lessee. Under the old law, if a testator died, seised of an estate in fee simple, and possessed of leaseholds, and he simply devised all his lands and tenements, the leaseholds did not pass; but if he had no lands but leaseholds, then they would pass, in order that some effect should be given to the will.' 'S. 29. The old law has been thus stated by Lord St Powers to appoint. Leonards (a): "It is already settled that a general devise or bequest will not, independently of the late statute, operate as an execution of a power; but it is also settled that where a testator disposes of real estate, not having any other than what is subject to the power, he is in such cases to be taken as dealing with that estate; and that as to both realty and personalty, if the court is satisfied by the manner in which the particular property is referred to, the testator intended to deal with that property, the disposition will be a valid execution of the power." Under the new law the burden of proof as to intention to exercise the power, is the reverse of the old law. This section is confined to general, and does not extend to special or limited, powers. Thus a power to appoint to children is not within the Act (b) only a power to appoint by will is within this section. By the joint effect of section 26 and this section, a will may operate as an execution of all general powers vested in the testator after making the will (c).' 'S. 30. The language of the old Act of 4 Wm. IV, is much General deas in this section, except that here the words " without words vise passes of limitation" are introduced. Before that Act a devise to A, simply, would pass no more than a life-estate, unless it appeared that the testator intended to devise a larger or other estate. By this section the burden of proof is shifted, and on such devise the fee or whole estate of the devisor will pass, unless intention to the (a) Lake v. Currie, 2 De G. M. & G., 547. (b) Cloves v. Audry, 12 Beav. 604. (c) Patch v. Shore, 2 Dr. & Sm. 589. whole estate. The Act does not apply to contrary appears (a). It will be for those who contend for a restricted effect of the will to make out the intention. The Act only applies to estates and interests existing in estates created the testator, and not to those first created by the will. Thus, de novo, by the will, as on de- a devise to A of a rent charge held by the testator in fee will vise of an secured by annuity to A, pass the fee; but if the testator devise to A an annuity first created by the devise, and charge it on his land, A will take but a life-interest (b).'. way of rent charge. Instances wherein before nite devise would be enlarged to a fee. The principles and rules of construction which govern unthe Act indefider the old law in determining as to whether a fee or lifeestate only passes, are yet important in ambiguous wills. Even before the Act of William an indefinite devise would be enlarged to a fee by the imposition of a charge, however small, on the person of the devisee, as on a devise to A “he paying my debts :" or on the quantum of the estate devised' as on a devise of lands to A, "my debts being paid thereout:" but not if the lands were first expressly charged, and the devise was merely subject to the charge (c). So also, if there were a gift over on the devisee dying under a specified age (d); or under age and without issue (e).' The words like. 'S. 31. Before this section became law the words "die withissue" and the out issue," and the like, with certain exceptions, if there were nothing in the context to vary the construction, imported as to devise of realty, an indefinite failure of issue to remotest descendants, and was not confined to failure of issue on the death of the person whose issue was referred to. Thus, a devise to A, or to A and his heirs, or to A for life, with a limitation over on death of A without issue, was by implication construed as a gift to A and his descendants, with a (a) See Farrell v. Farrell, 26 U. C. R. 652, as to an indefinite devise passing the fee, and the circumstances which favour such construction. (b) Nichols v. Hawkes, 10 Hare, 342; Reay v. Rawlinson, 7 Jur. N. S. 118. (c) Doe d. Stevens v. Snelling, 5 East, 87, 08, per Le Blanc, J.; Doe d. Sams v. Garlick, 14 M. & W. 698, per Parke B.; Burton v. Powers, 3 K & J. 170; Ingalls v. Arnold, 14 Q. B. U. C. 296. (d) Burke v. Annis, 11 Hare, 232; Frogmorton v. Holyday, 3 Burr. 1618; Doe Wight v. Cundall, 9 East, 409. (e) Toovey v. Bassett, 10 East, 460.. remainder over on failure of descendants. This was held to be an estate tail, and was probably so held as otherwise the gift would be void for remoteness as tending to perpetuity; an infringement of a rule we have already considered. By construing the gift as an estate tail, however, de objection as to remoteness was removed, as the entail could be barred and converted into a fee simple, and so capable of alienation. If the failure of issue had been confined to the period of the death of A, then he would have