Fearne C. R. 390. (162.) Litt. 586. Shifting Uses to arise out of a seisin united with the beneficial ownership can have no place in the interpretation of a Will. For to this posthumous mode of conveyance the law has indulged the creation of future and contingent estates, under the name of Executory Devises, according to a system analogous in other respects to that of Springing and Shifting Uses, but with this difference, that the gift by Will is allowed to be direct, and independent of the interposition of a third person, which the Statute of Uses requires. And thus the question of Scintilla Juris may also be avoided. (283.) The anxiety of the Courts to give effect to the intention of the Testator induced them in early times, in their decisions upon devises by Custom, to dispense for the most part with those technical words which are required for the limitation of Estates by Deeds, and the same practice has been generally followed since the Statutes of Wills. Reasonable, however, as the indulgence may at first sight appear, the inconvenience which has ensued from it is far more extensive and important than the mischief which it was intended to prevent. The mischief of greater strictness would have been, that the right conferred by the Statute would be forfeited by ignorance, while the inaccuracies of the Testator would have redounded to the benefit of his heir. The actual inconvenience has been the continual vexation of our Judges of Law and Equity with nonsense which they must interpret, and absurdities which they must make consistent; the consequent accumulation of precedents, which sometimes assist and sometimes hamper their endeavours; and the uncertainties of right, which no private learning or judgment can decide. It must be owned, however, that no part of our legal system displays more ingenuity than that which relates to the interpretation of Wills, of which only a few outlines can be expected in these pages. The observations here following relate to the subject of the present Chapter, Estates in Fee Simple. (284) In the first place, it is clear that a Devise of Lands, Tenements or Hereditaments, or the Rest and Residue of the Testator's Hereditaments, to A. without any expression or hint of the Estate which he is to take therein, gives him only an Estate for his life. It has been remarked that this rule generally contradicts the Testator's intention; and there seems to have been no good reason for its original introduction, but such as would have applied equally to other technical rules. (285.) Nor will the bequest of other property to the Testator's heir at law be a sufficient indication of an intention to disinherit him of the reversion of that which is given to A. (286.) But a Devise of all the Testator's Estate, or Interest, or Property, in any Lands, &c. to 4. will give him the Fee. So, all the rest of his Estate, or of his Effects, both real 7 East, 259; Harding v. Gardner, 1 B. & B. 72. Roe v. Wright, and personal. (287.) So his Estate at or of such a place, or called by such a name, or consisting of so many acres ; notwithstanding that these expressions may appear to indicate rather the Land itself than the interest in it. (288.) So Paris v. Miller, the word Part or Share, as denoting the Testator's interest, carries the Fee. (289.) Yet the words Perpetual Advowson, as being only descriptive of the thing devised, have been held not to imply a gift of the inheritance. 5 M. & S. 408. Pocock v. Bp. of Lincoln, 3 B. & B. 27. 4 Bac. Ab. 250, 251. (290.) A Devise to A. in fee simple, or to him for ever, or to him and his successors, or to him and his blood, or to him and his, or to give, sell, or do what he pleases with it, gives him the Co. Litt. 9.b; Fee. (291.) So likewise if the gift to him be charged with any payment or burden, in consequence of which he might be a loser if the interest ceased with his life; but this can only be where the charge is not thrown entirely upon the lands devised, but affects the person of the devisee. and Harg. n. 2; (38.) (292.) And if the devise be in* trust for pur (293.) It sometimes happens that lands are devised to two or more persons, and the heirs of the survivor, upon trust to sell or mortgage them, &c. The words would not, independently of the trust, make the Devisees Joint. tenants in fee; for indeed they exclude one of the essential properties of Joint-tenancy, viz. the power of making Partition, or of otherwise severing the Jointure, in consequence of which each person's share might descend to his own heirs, instead of going to the heirs of the survivor. But it seems now to be generally agreed that notwithstanding this defect in form, the evident intention of the tes 1 B. & C. 342. See 6 B. & C. Us. 244, &c. poses which require an unlimited power of alienation, the Trustee takes a fee simple. (294.) But on the other hand, expressions, which if used in a devise to a person for his own benefit would carry the fee, may perhaps be otherwise construed in the case of Trustees; the general rule being, that they shall take no greater estate than is required for the purposes of the trust. 421. The application of this rule is often attended See 1 Sand. with difficulty. (295.) If lands be devised to A., and if he die Doe v. Cundall, under age then to B., this gives the fee in the first place to 4. with an Executory Devise, in the event specified, to B. For if it were intended that A. should in all events take the land for his life only, there appears no reason why the gift to B. should be confined to that contingency, (296.) And it may here be observed that if the Bromfield v. Devise be to A. if or when he shall attain his 1 N. R. 313. age of twenty-one years, and if he die under that age to B., yet the estate vests in A. during his minority; for the first words of condition or tator is sufficient to give the fee simple to the Trustees jointly. For if not, the inconvenient consequence must follow, that they are tenants for their lives only, with a contingent remainder in fee to the survivor; which remainder, while it is contingent, cannot by any means be conveyed; and though a Fine would extinguish it, that, it seems, would be for the benefit of the Testator's heir at law, if he refused to concur in the Assurance; though it is evident that no such advantage was intended him. See Fearne C. R. 357. Butl. Co. Litt. 191. a. n. 1. 9 East, 400. Crowder, See 2 Swanst. 442. (48.) (33.75.) Cowp. 660. 255; 6 T. R. 41. But see See Right v. Doe v. Frost, (286.) 4 B. & C. 623, 624. contingency are used only to introduce the second, and not to suspend or defer the gift. (297.) Words which of themselves would not be sufficient to carry the fee simple are sometimes aided by an introductory clause, showing the Testator's intention to dispose of all his property. (298.) And where it is evidently intended that each of several persons should take 1 B. & C. 638. the same degree of interest, and directions are given concerning one of them, which presuppose that he takes the fee, the implication extends to them all. (299.) On the other hand words indicative of the fee, such as "all my Estate," may be satisfied without conferring the inheritance on the object of an indefinite devise, if they can be referred to another devise which is expressly in fee simple, though it be a nugatory one to the Testator's own heirs. (300.) And indeed it is seldom safe to rely on any particular expression, without considering the whole import of the Will. (60. 14.) (36.) Co. Litt. 15. SECT. 5.--Of Descent, Curtesy, and Dower. (301.) Ir a person die seised in fee simple, otherwise than as a Joint-tenant, of Lands or Tenements, which he has not disposed of by Will, they will descend to his Heir. (302.) The Seisin here meant is either actual, which supposes entry into Land, or something analogous to such entry with respect to incorporeal Tenements; or it is virtual, which con |