statutes and parts of statutes bearing upon the constitution, jurisdiction, and practice of the County Courts. Should this matter, however, not be deemed, by the learned persons to whom we address ourselves, as falling within the scope or wording of the commission under which they act, then would we beseech our legislators when next their attention is directed to the working of the Acts in question, with a view to their amendment, to favour the community at large-so many of whom are deeply interested in obtaining readily a knowledge of the rights and remedies enforceable in the "Poor Man's Court"-with one clearly worded and intelligible enactment (repealing all prior legislation having reference to the matters whereto it relates), that shall give him the information which he needs.

ART. VIII. THE LAW OF THE CONSTRUCTION OF WILLS.

FE

NEW branches of real property law have given rise to more multifarious decisions than this. The reason is that the construction of wills necessarily calls into action the various mental idiosyncracies of the judges who have at different times laid down dicta, rather than principles, for the guidance of their successors. That which appears sufficiently to express a definite meaning to one mind, by no means conveys it clearly to the apprehension of another; and so it has come to pass that general principles of construction have not been always found to be of certain application.

A host of decisions are now on record, and the task suggests itself to us to give as nearly as the case admits a statement of the present law, as it applies to each branch and division of obscurity in wills. Our labour will be somewhat diminished in this work by the keen-sighted treatise recently written by

Mr. Arthur Parsons on the subject, though it by no means exhausts it.

"Verba intentioni" has always been the great canon of construction, and the usual question in each case is what the intention was. There are, however, certain rules which in a great measure aid us in ascertaining this, but still there is no branch of law which requires that we should pay more attention to the cases which have been decided upon it. We propose to consider them under certain distinct heads.

ESTATE.

"Generally speaking," says Lord Mansfield, "no common person has the slightest idea of any difference between giving a horse and a quantity of land." Common sense alone would never teach a man the difference, but the distinction which is now clearly established is this:-If the words of the testator denote only a description of the specific estate or land devised, in that case, if no words of limitation are added, the devisee has only an estate for life. But if the words denote the quantum of interest or property that the testator has in the lands devised, then the whole extent of such his interest passes by the gift to the "devisee." What were such words as denoted the quantum of interest, and not merely the corpus or designation of the property, formed, and still forms, the subject of investigation in all ambiguously worded wills, made before the passing of 1 Vict. c. 26, of which sec. 28 dispenses with words of limitation where real estates pass, and gives the fee simple without them, unless a contrary intention plainly appears.

The word estate has a technical meaning, and supposing it to be used alone, it was always held to pass the fee simple even before the passing of the Act. Where it is employed in the operative clause of the devise, it matters not that it serves another purpose, and also designates the property itself, as in these words, "all my estates, lands, &c., known and called by the name of the Coal Yard," &c. (Roe d. Child v. Wright, 7

A Treatise on the Law of Wills, with an Appendix,_containing the Succession Duty Act. By Arthur Parsons, Attorney-at-Law. Simpkin and Marshall, London.

East, 259). Also in Gardner v. Harding, 2 Moore, 565, the words used were "my estate, consisting of thirty acres of land," &c. In Doe d. Pottow v. Fricker, 6 Exch. 510, the words were "I give H., my estate that I now live in, to my son," &c. In both these cases and several others, it was held that the words "my estate," had the effect of "all the estate that I have in Blackacre," &c. It is obvious to every one who misleads himself by a reference solely to the grammatical construction of sentences and the plain acceptation of English terms, that thus collocated, the words "my estate" mean no such thing; but simply indicate the property itself, and not the interest, which the testator intended to pass in it. For example, he would use the same words in precisely the same sense if he intended, and even if he expressed his intention, to give a life estate, thus:"I give and devise my estate, called Blackacre, to my son A. B. for the term of his natural life, and after, &c., to C. D." In all these sentences the word 'estate' has plainly, in common acceptation, to do with locality, and not with interest. But law has little relation to common acceptations, and has long since attached a magic to the term 'estate;' and so far has this been carried in the last case, of Burton v. White, 22 Law J. Exch. 129, that the courts now dispense with the word "my," which was thought to some extent (though assuredly to a very small one) to imply an interest, as well as indicate a place. But in this case there was no possessive pronoun used. The words were, "I give and bequeath to my son, J. W., all that farm or estate I bought of Mr. B., of London, containing &c., situate at Q. &c., and in the occupation of myself," &c. Now, although these identical words in the same will had been previously construed by the same judges in the same Court to carry only a life estate (vide 17 Law J. Exch. 327), in vain did Mr. Phipson now argue that these words could not be construed into a devise of the fee, the word "estate" being clearly used as a synonym for "farm," and indicative only of the locality of the property: the words not being "all my estate," but "all that farm or estate." The Court dwelt on the technical meaning of the word "estate," and Mr. Baron Parke laid it down broadly-and be it noted that this is the law on the subject-that "the

