MENT.

SETTLE- and to and with fuch other powers and authorities whatsoever, as fhall be thought fit and proper in that behalf, whenever the fame fhall or may eventually turn out ufeful or prejudicial to the inhe ritance of the premises fo to be demised, so as on every fuch demife there be referved the best and moft approved yearly, half yearly, or quarterly rent or land-money, that can or may be reasonably had or gotten for the fame, to be incident to the immediate poffeffion, reverfion, or remainder of the premises fo to be demifed, and fo as every leffee do execute a counterpart of his leafe. IN Witness, &c.

OF WILLS.

PREVIOUSLY to presenting the Student with the

felection I have made from Mr. POWELL'S collection of WILLS, I fhall offer to his perufal fome valuable opinions, taken from the fame collection, which are there stated to have been given by the late eminent Mr. FEARNE. I must also earnestly recommend to his notice the very learned annotations made by that gentleman, to the edition of SWIN BURNE, which is on the eve of publi cation; and in which nearly the whole of the modern Law relative to Wills, (particularly as referrible to the difpofition of chattel interefts) appears to be comprised.

CASE.

Whether the words " teftamentary Eftate," are fufficient to pafs real property.

AFTER giving a fhilling to his heir at law, testator W. J. devifes as follows, viz.

And as, to, for, and concerning all the reft, refidue, &c. and of my goods, chattels, books, debts, fecurities for monies, perfonal and teftamentary eftate whatfoever and wherefoever, and of what nature, kind, or quality fo ever not hereinbefore by me given or difpofed of. I give, devife, and bequeath the fame, and all and every part thereof, unto my fon W. C. his heirs and affigns for ever."

Query, are the above words fufficient to pass real property?

This appears to me a difputable cafe: the words teftamentary eftate, feem moft properly applicable to perfonal property, the original lubject of what is properly called a teftament, to which an executor is effential in the ftrict fenfe of the word in the civil law; its following the words enumerating several species of perfonal estate, and being coupled with the word perfonal, may be urged as an argument in favour of fuch a construction, infomuch that had the conftruction refted merely on those words, I fhould have been inclined rather to think that they did not extend to real estates. But a teftator is not tied up to strictness of expreffion, or propriety of expreffing words, and the words teftamentary estate, though most properly applicable to perfonals, are not, I conceive, confined to that fenfe, but may mean whatever estate is fubject to or can be difpofed of by his teftament. Now the ftatute of wills exprefsly fubjects lands to difpofition by laft will or teftament, and therefore in the large fenfe of the words teftamentary eftate, they feem applicable to lands; and here the introductory words expreffing a difpofition of all the teftator's worldly eftate, and his giving a fhilling exprefsly to the perfon who was his heir at law, limiting his refiduary property fubject to the payment of his debts, legacies, and funeral expenfes, by words adapted to lands and to a limitation of the inheritance, I think manifeft the teftator's intention to give him all his refiduary property, confequently that he meant by the words teftamentary eftate, to include his lands, and every

thing alfo that was fubject to teftamentary difpofition. The extenfive additional words, whatfoever and wherefoever, and of what nature, kind, or quality foever, corroborate this conftruction; and in any other fenfe, the coupling the word teftamentary with perfonal, would be nugatory. It is true, that in an indefinite devife of lands to one with words of limitation, fuch introductory claufe and difinheriting legacy to him, as in the prefent case have been held infufficient to entitle the devifee to the inheritance (vide Right v. Sidebotham. I Doug. Rep. 730, and cafes there cited). But that was for want of words fufficient to carry it: but here, if the words teftamentary eftate are applied to real estate, they are fufficient to carry the lands in queftion; and there are proper words of limitation extending to the inheritance in fupport of fuch a construction; and though as the perfonal estate is exprefsly included in the fame words of limitation, the argument of intent from thofe words merits very little ftrefs; yet, I think, the other circumftances I have noticed, fufficiently indicate the teftator's meaning to pass every eftate of whatever quality, which was fubject to his power of teftamentary difpofition; and therefore I rather incline to the opinion that the lands in queftion paffed to the fon C. in fee, by the above stated will; but yet I think it much too queftionable a point for any pur chafer to rely on.

C. F.

Opinion on the conftruction of a devife to devifees, and the "heirs of their bodies for ever, as tenants in common.”

IF M. J. and H. D. took an eftate for their heirs in remainder, expectant on the decease of their two wives, the fubfequent limitation to the heirs of their bodies, &c. might be confidered to give them an eltate tail each in one moiety in remainder, expectant on the decease of the furvivor of themselves and their wives, if it were not for the words for ever, and as tenants in common in the limitation to the heirs of their bodies, &c." The former of thofe expreflions, viz. for ever, has never been alone held fufficient to prevent the conftruction of an eftate tail in the ancestor, but the latter, viz. as tenants in common being, when referred to the iffue of the fame parent, incompatible with an eftate tail in fuch parent, muft, I conceive, in fuch cafe, decide the construction against an estate tail in the parent, and make the iffue

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take by purchase. But here feems fome ambiguity in the reference of those words, viz. Whether they meant a tenancy in common only as between the heirs, &c. of Mog, &c. then of Harrison, or as well between the heirs, &c. of the feveral fathers as thofe of the fame father. In the firft cafe they would be no obftacle to the conftruction of a remainder in tail in each father in one moiety refpectively; and in that cafe the limitation over (though loosely worded, because not in default of iffue of the fathers but of the mothers) might be conftrued a remainder, to place on the determination to bar it; for the eftate tail in his father's original moiety, I conceive, would be in him; and the nature of the limitation over, as confined to the failure of issue of both the daughters, I apprehend, muft give cross remainders in tail by implication between their faid husbands, fo as to intitle Jofeph to the whole in tail: I therefore must advise a recovery by Jofeph at least, in order to obviate this question; and his wife being vouched with him in that recovery, will bar her claim, and render a fine by them for that purpose unne ceffary; and this would be enough to clear the title, if there was no room for any queftion in refpect to Jofeph's being the perfon folely intitled under his grandfather's will. But if the words tenants in common fhould be conftrued to apply to the heirs of the body of the fame father as among themfelves, (that being inconfiftent with an eftate tail in the father) under which the eldest or only fon would take the whole, and even daughters in default of a fon would take not in common but in coparcenary, muft, I apprehend, prevent the conftruction of an estate tail in the father, and give the estate to the heirs of his body, &c. by purchase, at the fame time that the tenancy in common fo directed between fuch heirs, &c. might fhow that by the word heirs, &c. the teftator did not mean the persons anfwering that description in its legal fenfe, but meant children or iffue to take the estate between or among them in common, now the limitation over in this cafe being in the event of both his daughters dying without bearing iffue, manifefts the intent that the iffue of either in default of iffue of the other, should take the whole; and yet, if we understand the words as tenants in common to apply only to fuch tenancy as between the refpective iffue of the two fathers, then the exprefs limitation to fuch heirs, &c. carries one moiety only to the Jue of either father; whereas the applying those words to a tenancy in common between all the iffue, &c. of either, extends the exprefs limitation of the whole to the iue of