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1840.

DoE dem.
HOWELL

v.

THOMAS.

inalienably in his eldest son the whole interest in that estate. In construing the will according to that aspect of it, nothing of that sort appears. What is it he states? "I do hereby give my eldest son James the sum of five guineas, part thereof, in full of his share of the said sum of 2000l., and 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."

It is perfectly true, taking the words literally, that by "estates" is meant the interest of the party. In this case the testator has a power over the estates which are settled upon his son James by marriage settlement; and I do not see that the other clause, which has been relied on, leads to any conclusion that he did not understand the real nature of the interest, namely, that it was settled in succession upon the different sons, then upon the daughters, as tenants in common, with the ultimate reversion to himself in fee. What is the other clause relied on? "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 my estate, real or personal, under my marriage settlement." That seems to me to lead rather to the inference that he understood that each of them (both sons and daughters) had a claim under his marriage settlement, namely, a claim in remainder, which they really had to the estate tail. I find therefore nothing on the face of the will which satisfies me that the testator did not perfectly understand the nature of the interest he had. I can see no reason why it should not pass by these words, "all my interest whatsoever of which I have power to dispose." I think therefore that the Plaintiff is entitled to the verdict.

ERSKINE J. I am of the same opinion. It is impossible to read this will without seeing that it was the intention of the testator to dispose of every species of property over which he had a disposing power. That does not appear to be denied; because it is admitted that the words by which Joshua Howell devises estates to his son David, are large enough to cover every species of real property of which the former had any power to dispose, and that the residuary clause to his wife would be sufficient to cover all his personal effects.

But it is argued, that it is clear from this will that the testator had imagined that the real estates which were settled on his sons and daughters in tail, had been irrevocably and altogether settled on the eldest son, and that he had nothing to dispose of in respect of them; and therefore, that although it was his intention generally to dispose of all his property over which he had a disposing power, yet inasmuch as he did not know that he

power to dispose of any thing relative to those estates, those estates were not in his contemplation, and that the fact that they were not in his contemplation appears on the face of the will, and that therefore they will not pass by the general words of the devise to David Howell.

That is the way in which I understand the argument of Mr. Williams. He seemed to go further; he was not satisfied with saying, that if it appeared by any part of the will that the testator intended to exclude this property, it would not be included; but he seemed to think that if it appeared on the face of the will, that he had not the estate in his contemplation at all, though he might not have intended to exclude it, yet it would not be included in it. Looking at all the cases cited, the doctrine is clear, that where general words are used large enough to include the estates in question, the estates will pass by such words, unless it appear on the face of the will that

1840.

DoE dem.
HOWELL

V.

THOMAS.

1840.

DoE dem.
HOWELL

v.

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 sum of five guineas, part thereof in full of his share of such sumo f 2000l., 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.

MAULE J. 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 had 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

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

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1840.

DoE dem
HOWELL

บ.

THOMA S

1840.

DoE dem.
HOWELL

บ.

THOMAS.

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 2000l. 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 2000l. with respect to which he might give among all his children. He gives him five guineas. He does not give any thing to

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