word 'estate' is sufficient to pass the whole interest a testator has in the subject matter, unless it be controlled by the words in the will, which require it to be considered as merely descriptive of the corpus of the property disposed of by the testator." Thus there is no possibility of the word estate creeping into a devise without passing the fee, so long as it is unaccompanied by words which restrict it to a lesser interest. In the former case of Doe d. Burton v. White, 17 Law J. Exch. 327, it had been argued in vain that the after words in the same will, namely, "I give and bequeath the rents or interests, &c., shall go to the person I have left the estates and properties respectively to," were explanatory of an intention in the operative clause of the testator's meaning in using the words "farm or estate," and showed he intended all his interest therein to pass. In the later decision it was so held without recourse to this auxiliary clause at all! It may, however, be safely laid down that the operative clause determines the interest which passes under it. Randel v. Tuchin, 6 Taunt. 410, and many other cases have decided that where the operative clause does not pass a fee, no words elsewhere introduced can. Since the passing of 7 Wm. 4 and 1 Vict. c. 26, where words of inheritance are unnecessary, even without the magic word 'estate' in order to pass the fee, "I give Blackacre to John Smith," carries the fee without more words, and not merely a life interest, as it would have done before the passing of that Act.

REAL ESTATE.

It is often difficult to distinguish when real estate passes, where no real property is specifically named. The last case sufficiently illustrates this, and shows how such wills are to be construed. The testator bequeathed his property thus: "I give, bequeath, and dispose of all estate, effects, and property whatsoever and wheresoever, which I am now or shall be possessed, or over which I have any right or power of disposition, unto," &c. (trustees.) The sole question being whether this passed the real estate of which the testator died possessed, the Court had recourse to the context, to discover the intention of the testator, as laid down in Woollam v. Kenworthy, 9 Ves. 137,

which decides that the whole scope of the will should be looked to; and also Church v. Mundy, 15 Ves. 396, which throws us on that ordinary sense of the terms used, which in construing the word estate, as we have seen, the Court of Exchequer sets aside. Here the testator had used the terms "principal," " shares," "legacies," "interest," "bequeath" (never" heirs" or "devise"), all of them applicable to personalty only, and not to realty. Then, again, he had directed the trustees, their executors and administrators, to stand possessed of the property, charging legacies upon it. All this showed that the testator had personal estate only in his mind when he made this will. Similarly in the case of Stokes v. Salomons, real estate was held to be in the testator's mind: inasmuch as he had disposed of a life interest in one to his son, he proceeds to give, bequeath, and devise, in the event of his death, "all my aforesaid estates and effects." This was held to contemplate realty; and consequently copyhold property, subsequently acquired, passed under the will.

Unless the contrary clearly appears, wills take effect, and pass all property in possession of the testator at the time, not of the making of the will, but at his decease.

The liberal interpretation put by Courts of Equity and Law on the intention of testators who use general terms in devising their property, is perhaps most of all manifest in the construction put on devises of reversions. Ever since the time of Lord Hardwicke, it has been settled law that a general devise, or rather a devise of a reversion in general terms, passed the fee, and not the mere life estate. It has also been long ago decided, that the reversion cum fee passes even where it is not named, but where such words are used as "all my lands not before devised," although a life estate has been given in them to A. B. Of course reversionary interests expectant on estates tail go by the same rule, however remote; and as the only question is, what did the testator intend, and as great latitude is given in construing the non-legal expressions he may use, it requires very desperate blundering, and excessive inadvertency, to baffle the generous desire of the Courts to open the net wide enough to impute all kinds of reversionary interests to the mind of the testator. It is not in the least necessary that he should correctly

VOL. LIV. NO. CVIII.

U