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Trust fur sale.

able to realty, such as “devise," the fact that the trusts declared are only applicable to personalty will not prevent the real estate from passing. Doe d. Burkitt v. Chapman,

v 1 H. Bl. 223; Dunnage v. White, 1 J. & W. 583; Stokes v. Salomons, 9 Ha. 75; Lloyd v. Lloyd, 7 Eq. 458; Longley v. Longley, 13 Eq. 133. Real estate will pass even if there are

no words technically appropriate, and the trusts declared are not literally applicable to realty, if they can be held popularly applicable. Saumarez v. Suumarez, 4 M. & Cr. 331 ; D'Almaine v. Moseley, 1 Drew. 632 ; Morrison v. Hoppe, 4 De G. & Sm. 234.

Thus the words “collect and get in” will not prevent realty from passing. Hamilton v. Buckmaster, L. R. 3 Eq. 323.

So, too, if the trust is for sale or investment, the inapplicability of the subsequent trusts to realty is immaterial. O'Toole v. Browne, 3 E. & B. 572; Streatfield v. Cooper, 27 B. 338; Fullerton v. Martin, 22 L. J. Ch. 893; Dobson v. Bowness, 5 Eq. 404. See, too, Affleck v. James, 17 Sim. 121.

If, however, the gift is to trustees, their executors, administrators and assigns, on trusts exclusively applicable to personalty, real estate will not pass. Doe d. Spearing v. Buckner, 6 T. R. 610; Pogson v. Thomas, 6 Bing. N.

C. 337; Coard v. Holderness, 20 B. 147. Estate It has sometimes been said, that if the words with coupled with words which the word “estate” is coupled are not sufficient to insufficient

carry all the personal property, estate will be confined personalty. to personalty. See Tilley v. Simpson, 2 T. R. 659 1. ;

D'Almaine v. Moseley, 1 Dr. 632. The rule appears, however, to be unsupported by actual decision, and has been disapproved of. See Loftus v. Stoney, 17 Ir. Ch. 178; Re The Greenwich Hospital Improvement Act, 20 B. 458.

At any rate, where there is a prior devise of lands a gift

to pass

may die possessed

of.

of the “rest and residue of my estate,” or “all other my estate,” though coupled with words which would not alone carry all the personalty, will carry realty. Scott v. Alberry, Com. 337; 8 Vin. Abr. 229, pl. 14 ; Fletcher v. Smiton, 2 T. R. 656.

Of course where the testator shows that he uses the word estate as equivalent to effects, only personalty will pass.

Timewell v. Perkins, 2 Atk. 102; Doe d. Hurrell v. Hurrell, 5 B. & Ald. 18. 2. A devise of “real estate of which I

may

die seised ” Seised. will not pass lands which at the testator's death are in the wrongful possession of strangers. Leach v. Jay, 6 Ch. D. 490 ; 9 Ch. D. 42.

3. The words “ whatever I may die possessed of” alone What I would probably carry realty.

At any rate this is clearly the case where they are coupled with words sufficient to carry the whole personalty. Evans v. Jones, 46 L. J. Ex. 280.

It makes no difference that the person to whom the gift is made is also appointed executor. Pitman v. Sterens, 15 East, 505; Wilce v. Wilce, 5 M. & P. 682; 7 Bing. 664; Thomas v. Phelps, 4 Russ. 348.

Monk v. Maudsley, 1 Sim. 286, and Cook v. Jaggard, L. R. 1 Ex. 125, were both cases before the Wills Act in which the question was whether the words, “ whatever I die possessed of,” would pass the fee to a devisee to whom specific devises for life and in tail had already been made.

4. The words “ all the rest,” though following gifts of all the personalty, will pass realty. Atree v. Atree, 11 Eq. 280; Smyth v. Smyth, 8 Ch. D. 561.

5. The word effects primâ facie will not pass real Effects. estate. Doe v. Dring, 2 Mau. & S. 448; Doe d. Haw v. Eurles, 15 M. & W. 450; see, however, Smyth v. Smyth, 811 pra; A.-G. of British Honduras v. Bristone, 50 L. J. P. C. 15.

rest.

But the testator may show that he intended realty to pass by the word effects, by referring, for instance, to property including realty as “such effects.” Marquis of Titchfield v. Horncastle, 2 Jur. 610; Milsome v. Long, , 3 Jur. N. S. 1073.

The words effects both real and personal will pass realty.

