v. DOBSON. sisters Margery Stapylton and Martha Stapylton." The 1849. testator is here evidently dealing with his household chattels only, and clearly did not contemplate or intend SANDERSON to deal with anything else. [Maule, J. It is plain that that clause did not, in his apprehension, include his ready money and securities for money, for, these he disposes of by the next clause.] In truth, all the expressions after the words "household furniture, books, linen, and china," are redundant and idle. The use of the words "executors, administrators," &c., are no further important than this, that, where you find expressions that are primâ facie applicable to personalty only, you require something more to shew that realty was intended to be included. The words "whatsoever and wheresoever" fairly justify the comment made upon them by the court of Exchequer, and also tend strongly to the same conclusion. Jongsma v. Jongsma and Doe d. Evans v. Evans were both cases of universal devise. In Woollam v. Kenworthy (a), the word "estate" in a residuary clause was restricted to personal property, by the controlling effect of the context, although the will contained a specific devise of lands. So, in Bebb v. Penoyre (b), real estate was held not to be included in a devise of the rest and residue, on the ground of the restraining effect of the immediate context, although there was a previous devise of land in the same will. Lord Ellenborough there says: "Upon the meaning of the residuary clause, there can be no doubt. After giving several pecuniary bequests, the words are, I order the lease of my house, &c., to be sold, and all the rest and residue to be divided, &c.' Order whom? He must have meant his executors immediately afterwards named, by whom the lease of his house, &c., was to be sold. The words rest and residue, therefore, in the place in which they stand in 1849. SANDERSON V. DOBSON. - this will, and so accompanied, must mean property of a similar nature to the lease of the house and furniture before mentioned, that is, his personal estate." In Timewell v. Perkins (a), the testator devised in these words, "All those my freehold lands, with the messuages, &c., now in the occupation of L., and all other the rest and residue and remainder of my estate, consisting in ready money, plate, jewels, leases, judgments, mortgages, or in any other thing whatsoever or wheresoever, I give unto A. H. and her assigns for ever." In the preamble of the will occurred the clause, "as touching the personal estate with which it hath pleased God to bless me, I dispose thereof as follows." The question was, whether land, not described in the will, passed under the residuary clause. Fortescue, J., held that it did not, relying on the analogy of the case to Wilkinson v. Merryland. (b) Mr. Jarman, in his Treatise on Wills (c), thus remarks upon that decision: "In the case just stated, there was a preceding specific devise of land; but the intention to confine the word 'estate' to personalty, was inferred from the subsequent explanatory words of description; which, however, were themselves followed by expressions scarcely less strong than many which have been held sufficient to include real estate. Perhaps the introductory clause, referring to personal estate only, may be considered a circumstance of distinction; but that is rendered almost nugatory by the subsequent specific devise, which carried the dispositions of the will beyond personal estate. The case of Timewell v. Perkins is unquestionably a strong case, and has generally been much relied upon as an authority for the restricted construction on subsequent (a) 2 Atk. 102. (b) Cro. Car. 447. 449.; Sir W. Jones, 380. Et vide S. C., per nom. Wilkinson v. Merdam, 1 Roll. Abr. 415. (translated, 5 Vin. Abr. 73, pl. 11.) (c) Vol. I. p. 662. occasions." Doe d. Bunny v. Rout (a) is also a strong authority: the words of the will were,-"I devise my just debts of every sort, with my funeral expenses, to be paid and properly discharged by my executrix hereinafter named; and, subject thereto, I give and bequeath unto my sister A. R. all my stock in trade, household goods, wearing apparel, ready money, securities for money, and every other thing, my property, of what nature or kind soever;" and the testator appointed A. R. executrix. This court held that an intention to pass land could not be clearly collected from these words. So, in Roe d. Helling v. Yeud (b), where the testator, after giving certain legacies, and appointing certain persons executors, added, "and to whom I give all the remainder of my property, whatsoever and wheresoever, to be equally divided amongst them, share and share alike, after their paying and discharging the beforementioned annuities, legacies, debts, and demands, or any I may hereafter make by codicil to this my will, all my goods, stock, bills, bonds, book-debts, and securities in the Witham Drainage, in Lincolnshire, and funded property." The court held that real estate did not pass; considering that the enumeration at the end of the clause was explanatory of the words "remainder of my property." In Doe d. Hurrell v. Hurrell (c), a testator having both real and personal estate, after giving several pecuniary legacies, bequeathed all the rest and residue of his estate and effects, whatsoever and wheresoever, to trustees, their executors, administrators, and assigns, upon trust, that they should, out of such residue of the moneys and effects that he should die possessed of, carry on, manage, and cultivate the farm then in his possession, for the remainder of his term therein, (a) 7 Taunt. 79., 2 Marsh. 397. (b) 2 N. R. 214. 1849. SANDERSON V. DOBSON. for the joint advantage of certain of his sons and daughters therein named; and, at the expiration of the said term, upon further trust to sell and dispose of such residue of his estate and effects, or such effects as should then be upon his said farm, and to divide the money arising therefrom among his said sons and daughters: it was held that the testator's real estate did not pass. Abbott, C. J., said: "There can be no doubt that words which, in their technical sense, generally denote personal property, will pass the real estate, if such appears from the whole of the will, taken together, to have been the intention of the testator. It is quite clear that the testator here intended that his personal property only should go to the trustees. The bequest is to them, their executors, administrators, and assigns; the word 'heirs' is not used. That circumstance is not, indeed, very strongly to be relied on; but it is not to be altogether rejected, in construing this will. The nature of the trusts clearly shews that the testator meant to bequeath his personal property only; for, the trustees are directed, out of such residue of the moneys and effects, to manage the farm for the remainder of his term. Now, the real estate was not applicable to such a purpose; for, the trustees, at all events, had no power to sell any part of the estate bequeathed to them, until the end of the term. Then, the testator directs the trustees, at the expiration of his term, to sell such residue of his estate and effects, or such effects as shall be upon his said farm. It appears to us, therefore, that, by using the latter word, he himself has furnished a comment upon the words the residue of his estate and effects; and that, by those words, he meant only such estate and effects as constituted personal property." And in Doe d. Spearing v. Buckland (a), the testator prefaced his will with these (a) 6 T. R. 610. words," As to my estate and effects, both real and (a) 15 M. & W. 450. 1819. SANDERSON v. DOBSON. |