DOE d. HICKMAN

executors and administrators of such survivor, share and share alike, as tenants in common, and not as joint tenants," was held to give a tenancy in common in fee; and WILMOT, J. there said HASLEWOOD. that "executors" is equivalent to "heirs," in a will. In Roe lessee of Shell v. Pattison (1) the words "I leave all the remainder in the above stocks with my freehold property to my sister" were held to give a fee; Lord ELLENBOROUGH saying that "it was clearly the intention of the testator *to give as absolute an estate and interest in his freehold property as in his stock; and that "there are no words of such an inflexible nature as will not bend to the intention of a testator, when it can be collected from the context of his will." In Doe d. Gillard v. Gillard (2) the words, "I make R. G. my whole and sole executor of all my lands for ever," were held to give a fee.

(COLERIDGE, J. referred to Piggot v. Penrice (3).)

The cases where words making a party executor of lands have been held to pass no inheritance, will be found to be cases where, as in Piggot v. Penrice (3), the devise is not of specific land, as here, but of estates generally.

(LORD DENMAN, Ch. J. referred to Clements v. Cassye (4) and Shaw v. Bull (5).)

It may be doubted whether Shaw v. Bull (5) would now be decided in the same way. At any rate, where the intent to give the specific property to the executrix is clear, as here, the case does not apply. There is no alternative between giving the fee and rejecting the clause altogether.

(PATTESON, J.: In Tayler v. Web (6) it was held that the words, I make my cousin G. B. my sole heir and my executor, passed a fee: you contend that making a person a sole executor only does the same.)

(1) 16 East, 221.

(2) 5 B. & Ald. 785.

(3) Prec. Chan. 471.

(4) Noy, 48.

(5) 12 Mod. 593; S. C. 2 Eq. Ca. Abr. 320, pl. 8.

(6) Style, 301, 307, 319; and see Marret v. Sly, 2 Sid. 75.

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HICKMAN

DOE d. If a person be made executor of specific land, that is the effect: as a devise making a man sole heir of a leasehold would give HASLEWOOD. him the absolute property in the chattel.

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(PATTESON, J.: If "executrix" in this will means devisee, there is no executor named; for the wife is not made executrix generally.)

She would be administratrix cum testamento annexo.

Butt, contrà:

This is, at the most, a gift of the house to the executrix that passes only a life-estate, for want of words of inheritance. In Loveacres d. Mudge v. Blight (1) the will commenced with the words "as touching such worldly estate," &c. : the word "estate" has been held to pass a fee. But that case is at variance with the later case of Denn d. Gaskin v. Gaskin (2). In Doe d. Gillard v. Gillard (3) the debts, legacies, and funeral expenses were charged on the realty; so that it was necessary for the executor to have a fee. So, in Rose d. Vere v. Hill (4), the executors, who were devisees, were, in the first place, to pay the debts this charge has often been held to give a fee by implication: Doe d. Willey v. Holmes (5), Goodtitle d. Paddy v. Maddern (6), Doe d. Beezley v. Woodhouse (7). In Goodright d. Drewry v. Barron (8) the words were "as touching such worldly estate " &c., with a devise following, and then "also I give and bequeath to my wife Elizabeth, whom I likewise make my sole executrix, all and singular my lands, messuages and tenements, by her freely to be possessed and enjoyed." This was held to give a life-estate only. In Clements v. Cassye (9) "I make my wife executrix of all my goods and lands" was held to give her such lands only as she might have as executrix. In Piggot v. Penrice (10) the words were more in favour of the executor than here; for the gift was of "all my

(1) 1 Cowp. 352.
(2) 2 Cowp. 657.
(3) 5 B. & Ald. 785.

(4) 3 Burr. 1881.
(5) 8 T. R. 1.

(6) 4 East, 496.
(7) 4 T. R. 89.

(8) 11 East, 220.

(9) Noy, 48.

(10) Prec. Chan. 471.

goods, lands, and chattels."
In Denn d. Moor v. Mellor (1)
the words were "all the rest of my lands, tenements, and
hereditaments" &c., "I give, devise, and bequeath the same
unto my wife," who was also made sole executrix this was held
to pass only a life-estate. A similar decision, given upon the
same facts, in Doe d. Mellor v. Moor (2), was reversed in the
Exchequer Chamber, Denn d. Mellor v. Moor (3); but the
decision of the Exchequer Chamber was reversed, and that of
the King's Bench affirmed, in the House of Lords: Moor v.
Denn d. Mellor (4). In Doe d. Ashby v. Baines (5) a testator
devised to his daughter, being his sole executrix, "all and
singular my lands, tenements, and messuages, by her freely to
be possessed and enjoyed:" this was held to give only a life-
estate. The heir cannot be disinherited except by plain words.

