V. LEASEHOLDS FOR YEARS. for years A general devise of lands before the Wills Act docs Leaseholds not carry leaseholds for years if there are any freeholds; before the on the other hand, if there are no freeholds, leaseholds Wills Act. may pass. Rose v. Bartlett, Cro. Car. 292; Thompson v. Lawley, 2 B. & P. 303; Gully v. Davis, 10 Eq. 562. Leaseholds will, however, pass under the description Words of description lands which the testator "then stood seised or possessed applicable of, or in any way interested in." Addis v. Clement, 2 to leaseP. W. 456. The word possessed is the important word, and leaseholds have been held not to pass under a similar devise without the word possessed. Pistol v. Riccardson, 2 P. W. 459 n.; Davis v. Gibbs, 3 P. W. 26. holds. The word farm will pass a leasehold as well as a free- Farm. hold portion, unless it is restricted by the addition of "all other my freehold lands." Lane v. Stanhope, 6 T. R. 345; Arkell v. Fletcher, 10 Sim. 299; Holmes v. Sayer Milward, 47 L. J. Ch. 522. See ante, p. 97. So, too, land held on lease and attached to a freehold house, passes under "messuages or tenements with the appurtenances." Hobson v. Blackburn, 1 M. & K. 571; Doe v. Martin, 2 W. Bl. 1148. And leaseholds pass where the devise is to certain persons to hold for ever, or otherwise according to the natures and tenures thereof. Hartley v. Hurle, 5 Ves. 540; Swift v. Swift, 1 D. F. & J. 160. The same result follows if the lands are described by acreage, which can only be satisfied by including leaseholds. Goodman v. Edwards, 2 M. & K. 759. devise Since the Wills Act, however, leaseholds pass under General a general devise of lands unless there is a contrary since the intention. Wills Act. Contrary intention. Leaseholds will not Such a contrary intention is not shown by the fact that the "lands" in question are devised in strict settlement without any provision to prevent the leaseholds from vesting indefeasibly in the first tenant in tail at his birth. Wilson v. Eden, 11 B. 237, 5 Ex. 752, 14 B. 317, 18 Q. B. 474, 16 B. 153. But if there is a direction to accumulate the rents and profits during the minority of a tenant for life or in tail, and if he attains twenty-one to pay the accumulations to him, or if he dies under twenty-one to invest them in freehold land, to be settled to the same uses—a direction inconsistent with the absolute vesting of the leaseholds in a tenant in tail at birth,-and a power of selling the "lands" and investing the proceeds in leaseholds, to be settled upon the same trusts, but so that they shall not vest in any tenant in tail dying under twenty-one, and there is a gift of the residuary personal estate upon trusts corresponding with the uses of the devised lands. with the same proviso against absolute vesting, the testator by the provisions against the vesting of leaseholds in any tenant in tail dying under twenty-one shows that he would have inserted similar provisions in the devise of the "lands," unless he had intended leaseholds not to pass under that name. Prescott v. Barker, L. R. 9 Ch. 174. A devise of "freehold" lands, or of "real" estate is pass under not affected by the 24th section of the Wills Act. Stone v. Greening, 13 Sim. 390; Emuss v. Smith, 2 De G. & Sm. 722; Turner v. Turner, 21 L. J. Ch. 843. the term freehold lands or real estate. Under such a devise, therefore, leaseholds will pass only if there are no freeholds. Day v. Trig, 1 P. W. 286; Doe d. Dunning v. Cranstoun, 7 M. & W. 1; Gully v. Davis, 10 Eq. 562. In this respect the Wills Act, since which after-acquired freeholds might pass, will not prevent leaseholds from passing where there are no freeholds. Nelson v. Hopkins, 21 L. J. Ch. 410; Gully v. Davis, 10 Eq. 562; Moase v. White, 3 Ch. D. 763. And where the testator was possessed of a leasehold interest, and also of the reversion in fee from the expiration of three years after the end of the term in certain premises, the whole interest has been held to pass under the word freehold. Matthews v. Matthews, 4 Eq. 278. VI. BENEFICIAL INTEREST IN A MORTGAGE. interest in A general devise of lands will not without more Beneficial pass the beneficial interest in a mortgage. Strode v. a mortRussell, 2 Vern. 621, 624; Casborne v. Scarfe, 1 Atk. gage. 605; see 2 J. & W. 194. See Martin d. Weston v. Moulin, 2 Burr. 969, where the testator was mortgagee in possession. But a devise of particular lands of which the testator is