of the Rolls; secondly, by the Court of Queen's Bench, and finally confirmed by Lord Romilly when Master of the Rolls, it is settled that although there is a general devise or bequest of the lands of the testator to one for life, with remainder to his issue in tail, with remainder over, the inconvenience which would arise from holding that the leasehold property would vest in the first tenant in tail from the moment of his birth will not operate against the general devise; if, therefore, there had been nothing more in this will than the devise of these lands to his sons and to their family in succession, and then to his daughter in the manner I have mentioned, I am clearly of opinion, not only by the words of the will, but by Wilson v. Eden, followed as it has been by other cases, that I should be bound to hold that these leasehold estates would pass, though the consequences would be to vest them in the first tenant in tail who was born, absolutely, and would render all the subsequent limitations inoperative. But the statute says "that they are to pass unless a contrary intention shall appear by the will." Now how is that to be shewn? Mr. Bristowe has argued that a testator must say so; but if that had been the intention of the Legislature the language would have been different. It would then have been, "unless the testator shall express a contrary intention." Here it is, "unless a contrary intention shall appear by the will." What is the meaning of that? It must be that the Court, having the construction of the will to determine, must be

satisfied by regarding every part of it, either from one part or from all the parts taken together, and be able to draw the conclusion that the testator did not intend, under a general devise of lands and hereditaments, to pass the leasehold property. Accordingly, in this case, Mr. Cotton very properly conceded that if the will had been as I have mentioned, and if it had stopped after the limitation to the right heirs, that would not be sufficient to shew the contrary intention, because the same limitations occur in Wilson v. Eden, so that the property would vest in the first child that was born, absolutely in tail. In that case the ultimate limitation was to Sir" William Eden and his heirs and assigns." The same argument was raised in that case as has been raised here. It was said there was a clear intention that only the real estate should pass. The argument was rejected, and I should have been bound to reject the argument in this case were it not for the fact that by other parts of this will my opinion is that the testator has shewn a sufficient indication of intention that this property should not pass by the general devise. Now whatever he did intend to pass by the general devise, over that property he has given powers of sale and exchange, and he has provided that the moneys arising from the sale may be invested in the purchase of other lands of a freehold nature, or leasehold estates conveniently situated to be held therewith. If it had stopped there it would have been "the proceeds of freeholds or leaseholds convenient to be

held therewith to be invested on the same trusts." That would not have altered the effect of it.

But then it goes on to provide that if leasehold estates are bought-that is, bought under the general devise in strict settlement-then they are to be settled in such a manner as that they are to go exactly as the estates sold would have gone, and he has then expressly provided that they shall not vest in any person made tenant in tail who shall die under the age of twentyone years; therefore distinctly shewing that he did not intend that the leaseholds should pass, because if they had passed by this devise they would have vested in the first tenant in tail; and the consequence is that the property which is sold is not to go to the first tenant in tail, but is by this expressly directed to be tied up in such a manner as that it is not to vest in any tenant in tail by purchase who does not attain the age of twenty-one years. therefore, if I had thought that he had passed his leasehold estates before, that shews to my mind that he would have inserted a similar clause, that the leasehold estates comprised in the proviso should not vest in any person made tenant in tail who should not attain the age of twenty-one years. That is one circumstance from which, I think, it may fairly be concluded what his impression was (and his impression was no doubt his intention) as to the leasehold estates passing by that devise.

Now,

Another circumstance, which Mr. Cotton very strongly adverted to, was, that when he comes to an accumulation clause he says that during the minority of any person made tenant in tail the

rents are to be accumulated, and by using that expression, "the minority of the person made tenant in tail," I think he shews that he knew perfectly well that a tenant in tail dying under age could not dispose of an estate tail, but that it would go over, under the limitations contained in his will, to the issue of that tenant in tail if he died leaving issue, if not it would go over to the next one in the line of limitations; but he provides that the rents and profits during the minority of the tenant in tail are to be accumulated, and the accumulations are again to be laid out in land; but they again are so to be settled that the produce of these accumulations are not to vest in any tenant in tail by purchase who has not attained the age of twenty-one years.

Then another circumstance is this: He gives his chattels in strict settlement. He bequeaths his pictures, prints, books, plate, glass, china, ornamental and other clocks, articles of linen, household goods, furniture, and effects whatsoever, which at his decease shall be in or about his mansion-house of Stanlake, to trustees on trust to go with the real estate. They are all to go together, but that again provides, 66 so that the same shall not vest absolutely in any person hereby made tenant in tail male by purchase or in tail by purchase of the mansion-house, unless such person shall attain the age of twenty-one years, but, on the decease of any such person being tenant in tail male by purchase, or in tail by purchase, under or by virtue of this my will, shall go, devolve, and remain in the same manner as if they had been freehold of inheritance, and had been

included in the devise in strict settlement."

