales to another. (a) 1 Taunt. 289. And see the cases cited in the notes to (e) Semble, by Trevor, Tracey, and Scroop, Lords Commissioners of the Great Seal from 26th September to 29th October 1710, as Mr. Justice Tracey is mentioned by name, and other members of the Court are referred to. (g) 4 Bro. C. C. 337. Wilson, on the same side. By the settlement of the personal property, which was given in evidence at the trial (a), it appeared that Joshua Howell was tenant for life of the personal estate of his wife, with a power of appointment; and though it may be supposed, primâ facie, that the devises are inconsistent, that will not appear to be the case when it is considered that the bequest to James is merely in respect of the personalty. It is impossible to distinguish this case from that of Chester v. Chester. In Goodright dem. Earl of Buckinghamshire v. Marquis of Downshire (b), Lord Alvanley C. J., in delivering the judgment of the court, says, "The principles upon which the case is to be determined were not disputed. It was admitted, on the part of the lessors of the plaintiff, that it was incumbent upon them to prove, by necessary consequence arising from the other parts of the will, that the residuary clause had not the operation which, according to the rules of construction, it was allowed to have, namely, that of carrying every real interest of every kind whatsoever, whether known or unknown to the testator, provided it were not manifestly excluded. It was admitted that it was necessary to shew, that it would be inconsistent with the general intent of the testator, and the particular provisions of the will, to impute to the testator any intention to convey the one third of a moiety of the estate of which he was seised as right heir of Mr. Farrington; and that it was not necessary that the testator's mind should be active in including the subject matter; but that, even if he did not know that he had it, still it would pass, provided he did not mean to exclude it." The effect of general words in a devise in passing all the testator's estate in possession, in remainder, or in reversion, can be controlled only by express words, or by an intention clearly and plainly to be collected from (b) 2 Bos. & Pull. 600. (a) Suprà, 334.¦ 1840. DoE dem. บ. THOMAS. the will; Strong v. Teatt in error. (a) It is not unusual for an estate tail and the reversion in fee to be vested in the same person; Doe dem. Wright v. Child (b), AttorneyGeneral v. Vigor (c), Church v. Mundy (d), Doe dem. Moreton v. Fossick (e), Mostyn v. Champneys. (g) Here the clause is sufficient to pass the reversion, and it is not affected by the reversionary clause, which relates to personalty only. The testator had power to dispose of the reversion, and he has effectually done so. E. V. Williams, in support of the rule. In construing a devise, the court must look at the intention of the parties. [Maule J. A party may think that he has power when he has no power, and yet he may wish to pass all; he may say, I give all I can dispose of, whether I think I can dispose of it or not it does not follow from the language used, that he meant to exclude. Erskine J. There is a great difference between an intention to exclude, and the absence of intention to include.] In Goodtitle dem. Daniel v. Miles (h), it was held that the reversion of settled lands did not pass by the will, but were excepted out of the general clause by the force of the restrictive words, "and which are not settled in jointure." In Goodwyn v. Goodwyn (i) Lord Hardwicke doubted as to the effect of the word "estates" in passing a reversion in fee: Roe dem. Allport v. Bacon (k), Fletcher v. Smiton. (1) [Maule J. An exception must be of a thing which would be included but for the exception; the words, over which I have no power, were true in the sense of interest, false in respect to the land.] |