[So also where a devise is of Blackacre to A., and of Whiteacre to B. in tail, and if they both die without issue, then to C. in fee:-here A. and B. have cross-remainders by implication; and on the failure of either's issue, the other or his issue shall take the whole, and C.'s remainder over shall be postponed till the issue of both shall fail (o). But where any implications are allowed, they must be such as are necessary, or at least highly probable, and not merely possible implications (p).] There is also this difference between deeds and wills in point of construction, that supposing a will to contain two inconsistent clauses, that which comes last in order shall prevail (q); though in a deed (as we have seen) the preference is due to that which comes first (r).

A will also is subject to a less strict rule, than a conveyance by deed, in respect of the description of the thing granted. Thus, if I convey my house by deed, without any specification of land, we have seen that no land can pass, except the orchard, garden, and curtilage (s); but the question what shall pass by the devise of a house (or of a house with the appurtenances") is purely a question of intention, to be determined, like other points of construction, by the tenor of the whole will. A devise in either form may, under special circumstances, have the effect of passing adjacent land or buildings (t).

There are also some particular points of construction, established by parliamentary enactment, with regard to devises. For the former state of the law upon these

(o) Freem. 484. As to cross-remainders, vide sup. p. 358.

(p) Vaugh. 262.

(q) There is some contrariety in the books as to this point; but the doctrine as laid down in the text appears to be supported by the better authorities. (See Co. Litt. 112 b; Plowd. 541, in notis; Doe d. Spencer v. Pedley, 1 Mee. & W. 677.)

(r) Vide sup. p. 509.

(s) Vide sup. p. 492.

(t) 2 Saund. by Wms. 401, n. (2). See also the following cases on the construction of wills, in reference to the description of the thing devised: Doe v. Cranstoun, 7 Mee. & W. 3; Doe v. Lightfoot, 8 Mee. & W. 553; Doe v. Earles, 15 Mee & W. 450.

points, as settled by judicial decisions, being deemed unsatisfactory, it was thought fit in 7 Will. IV. & 1 Vict. c. 26, before referred to, to regulate them for the future upon different principles. The new statute, however, it must be recollected, does not extend to wills executed before 1st January, 1838, which consequently remain subject, in respect of the same questions, to the former rules of interpretation. The points to which we refer are principally as follows.

1. As the dispositions made by a testator cannot take effect, and are not intended to take effect, till after his death, it has often become a question whether in his description of the property devised, or of the persons in whose favour he devises, he shall be considered as referring to the state of things which exists when he executes his will, or to that which may exist at the time of his death. As to bequests of personal estate, the rule has always been, that the will speaks as at the time of death: but in devises of the realty, the opposite construction formerly obtained; and the will was held to speak, in general, as at the time of its execution (u). But the new statute has now assimilated the construction of devises upon this point, to that of personal bequest; for it provides, "that every "will shall be construed, with reference to the real estate "and personal estate comprised in it, to speak and take "effect as if it had been executed immediately before the "death of the testator, unless a contrary intention shall appear by the will (x)."

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2. Though (as before observed) an estate in fee was always allowed to pass by devise, without apt words of inheritance, provided there were other expressions to show the testator's intention to confer a fee, yet, prior to the late Act, a long train of judicial decisions had established

(u) See Lomax v. Holinden, 1 Ves. sen. 295; Pow. Dev. 307, (n.), by Jarman; King v. Bennett, 4 Mee. & W. 36.

(x) 7 Will. 4 & 1 Vict. c. 26, s. 24. See O'Toole v. Browne, 3 Ell. & Bl. 572.

that a mere devise of house or land would not suffice to indicate that intention, but would confer only an estate for life. Thus, if I were seised in fee of a house at A., and devised my house at A. to B. and his heirs, or devised it to him with equivalent words, expressive of an intention that he should take my whole estate therein, the house would pass to him, in either case, in fee; but if I devised to him my house at A., without adding and his heirs, or using such other equivalent words as above mentioned, he would take an estate in it for his life only (y). This rule had always given much dissatisfaction, as establishing a construction contrary to that which common sense presumes to be the real intention of the party (z); and by the new statute it is accordingly provided, "that where any "real estate shall be devised to any person without any "words of limitation, such devise shall be construed to 66 pass the fee-simple, or other the whole estate or interest "which the testator had power to dispose of by will, in "such real estate, unless a contrary intention shall ap"pear by the will (a)."