Then we come to that clause which is very material, if I am right in considering that these leaseholds did not pass by the special devise which I have referred to of the general estate. He now gives his general residuary personal estate in these terms: "I give and bequeath all the money, securities for money, goods, chattels and personal estate of or to which I am or at my death shall be possessed of or entitled to either at law or in equity, or of which I have or at my death shall have power to dispose of by will, unto the trustees on trust either to permit and suffer the same or any part thereof to remain in its actual state of investment." Of course Mr. Bristowe has very properly conceded that if the leaseholds do not pass under the first clause they will pass by this, under the description of personal estate. But an observation was made that it could not apply to the leasehold estates because he speaks of the present investment, and a man would hardly speak of leaseholds in this sense-to remain in their present state of investment: but reddendo singula singulis, I am of opinion that those words apply to the part of the property which is, strictly speaking, so invested, and that it would pass that part of his property which is otherwise not disposed of.

Now what are they to do with his personal estate? They are to collect it, and it is to remain in the same state of investment, or it is to be put into other investments. Then what is to be done? It is to be held by the trustees

in such a manner as that it is to go in strict settlement. They may also lend the money on leaseholds not having less than sixty years to run, and then they are to hold it in strict accordance with the limitations contained therein, of his real estate, so that whoever is entitled to the real estate is also to be entitled to the personal estate. But then, again, comes this provision:"shall not vest absolutely in any person hereby made tenant in tail male by purchase, or in tail by purchase, of the same hereditaments and premises, unless such person or persons shall attain the age of twenty-one years; but on the decease of any such person being tenant in tale male by purchase, or in tail by purchase, under or by virtue of this my will, shall go, devolve, or remain in the same manner as if they had been freeholds of inheritance and had been included in the devise in strict settlement herein before contained." Now if the testator was so anxious, first, that the accumulations of his real estate should not vest, then that his heir-looms should not vest in any person made tenant in tail, and, thirdly, that his general personal estate should not vest, what an absurdity it would be to suppose that he intended his large leasehold estates should vest, and that he should make no such provision as to them as he had done with regard to the others.

Therefore I look at every part of the will, and I see that he could not have intended the leaseholds to pass by the first gift, but that he intended them to pass by the second gift, and that they were to be held on the same trusts as his general real estate, so that they

should not vest in any person made tenant in tail who should not attain the age of twenty-one years.

Then Mr. Bristowe says there is a codicil, and that the codicil makes a difference, because by his will he had wound up by a limitation to his own right heirs, and now, by the codicil executed in 1865, and reciting the limitations contained in his will with regard to his real estate, he says, instead of the devise "for the use and benefit of my own right heirs, they are to go to the benefit of my sons "—that is, everything he had given before; the words are: "To the use and for the benefit of my said sons George William Barker and Alfred Gresley Barker, equally to be divided between them and their respective heirs, executors, and administrators, absolutely and for ever." Mr. Bristowe argued that that shews that he knew very well that in the original devise there was real and personal property, because he gives it to his heirs, executors, and administrators; but that argument, I think, entirely falls to the ground when it is considered that he had given his personal property to be held in the same manner as his real estate. The ultimate limitation with regard to that will be to his right heirs, which will mean next of kin or legal personal representatives, but now he substitutes his two sons. By the first part of the will he had given the real estate, by the second part he had given the personal estate, and as to both he now says, "I give it to them and their heirs "—that is, the real estate; "and their executors "—that is, the personal estate. Therefore that fully explains it. Now, therefore, upon these clauses, being, as I am, bound in all cases of

construction of written instruments, to look at the instrument in every part of it to ascertain what the intention of the parties is looking at every part of this will, and seeing the inconvenience that would arise from allowing the property to vest absolutely in the first tenant in tail who came into esse, so that the consequence would be that if George William, the first son, had had a child who died an hour after its birth, the property would have vested in him-although I agree with Mr. Bristowe that that would not have been sufficient, yet that is an objection which was overruled in Wilson v. Eden, and that alone would not have done; but when I find such anxious provisions to prevent that consequence happening, I come to the conclusion that it was not inserted with regard to the property comprised in the first devise because he considered that he had only passed the real estate, and that with regard to such real estate no such provision was necessary, as it would not vest in any tenant in tail who did not attain the age of twentyone years and had not executed a disentailing deed. That knowledge I must attribute to the testator, and therefore, the statute not requiring that there should be any express intention, but it being only a "contrary intention" to be collected from the whole will, I come to the conclusion that there is a contrary intention shewn by this will.

The first question, therefore, will be answered in the affirmative, and the second in the negative. And with regard to the third question, I am of opinion that the trustees may postpone the sale and conversion of the leasehold estate for the present. It appears that the leasehold estates produce a gross