years, but no freehold estate,-of " all his lands and tenements," the lease for years has been always allowed to pass, for there would otherwise be nothing for the will to operate upon. But this being considered as the only reason for such a construction, it was, on the other hand, a general rule, that if a testator, using such words, had both lands in fee, and lands for years at the time, the lands in fee only would pass (2). It is now, however, by the new act provided, "that a devise of the land of the testator, or of the land of the testator in any place, or in the occupation of any person mentioned in his will, or otherwise described in a general manner, and any other general devise which would describe a cus"tomary copyhold or leasehold estate, if the testator had 66 no freehold estate which could be described by it, shall "be construed to include the customary copyhold and "leasehold estates of the testator, or his customary copy"hold and leasehold estates, or any of them to which such description shall extend, as the case may be, as well as "freehold estates, unless a contrary intention shall appear "by the will (a)."

6. In like manner, where a party having an estate in lands (which he is consequently competent to devise), is also entitled, by virtue of a power conferred on him for the purpose, to appoint other lands, by his last will and testament, it was formerly the rule, that a general devise of his lands would operate only on those in which he has the estate, and would not affect those subject to the power, though it was otherwise if he expressly referred to the power, or if it appeared by other circumstances (as by his having no estate for the will to work upon) that he intended the subject of the power to pass (b). And such is still the rule where the power is special, and to be ex

(s) Rose v. Bartlett, Cro. Car. 293; Doe v. Williams, 1 H. Bl. 25; Thompson v. Lawley, 2 Bos. & Pul. 303.

(a) Sect. 26.

(b) Denn v. Roake, 5 Barn. & Cr. 731.

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ercised only in favour of particular individuals or classes of persons; but where it is general, and enables the testator to appoint to any person that he pleases, (which amounts in substance to an ownership), the law is now altered by the new Statute of Wills; for by the 27th section it is provided "that a general devise of the real es"tate of the testator, or of the real estate of the testator "in any place, or in the occupation of any person men"tioned in his will, or otherwise described in a general “ manner, shall be construed to include any real estate, or any real estate to which such description shall ex"tend (as the case may be), which he may have power "to appoint in any manner he may think proper, and "shall operate as an execution of such power, unless a "contrary intention shall appear by the will" (c).

7. By a rule of legal interpretation, at variance with the common apprehension of mankind, and founded upon reasons of a purely technical description, it had long been settled law, that the words dying without issue (as where an estate of freehold or leasehold was devised to A., and upon his dying without issue then over to B.) in general imported an indefinite failure of issue, that is, a failure not merely at the death of the party whose issue were referred to, but at any subsequent period, however remote (d). But by the new Statute of Wills such words are, in future, to receive a more natural exposition; it being provided (s. 29)" that in any devise or bequest of real or personal estate, the words 'die without issue,' or 'die "without leaving issue,' or 'have no issue,' or any other

،،

(e) The section also contains a similar provision as to appointment of personal estate.

(d) Fearne by Butler, 478, 480, 9th edit.; Doe v. Ewart, 7 Adol. & Ell. 648. It is to be observed, however, that such words would receive the opposite construction, if accompanied by any other expressions

tending to limit the failure of issue to the time of the party's death; and the law admitted such a construction much more readily, in the case of a bequest of a term of years, than in that of a devise of the freehold; Fearne by Butler, 471, 9th edit.; Doe v. Ewart, ubi sup.

"words which may import either a want or failure of "issue of any person in his life-time, or at the time of his "death, or an indefinite failure of his issue, shall be con"strued to mean a want or failure of issue in the lifetime,

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or at the death of such person, and not an indefinite "failure of his issue, unless a contrary intention shall appear by the will, by reason of such person having a "prior estate tail, or of a preceding gift, being (without any implication arising from such words) a limitation of an estate tail to such person, or issue, or otherwise: "Provided that this act shall not extend to cases where "such words as aforesaid import, if no issue described in preceding gift shall be born, or if there shall be no "issue who shall live to attain the age, or otherwise answer the description, required for obtaining a vested "estate by a preceding gift to such issue."

a

IV. As to the operation of devises in conveying and limiting real estate, a will of land is considered by the courts of law, not so much in the nature of a testament, as of a conveyance (e), declaring the uses to which the land shall be subject, with this difference, that in other conveyances the actual subscription of the witnesses is not required by law (f), though it is prudent for them so to do, in order to assist their memory when living, and to supply their evidence when dead; but in devises of lands such subscription is absolutely necessary by statute, in order to identify a conveyance which in its nature can never be set up until after the death of the devisor.]