Hogan v. Jackson, 3 B. P. C. 388; Cowp. 299.
Chattels. 6. On the other hand, chattels real and personal, prima

facie, will not, unless explained by the context. Grayson
v. Atkinson, 1 Wils. 333.

7. The expression worldly goods of what nature and kind soever passes realty. Wright v. Shelton, 18 Jur. 445.

8. The appointment of a person executor of the testator's property has been held sufficient to give him the fee in real estate. Doe d. Hickman v. Haslewood, 6 A. & E. 167; Doe d. Pratt v. Pratt, ib. 180; Murphy v. Donelly, I. R.

4 Eq. 111. Locality of 9. For the construction of bequests of personalty depersonalty.

scribed with reference to a particular locality, see Earl of Tyrone v. Marquis of Waterford, 1 D.F. & J. 613; Ashton v. Horsfield, 2 Jur. N. S. 193; 6 ib. 355; In bonis Ering, 50 L. J. P. 11.

2

161

CHAPTER XIX.

THE EFFECT OF A DEVISE IN GENERAL TERMS.

I. FREEHOLDS.

of a

IN wills, prior to the Wills Act, a residuary devise Operation included only lands possessed by the testator at the date general of his will, and of which he had not attempted to make device on

freeholds any disposition by his will.

before the

Wills Act. It included, therefore, the reversion in lands in which partial interests only had been previously given. Rooke v. Rooke, 2 Vern. 461; 1 Eq. Ab. 210, pl. 17; White v. Vitty, 2 Russ. 484; 4 Russ. 584.

And in the case of contingent and executory devises it included the interest undisposed of in the event of those devises not taking effect, or until they took effect, but not lapsed or void devises. Doe d. Wells v. Scott, 3 Mau. & S.

. 300; Egerton v. Massey, 3 C. B. N. S. 338.

Now by the 25th section of the Wills Act, real estate comprised in any devise which shall fail or be void shall be included in a residuary devise.

And by the 24th section every will shall be construed Wills Act with reference to the real and personal estate comprised will speak

makes the in it, to speak and take effect as if it had been executed from the

death. immediately before the death of the testator, unless a contrary intention shall appear by the will.

The section probably does not apply to property excepted out of a devise. Thus, where a testator excepts from a devise property subject to the trusts of a settlement, and afterwards conveys other property upon the trusts of the settlement, the latter property is not excepted from the devise. Hughes v. Jones, 11 W. R. 898; 1 H. & M. 765.

M

Use of the word

What is a A contrary intention is not sufficiently manifested by a contrary intention. gift of the freeholds, “ to which I am entitled,” though there

may be a subsequent devise of copyholds “to which I am or at the time of my death shall be entitled.” Ld. Lilford, v. Powys Keck, 30 B. 300.

The fact that the testator gives property he“ now” pos"now." sesses, or that the property is described as "now"charged

with certain sums, will not exclude after acquired property. Wagstaf v. Wagstaff, 8 Eq. 229; Hepburn v. Skirving, 4 Jur. N. S. 651; In re Ord; Dickinson v. Dickinson, 12 Ch. D. 22.

But if the testator expressly distinguishes between the two periods by giving such freeholds and leaseholds as are now vested in me, or as to the said leasehold premises as shall be vested in me at the time of my death,” the word now must be referred to the date of the will. Cole v. Scott, 1 Mac. & G. 518; 1 H. & T. 477. See pp. 98 and 150.

II. REVERSIONS.

Reversions 1. Reversions, whether vested in the testator at the pass under a general time of making his will or remaining in him after the devise.

limitations of his will are exhausted, pass by a general devise of lands. Chester v. Chester, 3 P. W. 56; Doe d. Moreton v. Fossick, 1 B. & Ad. 186; Mostyn v. Champneys, 1 Scott, 293; 1 Bing. N. C. 341.

1 Devise of 2. A devise of lands not settled, or out of settlement, lands not settled is equivalent to a devise of lands not otherwise disposed includes a

of, over which the testator has absolute dominion, and reversion in settled will therefore pass a reversion in fee in settled lands, lands,

though the testator may confirm the settlement. Incorporated Society v. Richards, 1 Dr. & War. 258 ; Chester v. Chester, 3 P. W. 56; A.-G. v. Vigors, 8 Ves. 256 ; Jones v. Skinner, 5 L.J. Ch. 87; Kelly v.Dufy, 4 L. R. Ir. 601.

A charge of annuities upon the lands passing by the general words will not exclude reversions. Doe d.

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