"tator, or by reason of such devise being contrary to "law, or otherwise incapable of taking effect, shall be in"cluded in the residuary devise (if any) contained in such "will (i)."

5. Under a devise by a testator, who has a lease for years, but no freehold estate,-of" all my 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 (k). 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 customary copyhold or leasehold estate, "if the testator had no freehold estate which could be de"scribed by it-shall be construed to include the customary

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copyhold and leasehold estates of the testator or his cus"tomary copyhold 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 (1)."

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

(i) 7 Will. 4 & 1 Vict. c. 26, s. 25. The rule of law before the statute passed was different as to real estates, but the same as to personal. (See Doe v. Underdown, Willes, 293.)

(k) See Rose v. Bartlett, Cro. Car. 293; Doe v. Williams, 1 H. Bl. 25; Thompson v. Lawley, 2 Bos. & Pul. 303; Knight v. Selby, 3 Man. & Gr.

92; Parker v. Merchant, 5 Man. & Gr. 498.

(1) 7 Will. 4 & 1 Vict. c. 26, s. 26; Wilson v. Eden, 5 Exch. 752. As to the case of freehold passing under a devise of leasehold, see Doe d. Dunning v. Cranstoun, 7 Mee. & W. 3.

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 (m). And such is still the rule where the power is special, and to be exercised 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 Will Act; for it is thereby provided, "that a general devise of the real estate of the testator, or of "the real estate of the testator in any place, or in the "occupation of any person mentioned in his will, or "otherwise described in a general manner,-shall be con"strued to include any real estate, or any real estate to "which such description shall extend (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 (n).”

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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 (o). But

(m) See Denn v. Roake, 5 Barn. & Cress. 731.

(n) 7 Will. 4 & 1 Vict. c. 26, s. 27. The same section also contains a similar provision as to appointment

of personal estate. As to the construction of the word "estate" in a devise, see Sanderson v. Dobson, 1 Exch. 141.

(o) See Fearne by Butler, 478,

by the new Will Act, such words are, in future, to receive a more natural exposition; it being enacted, "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 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 construed to mean a want or failure "of issue in the lifetime 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 (p)." It is, however, provided, that the Act "shall not extend to cases where such words as aforesaid, "import if no issue described in a 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."

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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, declaring the uses to which the land shall be subject (q); with this difference, that in other conveyances the actual subscription of the witnesses is not

480, 9th edit.; Doe v. Taylor, 10 Q. B. 718; Gee v. Mayor of Manchester, 17 Q. B. 737; Foster v. Hayes, 4 Ell. & Bl. 717; Bamford v. Lord, 14 C. B. 708; Biss v. Smith, 2 H. & N. 105. It is to be observed, however, that such words would receive the opposite construction, if accompanied by any other expression 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 d. Cadogan v. Ewart, 7 Ad. &

El. 648.

(p) 7 Will. 4 & 1 Vict. c. 26, s. 29. (9) Wyndham v. Chetwynd, Burr,

429.

[required by law (q), 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, 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.]

By a devise, estates may be limited with the same effect as by a conveyance operating under the Statute of Uses (r). Thus a man may effectually devise not only an estate in possession (that is, in possession immediately on the death of the testator when the will first takes effect) or in remainder, but a freehold in futuro, or a fee upon a fee, or any estate in defeasance of a prior estate of freehold,— all which limitations (as we have seen) may be effectually made by way of executory use, but not in a conveyance at the common law (s). So a man may devise to his wife as he may convey to her by way of use,-though his conveyance to her at common law would be inoperative (t). His devise too in all these cases will be effectual though made by direct gift, and without reference to uses (u). Yet as a devise is considered to be in the nature of a conveyance declaring uses, so uses are often expressly introduced into them; and it has been the practice to introduce them in the same form as in conveyances under 27 Hen. VIII. c. 10. It has been doubted, however, whether that statute has any effect in the case of a devise (x): and though where uses are expressly and formally declared by the will, it may often be inferable 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.

(q) Vide sup. p. 503.

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

(s) Vide sup. p. 550.

(t) Vide sup. p. 552.

(u) 2 Bl. Com. 334; Co. Litt. by Butler, 272 a, n. (1).

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

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 (z). And upon the same principle to which we had before occasion to advert, in the case of a springing or shifting use (a), it is a rule that no limitation capable of being considered as a remainder, shall ever be construed as an executory devise (b). All “ executory devises" are also subject, like springing and shifting uses, to the rule against perpetuity (c). And therefore, until the New Will Act already often referred to (d), 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 (e); 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; a construction which was not admissible in the former case, by reason of their being no estate tail in a chattel (f); 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 new Will Act, 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 (g).

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

(a) Vide sup. p. 553.

(b) See Fearne by Butl. 386, 394, 525, 9th ed.; Doe d. Evers v. Challis, 20 L. J. (Q. B.) 113.

(c) 2 Bl. Com. 173, 334; Fearne by Butl. 430, 9th ed.; Co. Litt. by Butl. 271 b, n. (1), vii. 2. As to perpetuity, vide sup. p. 560. The period allowed for vesting is com

puted, in the case of a devise, from the death of the testator, not the date of his will. (Ibid.)

(d) 7 Will. 4 & 1 Vict. c. 26.

(e) Fearne by Butl. 460, 9th ed.; Doe v. Ewart, 7 Ad. & El. 648; Doe v. Duesbury, 8 M. & W. 531. (f) 2 Bl. Com. 398; vide sup. p.

287.

(g) Vide sup. p. 616.