taken a fee simple, with an executory gift over defeating such estate in case he had no issue living at his death. It is manifest that such an estate in A is less beneficial than an estate tail with a remainder over, as the latter estate can be barred and indefeasibly conveyed, whereas the former cannot, and no certain title made to it. There were many and different exceptions to the rule founded on the context of the will; it did not apply to personalty, as no estate tail can be given as to personalty, and so the failure of issue was confined to death. It is said (a) to have been held, that as this section is expressly confined to the word " issue," it makes no change in the meaning of the expression "die without heirs of the body" (b). Where a testator by a will, governed by this section, devised to his daughter" and her lawful heirs," "but in case she should not happen to have any child" then over, it was held she took a fee simple with an executory gift over (c). Nor will the Act apply if the words are combined with others, such as "dying under twenty-one." tee or execu 'S. 32. There were many instances in which trustees took Devise to trusno greater estate than absolutely necessary for the perfor- tor. mance of their trust; thus, on devise to executors, until debts were paid, or until such time as a particular sum (a) Shelford Stats. 8 ed. 531. (b) Re Sallery, 11 Ir. Ch. R. 298; Harris v. Davis, 1 Coll. 416; Dawson v. Small, L. R. 9, Cha. App. 651. (c) Matthews v. Gardner, 17 Bea. 254. Devise to trustee. Estates tail and gifts to issue not to lapse. should be raised out of annual rents and profits, the devisees took only an estate for so many years as might be necessary to perform the trust; now they take in such cases the whole estate of testator (a).' 'S. 33. It was a rule before this section, that where there was a devise to trustees, though with words of inheritance, prima facie the trustees took by implication only so much of the legal estate as the active purposes of the trust required. Thus, on a devise to A and his heirs on trust to pay an annuity out of the annual rents and profits only, to B, and subject thereto in trust for C in fee, A took the legal estate only during the life of B by implication; under this section he takes the fee (b). The question under wills not governed by this section is of importance with reference to the rule in Shelley's case. Thus, on a devise to A and his heirs, in trust to receive and pay the rents and profits to B for life, and after his death, in trust for the heirs of his body, the question arises whether the remainder to the heirs is a legal or equitable remainder. If it be the latter, then, as it coalesces with the equitable estate for life, B takes an immediate equitable estate tail, which, as explained in treating of such estates, he can convert into an equitable fee simple, and by calling on the trustee to convey the legal estate, convey a legal fee simple. It is settled that under the rule first above named, A, takes only during life of B, that the remainder to the heirs is a legal remainder, and consequently cannot coalesce with the equitable life estate and operate under the rule in Shelley's case to give B either the legal or equitable fee, and that the heir takes as purchaser the legal estate in tail (c).’' 'S. S. 34, 35.---The doctrine of lapse was before referred to (d). Under a devise to A and the heirs of his body, the word "heirs" was a mere word of limitation, shewing the estate A. was to take, and if A. died in the lifetime of testa (a) See Hawkins' Wills 241; Shelford Stats. 8 ed. 531. (b) Hawkins' Wills, 157. (c) Hawkins' Wills, 143. (d) Ante, p. 412. 上 tor, a lapse took place notwithstanding his issue were living and survived the testator. The Act does not apply unless in cases where before the Act there would have been a lapse; therefore, on gifts to children as a class, the death of a child will cause no lapse as to its share, and it will go to the survivors (a). Nor does section 35 extend to wills made in execution of special powers of appointment, as on a gift for life, with power to the donee to appoint by will among his children; here section 35 will not prevent a lapse if a child to whom an appointment is made die in the lifetime of the appointor, (b) though he leave children alive on the death of the appointor. This section does not substitute for the predeceased donee, the issue whose existence is the event or condition which prevents the lapse, but renders the subject of the gift the absolute property of such donee, and, therefore, it may be disposed of by his will, notwithstanding his death in the lifetime of the testator (c). The provisions of the Act under which the issue of a child who died in the lifetime of testator take, render it necessary, if this be not intended, that the effect of the Act be negatived by gift over in case of death of the child in the testator's lifetime, or otherwise (d).' (a) Olney v. Bates, 3 Drew, 323. (b) Griffiths v. Gale, 12 Sim. 354. |