As a devise is in the nature of a declaration of uses, so estates may be thereby limited upon the same principles as by a conveyance operating under the Statute of Uses (g). For we may recollect that a conveyance of that kind, is free in many respects from the restrictions incident to those at the common law, by which a man was unable to

(e) Acc. Wyndham v. Chetwynd, Burr. 429.

(f) Vide sup. p. 459.

(g) 2 Bl. Com. 334; Arthur v. Bokenham, 11 Mod. 154.

limit a freehold in futuro, or a fee upon a fee, or any estate whatever in defeasance of a prior estate of freehold (h). But as by the medium of executory uses, all these dispositions may be effected in a conveyance inter vivos, so they are also allowed in a will (i), which is analogous to a declaration of uses; and upon the same principle, and also because a will takes no effect until the death of the testator, it is competent to a man to devise to his wife (k), though he cannot convey to her (as we have seen) through the medium of a common law assurance (l). Yet is there this difference between a limitation to uses and a devise, that the latter is capable of operating by way of direct gift, and independently of any execution of the use, by force of the statute of 27 Hen. VIII. c. 10(m). Indeed, it has been doubted whether that statute has any effect in the case of a devise(n); and though where uses are expressly and formally declared by the will, it may often be inferrible that the testator had the statute in view, and intended the conversion of the use into legal estate, according to its known mode of operation, yet it is rather by force of his intention, than of the statute itself, that the legal estate, in such cases, would seem to pass; while, on the other hand, it is clear that a use so declared will not be executed by the statute, where such conversion of it, into legal estate, is contrary to the manifest or presumable purpose of the testator (o).

A devise, by which any future estate is thus allowed to be limited, contrary to the rules of the common law, is called an executory devise(p); (though that term is more especially applied to the particular case of limiting a fee upon a fee; as where an estate is given to A. and his

(h) Vide sup. p. 501, 502.

(i) Fearne by Butler, 395, 9th ed.; 381, n. (a); 2 Bl. Com. 173, 334. (k) Arthur v. Bokenham, 11 Mod. 156; Litt. s. 168.

(1) Vide sup. p. 501.

(u) 2 Bl. Com. 334; Co. Litt. by

Butl. 272 a, n. (1), viii.

(n) Ibid.; 1 Sand. Us. 196.

(o) Co. Litt. by Butl. 272 a, n. (1), viii.; Biscoe v. Perkins, 1 Ves. & B. 485.

(p) Fearne by Butl. 386, 9th ed.; 2 Bl. Com. 172.

heirs, but if he dies before the age of twenty-one, then to B. and his heirs (q);) and with respect to all such dispositions, it is material to remark, that though the law will give effect to them when made by will, yet (upon the same principle to which we had before occasion to advert, in case of a springing or shifting use (r)) it is a rule that no limitation capable of being considered as a remainder, shall ever be construed as an executory devise(s). All executory devises (whether of the freehold, or of terms of years, or other chattels) are also subject, like springing and shifting uses, to the rule against perpetuity(t). And therefore, until the late Statute of Wills before referred to, it was held that if a chattel real or personal were bequeathed to A., and upon his dying without issue, then to B., the limitation over to B. was void, as being too remote (u); for such words imported (as we have seen) an indefinite failure of issue. But in devises of the freehold, similarly worded, the objection of remoteness did not usually arise; for, in general, the law gave effect, in this case, to the limitation over, by considering the estate of the first taker as amounting, by implication, to an estate tail, and the ulterior estate, by consequence, as a remainder; which, as it might always be barred by the recovery of the tenant in tail, did not fall within the rule against perpetuity. By the express provision, however, of the late statute, the rule of interpretation as to the words dying without issue (on which the whole of these doctrines were founded) is now (as we have seen) itself abolished.

With respect to the operation of a devise, it remains only to remark, that it vests in the devisee an actual

(q) 2 Bl. Com. 173.

(r) Vide sup. p. 503.

(s) Fearne by Butl, 386, 394, 525, 9th ed.; Doe v. Selby, 2 Barn. & Cres. 930.

(t) 2 Bl. Com. 173, 334; Fearne by Butl. 430, 9th ed.; Co. Litt. by

Butl. 271 b, n. (1), vii. 2. The period allowed for vesting, is computed in this case from the death of the testator, not the date of his will; ibid.

(u) Fearne by Butl. 460, 9th ed.; Doe v. Ewart, 7 Ad. & El. 648