only mortgagee to several persons in succession, would, it seems, pass the beneficial interest, as something was clearly intended to pass, and the limitations are inappropriate to a devise of the mere legal estate. Woodhouse v. Meredith, 1 Mer. 450. See, too, Knollys v. Shepherd, 1 J. & W. 499; Clarke v. Abbott, Barn. Ch. 457, 461. Where the testator was owner in fee of a house subject to a lease, and at the same time mortgagee of the lease, the mortgage debt was held not to pass by a devise of my freehold house." Bowen v. Barlow, 11 Eq. 454; 8 Ch. 171. Rent charges upon a house which were conveyed on the occasion of the purchase by the testator of the lease to a trustee for him, would probably pass by a devise of the house. Vallance v. Vallance, 2 N. R. 229; see Wilkes v. Collin, 8 Eq. 338; Swinfen v. Swinfen, 29 B. 199, 204. Legal estate in trust and mortgage estates. testator is ficially en titled to the mort VII. TRUST AND MORTGAGE ESTATES. A general devise to a person absolutely without more will pass the legal estate in property of which the testator is trustee or mortgagee. Lord Braybroke v. Inskip, 8 Ves. 417. There is, however, a distinction between cases where the testator is mortgagee in trust, and where he is also beneficially entitled to the mortgage money. Where the 1. Where the testator has the legal estate in a mortmortgagee gage, and the beneficial interest is also vested in him, the and bene- legal estate passes under a gift of "all the rest of my real and personal estate to A. for her own use and benefit," though there may be a charge of debts. Re Stevens' Will, 6 Eq. 597. In such a case it is reasonable to suppose that the beneficial ownership and the lega! estate were meant to go together. gage money. If the devise is to trustees, subject to a charge of debts, apparently the legal estate would not pass, the argument from the convenience of uniting the legal estate with the beneficial interest being away. Re Horsfell, M ̊C. & Y. 292. This is d fortiori the case where the devise is to trustees subject to the payment of debts upon trusts inapplicable to the legal estate. See Packman v. Moss, 1 Ch. D. 215, where the testator was beneficially interested in a moiety of the equity of redemption. But if the trustees are directed to get in debts due on any security, they take the legal estate. Re Arrowsmith's Trusts, 6 W. R. 642. The legal estate will not pass where the devise is after payment of debts to two persons as tenants in common. Doe d. Roylance v. Lightfoot, 8 M. & W. 553. Or where it is to several persons in definite shares, though not subject to debts. Martin v. Laverton, 9 Eq. 563. Or where it is to an indefinite class, as tenants in common. Re Finney's Estate, 3 Giff. 465. estates. 2. Mere trust estates will not be prevented from passing Mere trust under a general devise by words of benefit superadded. Bainbridge v. Lord Ashburton, 2 Y. & C. Ex. 347; Sharpe v. Sharpe, 12 Jur. 398; Lewis v. Matthews, L. R. 2 Eq. 177; and see Ex parte Shaw, 8 Sim. 159. debts. But they will not pass if there is a charge of debts, Charge of whether by express words or by implication from a residuary devise where legacies have been previously given. Doe d. Reade v. Reade, 8 T. R. 118; Duke of Leeds v. Munday, 3 Ves. 348; Hope v. Liddell, 21 B. 183; In re Bellis' Trusts, 5 Ch. D. 504. See, however, In re Brown & Sibly, 3 Ch. D. 156. sale. Nor where the devise is on trust for sale. Ex parte Trust for Marshall, 9 Sim. 555; Re Cautley, 17 Jur. 124; Morley's Will, 10 Ha. 293; In re Smith's Estate, 4 Ch. D. 70. Nor where the devise is to uses in strict settlement. Thompson v. Grant, 4 Mad. 438. use. As to whether a devise to the separate use will prevent Separate trust estates from passing, see Lindsell v. Thacker, 12 Sim. 178. tive trust. 3. Where a testator has contracted to sell real estate, Construcso that he is a constructive trustee of the legal estate, it will pass under a devise of trust estates, and not under a general devise upon trust for sale. Lysaght v. Edwards, 2 Ch. D. 499. Purser v. Darby, 4 K. & J. 41, only decides that where the estate contracted to be sold is specifically devised it is excepted from a general devise of trust estates. If there is no devise of trust estates, the legal estate in lands contracted to be sold will pass under a general devise of real and personal estate upon trust to get in and dispose of the personalty, the legal estate being required |