Sir W. W. Follett, in reply:

It appears from Co. Litt. 9 b, that the rule as to words of inheritance being requisite never prevails against the manifest intention of a devisor. This passage from Coke is referred to in Cruise's Digest, Devise, ch. xi. ss. 5, 6 (6); and numerous authorities to the same effect are collected in that chapter. In Trent v. Hanning (7) a testator, after charging his real estate, appointed three persons "as trustees of inheritance for the execution hereof;" and this was held to carry a fee. In Doe d. Penwarden v. Gilbert (8) a testatrix, after devising and bequeathing to J. G. all her lands, particularly those called B. and B., added, "and all the rest and residue of my goods and chattels, personal and testamentary estate and effects whatsoever I give and bequeath unto the said J. G., *whom I make whole and sole executor of this my last will and testament;" and J. G. was held to take a fee in B. and B.

(Butt: DALLAS, Ch. J. there says that, but for the concluding words, and the introductory ones, "as for my temporal estates and effects," there would have passed a life-estate only.)

(1) 5 T. R. 558.
(2) 6 T. R. 175.
(3) 1 Bos. & P. 558.
(4) 2 Bos. & P. 247.

R.R.-VOL. XLV.

(5) 2 Cr. M. & R. 23; 5 Tyr. 655.
(6) Vol. vi. p. 208, 4th ed.

(7) 7 East, 97.

(8) 3 Brod. & B. 85.

29

DOE d. HICKMAN

v.

HASLEWOOD.

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Numerous cases of fees passing without words of inheritance are
collected in Harrison's Digest, Will, part II., vii.

LORD DENMAN, Ch. J. now delivered the judgment of the COURT.
After stating the case, his Lordship proceeded as follows:
The question is, whether, under the will above set forth,
Ann Haslewood took an estate in fee-simple.

Upon the argument of this case many cases were cited, not, we think, (with one exception), as being in their circumstances similar, and, therefore, bearing directly upon this, but rather in illustration of the general principle upon which our decision ought to be founded.

We have referred to those cases, and perused them, and are clearly of opinion that none can be considered to be directly decisive of this point. We could not fail to observe, however, upon that perusal, a constant reference to the principle upon which this and every other will is to be construed, viz., that every case of this sort depends upon its own peculiar circumstances; for, in every case, the question is one of construction to be made on the whole of the will; every case, therefore, is individual: " DALLAS, Ch. J., in Doe d. Penwarden v. Gilbert (1), cited at the Bar.

The question for our decision seems to depend upon two points: first, whether the intention of the testator can be clearly and satisfactorily collected from the will; secondly, whether we are enabled, consistently with the rules of law, to carry that intention into effect.

Upon the first point, it is to be observed that it does not appear that the testator was possessed of any other property beyond that which is noticed by his will; nor can we perceive an allusion to any other object of his bounty except his wife. Moreover, in the earlier clause of the will, all the testator's personal property, including everything due to him upon securities of every kind, is (though the word "heirs " is there as much misapplied as the word "executors" to the freehold house) beyond all doubt bequeathed to the wife.

Having thus completed his purpose with respect to the whole

(1) 3 Brod. & B. at p. 88.

DOE d. HICKMAN

v.

For HASLEWOOD.

of his personalty, the will immediately proceeds to notice the
only remaining property of the testator, his freehold house,
No. 15, Great Queen Street, in the parish of St. Giles.
what purpose, then, can we suppose that the house was intro-
duced into the will at all? Why is it mentioned in immediate
connexion with property most certainly disposed of, if he meant
to die intestate with respect to it? We can discover no other
probable or reasonable supposition but that the house was
introduced into the will with the intention of disposing of it;
and, if so, there is no other conclusion possible but that he
meant the disposition to be in favour of his wife.

We therefore think that, by the words "I do likewise make my said wife full and sole executrix of the freehold house," &c., the testator did intend to devise that house to his wife; and that (however inartificially *he has executed his purpose) he fully believed that he had done so. Whatever effect can reasonably be given to the word "likewise," we are not, we think, authorised to reject and expunge, as wholly insignificant and unmeaning, a clause in the will in which, we have no doubt, the testator himself thought his meaning had been most fully, and even learnedly, expressed. And, if this clause must be retained, as we are of opinion it must, it seems impossible to say that the testator did not intend to give to his wife some interest; and, if so, there is not only nothing to limit the intention to giving her anything less than "the full and sole" dominion over the house in question, or, in other words, an estate in fee-simple therein, but the term "full and sole executrix," as it would import the grant of the entire interest and dominion in and over property whereto it is correctly applicable, evinces an intention to grant no less in that to which it is, through ignorance, misapplied. Thus much, therefore, as to the intention of the testator.

The solution of the first point has, we think, a very considerable effect in disposing of the second; indeed, the last argument, if correct, concludes the question; because we are aware of no authority (and none such has been suggested) which affects to impose a limit beyond which the Courts shall not proceed, in their favourable construction of wills, to carry into effect the intention of a testator.

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