1849. SANDERSON V. DOBSON. effect of Lord Hardwicke's doctrine. The court of Exchequer further say: "It may be right to add, that there are two clauses in the will which appear to us strongly to confirm our view of the case. In the first place, the gift is to Robson and Sleigh, their executors and administrators, and not to their heirs; and, though, no doubt, a gift of real estate to trustees and their executors, would be sufficient to carry the fee, yet the omission of the word 'heirs' is certainly indicative of an intention to confine the operation of the clause to personal property: more especially as, in the prior parts of the will, where he is devising his real estate at Middleham, the testator uses the appropriate language, and devises to the same trustees, their heirs and assigns.' The other observation which occurs to us, as shewing that the real estate was not contemplated, -is, the expression 'wheresoever the same shall be at the time of my death.' It is difficult to affix any rational meaning to these words, except on the assumption that the subjectmatter of the gift was something the locality of which was or might be variable; and this can only be done by holding that the gift was confined to personal chattels, properly so called." The circumstance of the testator having used the words "executors and administrators," instead of "heirs," is hardly of sufficient gravity to need an argument; it clearly shews no intention to exclude the realty. And the other words relied on by the court of Exchequer, would be applicable, if the expression used were, "real estates." - This very point was decided, as was before observed, in the case of The Mayor, &c., of Hamilton v. Hodsdon (a), in the privy council. There, the testator, by his will, gave to J., his heir-at-law, an estate for life in one part of estate P., an estate during viduity (a) 11 Jurist, 193. to his wife F. A., in the other part of estate P., remainder to N. in tail, remainder to the testator's daughters, for life; and, after giving certain specific chattels to his wife, F. A., he proceeded as follows:"I give all the remainder of my estate, that is now in my possession, or may hereafter be mine, excepting what I have particularly given away, unto my wife, F. A.: and it is my will, that, whatever my estate may consist of, after debts and legacies are paid, that it be kept together," &c. N. died without issue. The heir-at-law of J. sold estate P. to the appellants, subject, as to part, to the daughters' estate for life. In a suit between the appellants and F. A.'s co-heiresses, it was held that the remainder in fee in estate P. passed to her under the residuary clause, there being nothing in the context of the will to confine the natural and legal meaning of the word "estate" to personalty merely. Lord Brougham, in giving the judgment, there says: "The real meaning of the word 'estate' is not real estate,' but 'real' plus 'personal,' and so, reddendo singula singulis, these words, which are to be restricted words, because they only apply to personal estate as they include future acquisitions, which would not, in the case of lands, pass under such a gift. (a) As the words are not intended to be used as excluding personalty, those words which are added here will apply to the personal part of the estate; and it does not follow on that account, that, because there is personalty whereon they can operate, therefore the realty is to be excluded. Now, I might shew by several cases which have been mentioned at the bar, that that is the law upon the subject. Perhaps the one which shews it most clearly is Barnes v. Patch (b), because there the Master of the Rolls, commenting on what is laid down in an early case 1849. SANDERSON v. DOBSON. 1849. SANDERSON v. DOBSON. by Lord Holt (Lady Bridgewater v. The Duke of Bolton (a)) says: "The word 'estate' is genus generalissimum, and includes all things real and personal. I admit that it has been so qualified by the context as to bear a narrower signification; as in Doe d. Spearing v. Buckner (b), where the words were held insufficient to carry real estate, not as being of themselves insufficient to pass land, but, upon the context of the will, personal estate only being in contemplation of the testator. In Shaw v. Bull (c), Lord Chief Justice Trevor, says: 'generally, the words my estate, the residue of my estate, or the overplus of my estate, may pass an inheritance, where the intent is apparent to pass it.' But that is no longer law. The law is not now, that the word 'estate' will not pass the realty, or realty together with personalty, unless there is an intent so to do: it is just the other way; it is, that it will pass the realty as well as the personalty, unless there be matter apparent to shew that the intent is that it shall not pass the realty. The report is here very inconveniently loose; for, it goes on, as if the Master of the Rolls was arguing, as follows:'But such intent to carry an inheritance by such words must be very apparent, and necessary to be drawn from the words of the will and circumstances of the case; for, if the words be indifferent to real and personal estate, or may be applied to personal alone, there the heir-at-law is not to be disinherited by the implication of such words, or any implication at all, but what is a necessary one.' (d) When I read this first, seeing that it was not in inverted commas, I was astonished for, really, considering this was in 1808, it looked much more as if it was in the time of the early cases, when the law was not so settled as it is now. I will not say very different, but, at all events, not so : (a) 1 Salk. 236. (c) 12 Mod. 592. (d) Vide 4 M. & R. 71 (d). settled; but, when I came to the next sentence, I saw it was a mistake of Mr. Vesey's, in not putting inverted commas; for, there should be inverted commas, just as there is in the former part of it. This is Chief Justice Trevor's, argument, not Sir W. Grant's. Sir W. Grant goes on as follows: 'But the doctrine of modern cases is, that, where there is nothing to qualify the word 'estate,' it will carry real as well as personal estate; and the contrary intention ought to appear, to induce the court to put upon that word a less extensive signification than it naturally bears.' So that he says you must prove the negative in such a case, not regarding, of course, anything dehors; but, the words themselves proving the intent, the proof must be thrown on the other side, and the intent to restrain must be established by the context- the rest of the instrument; otherwise, in a will, it would pass the realty." Saumarez v. Saumarez (a) shews that the natural effect must be given to general words, unless there be a clear and manifest intent to the contrary on the face of the will. From the time of Lord Hardwicke, therefore, to the present time, we have a uniform series of decisions, that "estate" will, of itself, suffice to carry realty, unless there be, upon the face of the will, a clear indication of intention to the contrary. Here, it is true, the word "estate" is accompanied by words of personalty. These, however, are of themselves sufficiently satisfied by applying them to the rest of the testator's property. Malins (with whom was Fleming), contrà. The decision of the court of Exchequer (b) is based upon this sound and intelligible principle, that, in ascertaining the intention of the testator in the use of the ambiguous expression "estate," regard must be had to the whole of 1849. SANDERSON V. DOBSON. 1849. SANDERSON บ. DOBSON. the context. It is material also, with this view, to look at the situation of the testator. He had, at the time of making his will, real estate in possession, which he had contracted to sell; and he had the interest in question, which was a remote reversion in fee. It is imputing to him, therefore, a somewhat strange intention, to say that he meant, by the words in question, to pass a remote reversion, rather than an estate in possession. It is evident that he knew how to deal with real estate. [V. Williams, J. He gives an estate for life to heirs, executors, &c., and estates per auter vie, without impeachment of waste, -shewing that he had no knowledge of law.] When dealing with realty, he always uses the word "heirs." It is to be presumed, therefore, that, if he had intended to dispose of this property, he would have used appropriate terms. In all the cases cited on the part of the plaintiff, where the word "estate," though associated with words more appropriately descriptive of personalty, has yet been held to carry the realty, it has occurred in a residuary or a universal devise; where, therefore, it was necessary to give the word the widest construction of which it was susceptible, in order to carry the testator's intention into effect. The clause now in question begins with forks and spoons and then it goes on," And I give all the rest of my household furniture, books, linen, and china, (except as hereinafter mentioned), goods, chattels, estate, and effects, of what nature or kind soever, and wheresoever the same shall be at the time of my decease, unto the said John Robson and Jonathan Sleigh, their executors, administrators, and assigns, in trust, as soon as conveniently may be, to sell and dispose of the same, and to apply the money by such sale arising, towards payment of my debts, and the legacy hereinafter mentioned, and to pay the surplus (if any) to my said |