The testator was not a lawyer. [Maule J. Do not the words mean, I give five guineas instead of all except that which I cannot prevent his having.] Strong v. Teatt (a) shews that the effect of general words may be controlled by the intention, to be collected from the general contents of the will; Roe dem. James v. Avis. (b) It must be admitted, however, that, in Church v. Mundy (c), Lord Eldon expressed himself dissatisfied with Roe v. Avis; but Lord Eldon differs from Lord Kenyon and Sir William Grant in that case; Welby v. Welby. (d) In Horsfall, Ex parte (e), it was held, that the legal estate in mortgaged premises did not pass under a general devise, but descended to the heir at law. The principle is, that if it appear that the testator had no intention that the property should pass, it will not pass. Nicholl, on the same side. It was not the intention of the testator, in using these general words, that the reversion should pass; the words in the subsequent clause shew in what sense the like words were used in the devise to David Howell. If such estate means lands in settlement, the testator excludes real lands. Quâcunque viâ datâ, no interest in the property passed to David Howell; Cook v. Gerrard. (g) In Mostyn v. Champneys (h) there are no such words: there the testator was tenant in tail, and might have disposed of property as he pleased, by suffering a recovery; Moore v. Magrath. (i) [Erskine J. In that case there' was something on the face of the will which shewed that nothing but the undivided moiety was intended to pass; Doe dem. Davis v. Saunders (k), Doe dem. Reade v. Reade (1), Doe dem. Pell v. Jeyes. (m)] the 1840. DoE dem. บ. THOMAS. 1840. DOE dem. HOWELL บ. THOMAS. TINDAL C. J. The question in this case is, whether the ultimate limitation to Joshua Howell, his heirs and assigns, which is found in the marriage settlement, in reversion expectant upon the determination of the estates tail, did or did not pass by the will made by him in 1782. It is admitted, and, I think, very properly, that reversions are included in a devise expressed in general words, unless a manifest intention that they should not be included appear upon the face of the will. I think it is impossible to contend, after the decision in Chester v. Chester (a), followed by a long list of cases which have been discussed in the course of the argument, that under general words of devise, even though they may, in terms, refer to the estate to which the reversion belongs as a settled estate, such reversion may not pass under the devise; and I think the rule cannot be laid down better than it was by Lord Eldon C. in Church v. Mundy (b), where he says (c), "I am strongly influenced towards the opinion that a court of justice is not, by conjecture, to take out of the effect of general words properties which those words are always considered as comprehending." The best rule of construction is that which makes the words to comprehend a subject that falls within their usual sense, unless there is something like declaration plain to the contrary." The question is, therefore, whether there is in this will a manifest and plain declaration of intention to take the case out of the ordinary rule of law. It has been put by Mr. Williams on three distinct grounds, that the Court ought here to see that such a manifest intention does exist. First, he says, if you look at the terms of the will of Joshua Howell, it is clear that when he devises to his son David Howell, he makes a dis (a) 3 P. Wms. 56.; suprà, (b) 15 Ves. 396. 340. (e) 15 Ves. 406. tinction between some property which he had a right to dispose of, and some property over which he had no such right, because he devises to David Howell “all other his manors, messuages, lands, tenements, and hereditaments whatsoever and wheresoever, of which he has power to dispose." It is clear that that is not a sufficient ground of objection, standing by itself. It is enough to say, in answer to that objection, that as he has power to dispose of the reversion in question, that may well pass under a devise so expressed. It is said further on the part of the defendant, that if you look at the terms or conditions on which the devises are made to the several children, it is manifest that the testator never could have intended that an ultimate reversion, which would be of little value, should be given in place and stead of property they would immediately have come into possession of. The words in the will to raise this objection are, that "the above devises and bequests to my said sons and daughters, I will and direct, shall be in full of all claims they may have or be entitled to upon or out of any estate, real or personal, under my marriage settlement or otherwise." Let us see what it is that the testator gives to the different children, upon terms thus precluding them from claiming under the marriage settlement. The first of these devisees, John Francis Howell, takes an estate in Cornwall in immediate possession, with all the manorial rights, messuages, lands, tenements, and hereditaments, in the parish of Lansallos, in the county of Cornwall. What could he have taken under the settlement? James Howell, the eldest son, takes an estate in tail; and the devisee, John Francis Howell, could only have taken an estate tail in remainder. Very little, therefore, had he to give up, when he would be contented to have taken an estate in possession (with the value of which we are not made 1840. DoE dem. v. THOMAS. 1840. DoE dem. v. THOMAS. acquainted) in Cornwall. The devise to David Howell is, of all other the lands, tenements, and messuages whatsoever and wheresoever, of which the testator has the power to dispose, to hold to him and his heirs and assigns for ever; and the question is, whether the testator, having other manors or lands that did pass by such devise, this reversion, which the testator had manifestly the power to give, would pass also? What hardship is imposed upon the devisee, David Howell, if, like his brother John Francis Howell, he also only gave up an estate tail in remainder, (which, in the case of David Howell, would be after two interposed estates tail,) -in calling upon him to accept a present interest in some land, and the reversion of other land, to be enjoyed whenever it may vest in actual possession? So the daughters could only take an ultimate estate tail in remainder, as tenants in common. Under the will, one daughter takes 3000l. immediately, the other 1500l., she having been previously, in part, provided for. I confess, therefore, that, to my mind, this second ground of objection, arising out of the circumstance, that the devises and bequests were made in satisfaction of the claim which the devisees and legatees might set up under the settlement, does not appear, by any means, sufficient to lead to the inference that this reversion was not intended to pass. Then the third ground which is insisted on is, that looking at the devise to the eldest son James, it is clear that the estates which were settled were not intended to pass; that is, that the word "estates" is to have a wide signification, and to comprehend that ultimate reversion of the settled estates, as well as the estate itself. The words are, "I give to James five guineas in full of his share of 2000l., in full of all claims he has, or can make, under my marriage settlement or otherwise, having regard to the real estates which are settled upon him by my marriage settlement, and over which I have no power.” The plain meaning of those words is, that, in so far as they are settled on him, I have no power over them, that is, as far as the tenancy in tail goes, which was the only part settled, and which the testator could not dispose of; for by the very same settlement he takes (I don't know why we should assume he was ignorant of it) an ultimate reversion in fee simple, of which he had power to dispose. I therefore think that this case is brought within the sensible and practical rule laid down by Lord Eldon, that "the best construction is, that which takes the words to comprehend the subject which falls within the usual sense of these words, unless there be something like plain declaration to the contrary." To my mind there is no declaration to the contrary; but as far as I can read the intention of the testator, it was that every thing he could dispose of should be given to David Howell, the second son. COLTMAN J. I take the rule of law to be well established, as laid down by Lord Eldon in the 15th Vesey (a), and adopted by Lord Tenterden (b), namely, that general words in a devise will carry a reversionary interest, unless it clearly appears that the intention of the party was that they should not carry it. It is important that general rules should never be broken in upon without some strong substantial ground. It does not appear to me that in this case enough has been shewn by Mr. Williams to satisfy the Court that the party had an intention that this should be excluded, and that the reversionary estate should not pass. It seems to me that the substantial part of the argument advanced on behalf of the defendants is, that it appears on the face of the will that the testator Joshua Howell supposed that the effect of his marriage settlement had been to vest (b) 1 B. & Adol. 600. (a) P. 406. 1840. DoE dem. บ. THOMAS. |