3. In devises to trustees, it had been a general rule prior to the new Will Act, that though no words of inheritance were used in the limitation to them, yet they should take such an estate (even to the extent of the whole fee) as might be necessary to enable them to perform the purposes of the trusts; but the question often arose, whether in particular instances they would take the fee, or a less estate, and if the fee, whether it would be determinable or not when the trusts were satisfied (b). But by this Act, a rule of construction is laid down, by which the subject will be hereafter governed; it being provided, "that where any "real estate (other than or not being a presentation to a church) shall be devised to any trustee or executor, such (y) Roe v. Blackett, Cowp. 235; Silvey v. Howard, 6 Ad. & El. 253. See Doe v. Fawcett, 3 C. B. 274.

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(z) Denne v. Page, 11 East, 605, n. (a) 7 Will. 4 & 1 Vict. c. 26, s. 28.

(b) See Doe v. Ewart, 7 Ad. & El. 666; Doe v. Edlin, 4 Ad. & El. 582; Barker v. Greenwood, 4 Mee. & W. 429; Adams v. Adams, 6 Q. B. 860.

"devise shall be construed to pass the fee simple, or other "the whole estate or interest which the testator had power "to dispose of by will in such real estate; unless a definite "term of years, absolute or determinable, or an estate of "freehold, shall thereby be given to him expressly, or by

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implication (c)." And further, "that where any real "estate shall be devised to a trustee, without any express "limitation of the estate to be taken by such trustee; and "the beneficial interests in such real estate, or in the sur"plus rents and profits thereof, shall not be given to any person for life or such beneficial interest shall be given "to any person for life, but the purposes of the trust may "continue beyond the life of such person-such devise "shall be construed to vest in such trustee the fee simple, or other the whole legal estate which the testator had power to dispose of by will, in such real estate; and "not an estate determinable when the purposes of the "trust shall be satisfied (d)."

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4. If, in the interval between the execution of a will and the death of the testator, one of the objects of his bounty dies, the devise to such party will, by the general rule of law, lapse, that is, fail, and take no effect; and the subjectmatter of it will be considered as not disposed of by the will. This rule had, till lately, applied to all cases without distinction; but where the party dying left children, it was sometimes attended with peculiar hardship (e). For if there were a devise to A. and the heirs of his body, and he died before the testator, the gift was void by the effect of this rule, even though he left issue; and yet it was manifest that the children, as well as the parent, had been designed to take the benefit of the gift. So if a testator gave his property among his own children, and one of them died before him, leaving issue, such issue would take nothing under the will, though the probability was, that this consequence could not have been intended. It is true

(c) 7 Will. 4 & 1 Vict. c. 26, s. 30. (d) Ibid. s. 31.

(e) See the 4th Real Property Report, pp. 73, 74.

that a testator had it always in his power to make a new disposition in favour of the children of a deceased devisee; but either from negligence or ignorance of the law, or from other accidental causes, this was often omitted; and an alteration of the law itself, as applicable to cases of this description, was therefore thought desirable (ƒ). The new Act accordingly provides, "that where any person to 66 whom any real estate shall be devised for an estate tail, "or an estate in quasi entail, shall die in the lifetime of "the testator, leaving issue who would be inheritable "under such entail, and any such issue shall be living at "the time of the death of the testator-such devise shall "not lapse, but shall take effect as if the death of such person had happened immediately after the death of the "testator, unless a contrary intention shall appear by the "will (g)." And further, "that where any person, being a child or other issue of the testator, to whom any real "or personal estate shall be devised or bequeathed, for any estate or interest not determinable at or before the "death of such person, shall die in the lifetime of the "testator, leaving issue, and any such issue of such person "shall be living at the time of the death of the testator,— "such devise or bequest shall not lapse, but shall take "effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will (h)." In addition to which enactments, and in connection with the subject of lapse, we may notice this further provision, introductory of a new rule, in cases where a lapse occurs,— "that, unless a contrary intention shall appear by the "will, such real estate or interest therein as shall be com

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prised, or intended to be comprised, in any devise in "such will contained, which shall fail or be void by reason "of the death of the devisee in the lifetime of the tes

(f) See the 4th Real Property Report, p. 73.

(g) 7 Will. 4 & 1 Vict. c. 26, s. 32. (h) Sect. 33. The "issue" left

may be the grandchild of the legatee. (See Re Parker, 1 Swab. & Trist. 523.)