third person for life, creates an estate in fee: but it is Life of the otherwise where the annual payment is only to con- Devisee. tinue during the life of the person to whom the land is devised. c. 11. § 64. 34. A person devised lands to D. his wife, yielding Ager v. Poole, and paying therefore yearly during her natural life, Dyer, 371. to the right heirs of his father, forty shillings, &c. The Court was of opinion that D. took only an estate for life. Estate when tion. 35. It has been stated in a former chapter, that the The word word estate will create a fee simple, when it appears descriptive of to have been used by a testator to denote all his local Ŝituainterest in the lands devised; but where it have been used as descriptive of the local situation of § 25. the lands devised, it will then pass only an estate for life. appears to ante, c. 11. Painter, 36. Upon an appeal to the King in Council from a Chester v. decree made in the Island of Antigua, the case was:A person having real and personal estate, gave and 335. bequeathed one third part of all his estate whatsoever to his wife Ann; and devised to his son John, and to his heirs, two thirds of all his real and personal estate. It was determined by Lord Ch. J. Raymond, Sir J. Jekyll, and Lord Ch. J. Eyre, that the wife took only an estate for life; the word estate being rather a description of the thing itself, than of the testator's interest in it: and by the next clause it appeared, that where the testator intended to give a fee, there he took care to add the word heirs to the word estate. 37. A person having devised his estate to his nephew Thomas Hutton and his heirs, added these words:-"And if my said nephew shall have no issue male, then my said estate shall go to the daughter or daughters of my brother Richard, and to the daughter Rogers v. Briggs, Goodright v. 11 East, 220. The word Hereditament. 5 Term R. 559. 8 ld. 503. or daughters of my brother Mathew, remainder to his right heirs." The question was, whether by the devise to the daughters of Richard and Mathew, an estate in fee or for life passed. The Court was clearly of opinion that an estate for life only passed to the daughters: for as it was argued that although in wills the word estate was sufficient to carry a fee, yet in this case, where the consequence was the disinheriting an heir at law, a fee should not pass thereby, unless the intent of the testator was very plain and apparent for that purpose. That the intent was not so apparent as to force the Court to put such a construction on the devise to the daughters as was insisted on; but on the contrary, from the contexture of the whole will, it seemed plain that the word estate was always, and particularly in the devise in question, used as descriptive only, and synonymous with lands; so that here it would be putting a force on it to make it carry a fee. And besides, the devise over to the testator's heirs showed that he thought he had a farther interest to dispose of, after the devise to the daughters, to whom he did not seem to intend so much as an estate tail. Judgment that the daughters of Richard and Mathew took only estates for life. 38. The word hereditament only creates an estate for life in a will; for it does not denote the measure or quantity of the estate, as it has a proper and appropriate meaning, and extends to annuities, advowsons in gross, and many other things. 39. There are several other cases where an estate for life only has been held to pass by a devise, which will be stated in the next chapter. tention re 39. Although an estate be devised to a person and Where the the heirs of his body, yet if the general intention of general Inthe testator can only be carried into effect by con- quires it. struing the words heirs of the body to be words Leonard of purchase, the devisee will only take an estate for infra, c. 14. life. v. Sussex, 40. A person devised to his son B. J. and his heirs Lowe v. lawfully to be begotten, that is to say, to his first, Davies, 2 Ld. Raym. second, third, and every son and sons lawfully to be 1561. begotten of the body of the said B. J. and the heirs of the body of such first, second, third, and every son and sons successively, lawfully issuing; and in default of such issue, then to his right heirs for ever. 11 East, 668. It was resolved that B. J. took only an estate for Doe v. Goff, life, the word heirs being fully explained by the subsequent words, to be a word of purchase. 41. Lands held in gavelkind were devised to Ann Doe v. Laming, Cornish and the heirs of her body lawfully begot- 2 Burr. 1100. ten or to be begotten, as well females as males, and 1 Black. R. to their heirs and assigns for ever; to be equally divided, share and share alike, as tenants in common, and not as joint tenants. in Lord Mansfield said, that the devise could not take effect at all, but would be absolutely void, unless the heirs of the body of Ann Cornish took as purchasers. The lands devised were gavelkind, and it was manifest the testator did not mean that his estate should go a course of descent in gavelkind, for he gave it to the heirs of the body of Ann Cornish, as well females as males; therefore they could not take otherwise than as purchasers. It would be a void devise if the words were to be construed as words of limitation; for the testator breaks the gavelkind descent, by giving it to females as well as males. He like Ꮓ Ꮞ 265. wise added, "and to their heirs and assigns for ever to be divided equally share and share alike." Nay, he went farther, "as tenants in common and not as joint-tenants." But this could not be, if they were to take in a course of gavelkind descent, for in such case they must take as coparceners. Upon the whole, as no man could doubt of the testator's intention, and as this was the only method of effec tuating it, and as there was no rule of law that prevented heirs taking as purchasers, where the intention of the testator required it, so he was of opinion that the words, heirs of the body, were words of purchase. Judgment was given accordingly. 42. A person devised to his niece M. O. and the issue of her body, lawfully to be begotten, as tenants in common if more than one; but in default of such issue, or being such, if they should all die under the of 21, and without leaving lawful issue of any of age 11 East, 668. their bodies, then over. What words for Years. Tit. 8. c. 2. § 27, The Court of K. B. held, that the niece only took an estate for life. 43. An estate may be devised to a person for a create a Term term for years, as well as for any freehold estate; and it has been stated in a former title to have been held, that a devise of lands to a person and the heirs of his body for 500 years, would determine by the death of the devisee without issue; but that this doctrine had been altered, and it was settled that such a term would continue for the 500 years, and vest in the executors of the devisee. Tit. 8. c. 1. § 7. 44. It has also been stated, that a devise to executors for payment of debts creates an estate for years; and also a devise till such time as a particular sum shall be raised out of the rents and profits of the lands devised. certain 45. With respect to uncertain interests, if a man And undevises lands to his wife till his son comes of age, to Interests. provide his children with necessaries, this interest Smith v. does not determine by the death of the wife, but goes Cro.Eliz.252. to her executors. Havens, 221. 46. If the devise had been that his lands should An. 2 Leon. descend to his son, but that his wife should have the full profits till his son came of age, for his maintenance; here nothing being given to the wife but a mere confidence, her interest would determine with her death. 47. In a case which has been already stated, it Mansfield v. Dugard, was resolved that the wife's estate determined by the Tit. 16. c. 1. death of the son. § 84. |