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1840.

Doe dem.
HOWELL

THOMAS.

the intention of the testator was, that they should not be included.

Then it is further argued, that it does appear on the face of the will that the clause " save in regard to the real estates which are settled upon him by my marriage settlement, and over which I have no power,” shews that it was the intention of the testator that such estates should not be affected by the will, because he had only left those estates of which he had power to dispose, and he here declares that he has no power over the estates settled by his marriage settlement.

Looking at the language which has been used, I agree with my Lord Chief Justice and my brother Coltman, that those words do not bear the interpretation which has been put on them, because the testator does not thereby say that he has no power at all over any of the property in respect of which his eldest son had an estate by the marriage settlement, but merely that he had no power to dispose of those estates settled on him; and that appears to me the proper interpretation of this will; and as we have been invited to put a common sense interpretation upon it, I think we are doing no more. The testator says, “I do hereby give my eldest son, James, the sam of five guineas, part thereof in full of his share of such sumo f 20001., in full of all claims he has, or can make, under my marriage settlement or otherwise, save in regard to the real estates which are settled upon him by my marriage settlement, and over which I have no power.” The bequest to James has reference not to the reversionary estate devised to David, but to other property. The terms of the bequest to James do not import that the five guineas was to be in lieu of the interest of James in property over which the testator had no control, but in lieu of property over which he had control. I am, therefore, of opinion that the general words in which the devise to David Howell is made are sufficient to carry the reversionary interest.

1840.

MAULEJ. I am also of opinion that the reversionary interest which Joshua Howell had under his marriage settlement passed under the general devise to his son David. It is admitted that the words of the general devise are sufficient to pass such an interest, unless something else in the will would control their effect. I do not think that the rule to be applied to this case is to be treated as a positive rule, by which we are bound in consequence of its being admitted in the courts to be an independent principle. It appears to be a branch of the general rule, that the intention of the testator is to prevail. That rule was once found fault with by Sir James Mansfield (a), but I think the current of authorities, before and since his time, are to be preferred to his opinion on the subject. The ground on which that doubt of Sir James Mansfield was founded seems to have been this, that it is rather too strong a thing to say that the testator passed by his will property which was not in his mind at all, and which he did not think of. I do not consider it a very unlikely or unreasonable thing that there should be such an intention in the mind of the testator. On the contrary, it would be unreasonable to say that the testator did not pass any thing by his will, unless he bad some map or rent-roll before him. Nothing is more likely than that a person, not knowing what property he has, where it is, or what the description of it may be, should yet have this intention, — that every thing he could, he would give. That seems to be the intention evinced by the testator by the use of such words. This merely goes to the reasonableness of a long current of authorities by which we are bound. I think they are binding on the Court, not only on account of their num

Doe dem
HOWELL

THOMAS

(a) In Morgan dem. Sure man v. Surman, 1 Taunt. 289., where Sir James Mansfield

speaks of the judgment in Ches-
ter v. Chester as “ a shocking
decision.” Suprà, 341.

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ber, but also by reason of the principle on which they are founded.

The question comes to this, whether the testator has shewn that he intended to exclude this property, which otherwise would pass, from the effect of his residuary devise. It is urged that he intended to do so, partly because (it is said) this is a remote reversionary interest, and of small value, and, therefore, it is not likely he should have given it in satisfaction of something which the devisee could claim immediately on his death, and which was of considerable value. Whether that argument would be entitled to any great weight I will not say. But in order to raise such an argument, it should be shewn that this residuary interest was the only thing which David Howell was to have in exchange for, or satisfaction of, that for which it is to be taken in satisfaction. That is by no means the case, for the testator bequeaths all his lands, tenements, and hereditaments whatsoever, and wheresoever. Where a devise is made in satisfaction for something else, is that any reason for excluding as part of that devise something, because it is rather special or remote ? I cannot see that it furnishes any reason at all. It appears to me that the testator probably had his marriage settlement before him at the time he made his will, because he recites that by the settlement on his marriage he has power to appoint a sum of 20001. to and among his children as he shall think proper. He had either a very good recollection of the settlement, or he had it before him. The probability is that he had it before him. Then comes the clause, on which much reliance is placed for the defendants, that he gives to his son James the sum of five guineas, part thereof in full of his share of the sum of 20001. with respect to which he might give among all his children. He gives him five guineas. He does not give any thing to 1840.

Doe dem. Howell i

THOMAS.

his other children out of that, but he gives all the residue of the 20001., except the five guineas, to his wife. But then he has given to his son, John Francis, the Cornwall estates; to his son, David, he has made the devise in question; to Lucy he has bequeathed 30001., and to Thomasin 1500l.; so that he has given a full satisfaction to his other children for that which he might have appointed out of thé 20001. I think what he had in contemplation as to the satisfaction, was the claim they had in respect of that 20001. Then he further says, he gives the five guineas to him in lieu of all claims he should have under his marriage settlement, save in regard to the real estates which are settled upon him by kis marriage settlement, and over which he has no power. This clause of the will has no reference to the previous devise to Daniel Howell. The matter which the testator had in hand when inserting that clause, had no connection with the devise to David Howell. He is then concerning himself only with the way in which he should deal with the right of his son James to a portion of the 2000l. So that the probability is, that the words " over which I have no power,” were not intended by the testator in any way to influence James. I understand the testator to say, in effect, “ I give it him in satisfaction of all claims he may have under my marriage settlement, save in regard to the real estates which are settled upon him by my marriage settlement, and over which I have no power;" that is, “which I cannot prevent his having, or, of which I have no power to deprive him; and I do not affect to exercise such power.” If so, the words have no meaning at all (even if read ever so much in juxta-position to or in combination with other devises) which could qualify the devise to David. It has been assumed, in argument, that these words “over which I have no power,” are equivalent to an assertion by the testator, that he had no power over the reversion, and

1840.

that therefore that reversion would not pass. Probably it is not necessary to decide that. I am far from thinking that such an assumption is one that ought to be granted.

Doe dem.
HOWELL

THOMAS.

a devise, and has done with it, may, in a subsequent part of his will, make an erroneous' assertion on the subject of that prior devise. I think that such erroneous assertion will not have the effect, in any degree, of limiting the devise which has gone before. That was so decided in the well known case of Smith v. Doe dem. Lord Jersey (a), in which it was held, that a positive allegation in a subsequent part of the will, that a certain estate was in the county of Glamorgan, did not limit to the county of Glamorgan the previous devise of the estate by name, but that it might be construed as comprehending property in the county of Brecon. So that if the words had been, “ that the testator had no power to devise the reversion in the settled estate,” it would not at all follow, because he used inapt words to devise all he could devise, that it was not his intention that those words should prevail in the event of his being mistaken, and his having something more than he knew of, or different from what he supposed. These general words, therefore, may be, and often are, used by persons who draw wills, for the purpose of carrying property, of his power to dispose of which the testator may not at the moment be aware, or respecting which he may not know what the precise nature of his rights are.

Therefore I think, on the whole, notwithstanding the great number of authorities which have been cited on both sides, that the clear intention of the testator is to be gathered from the will itself; and that this intention was, that every thing should pass to the devisee

(a) 2 Brod. & Bingh. 473., 5 B. Moore, 332. and see Doe,

dem. Douglas v. Lock, 4 Nev.

M. 815., 2 Ad. & El. 705.

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