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would be undisposed of by the will {Circuit t v. Perry
(1856), 23 Beav. 275). This rule, in .so far as it is a rule
of construction at all, has been overruled in Re Ba<iot,
Baton V. Ormerod, supra, where, as stated by Lindley, L.J.,
the mere fact that the testator thinks he does not own
somethino;, is not a sufficient indication of anv intention on
his part to exclude it from the residue. There must be
evidence that he intended to exclude it, even if it was his.

The second limitation is with respect to lapsed shares of
the residue itself. The cases relating to this will be
considered under paragraph (3).

A general residuary gift carries not merely lap-ed
legacies or devises, or both, according to the extent of the
gift, but also la|>sed appointments under a general power
to appoint. But while all lapsed legacies and devises go
under the residuary gift, unless a contrary intention is
clearly shown, this is not so with lapsed a])])ointments.

As has already been pointed out (sup7'a, j). 1-49), a
residuary gift is in itself sufficient to execute a general
power of appointment, even though no reference whatever

Chap. IV. — Special Rules as to "Wills. 155

i^ made to the power. But if the will purports to exercise Art. 27.
the jtower directly in favour of certain heneficiaries, and parii^Ti).
the appointment fails, then, whether tlie property intended
to he appointe<l to them goes under the residuary oift,
depends upon whether the testator has. l)y the exercise of
the power of appointment, shown an intention " to take
the property dealt with out of the instrument contain-
ing the power for all purposes, or only for the limited
purpose of giving eifect to the particular disposition
expressed " {per Romer, J., in Re Boyd, Kelly v. Boyd,
[1897] 2 Ch. 232, at p. 235). If the terms of his will
indicate that he intended to take the property out of the
instrument for all purposes, it will go under the residuary
clause ; if they do not. the persons entitled iu default of
appointment will take (/// re De I.usPs 7V?^s-?s (1879),
3 L. ]{. Tr. 232J.

^\'here the appointment is to a trustee for the intended
beneficiaries, or when the testator makes a blended fund of
the property subject to tlir p(nv('r and hi< own estate
(In re Marten, Shaw v. Marten, [1902] 1 Ch. 314), that
fact constitutes as a rule sufficient evidence of sucli inten-
tion ; and if any of the beneficiaries ])rc(I<'C('as(' the
testator, there is a resulting trust of the property appointed
to tliem, in favour of the testator's general estate (/// re
Van JIayan, Sperllny v. Rochfort (188(3), 16 Ch. I). 18).
Where, however, the appointment is ilirect to the intended
beneficiaries, tlje ajiplication of the rule is sometimes a
matter of dithculty.

Two cases mav be cited to ilhi>trate the applieat ion. illiistrations

as til lapsed
III i'n.rrn V. /'oirliiiul, [1894:] 1 ('ll. -Idl'.. a t c'>I;it ii\ appniiit -

gave. devi«-ed, and iieciueathetl ;dl the real and persniial ^ "■

estate and etfects what>oever and wherexiever whieii -he

might be possessed of or entitled lo. or wliieji liy virtue of

anv power or authoritv bv aiiv deed or will, or (tf aiiv

heparatc u>e or right of |tr(»perty. -lie wa- eonipelent to

dispose of in maimer following. She then made >e\cral

15t*> Takt III. — DKsciarTiuN of PKurHUTY.

Art. 27. -.jK'ciHc Ix'cjuots and ilcvi^cs. ami foutiuucd : " I ^ivc and
Para. (1). devise my messuage anil itemises t'ornierlv l^nown as
No. 18J)ut now known as No.;)"). Stokes Croft, l>ri>tol, to
my liusliand alisolutrlv "" : and there was a residuary
bequest in t'avour of her liusi)and. The ]irenii-es. No. iif),
Stokes (.'rot't. were not the projx'rty of the testatrix, hut
she hati a ei-neral power of a])i)ointnient over them. Her
lui-hand ]iredeeeased her. It was jield tliat the testatrix
had taken the j)roperty out of the instrument creating the
power for all purposes. " It appears that throughout the
will she draws no distinction between property which
belonged to her, and jiroperty over which she had only a
power of disposition : all such jtroperty is alike s])oken
of as belonging to the testatrix. If the final residuary
gift had been in favour of some person other than her
husband, the house, No. 35, Stokes Croft, would, as it
seems to me, have passed under it" {jyer Stiulixg, J., at
p. 412).

In Re Boinl Kelhj v. Bo,id, [1897] 2 Ch. 232. the
testatrix, who had a general power to appoint by her
will a fund of ^a.OOO, after reciting the power of a])point-
ment, proceeded, " Now in exercise of such ])ower I give
and bequeath the said sum of ;£5,000 and also all the
residue of my real and personal estate and effects not
otherwise disposed of by me, equally between and amongst
my several nephews and nieces following '" — then came
the names of eight nephews and nieces — " as tenants in
common." The will contained no direction to pay debts.
By a codicil she gave each of her nephews and nieces
legacies "out of my own moneys," and directed the legacy
duty to be paid out of her general residue. By a subse-
quent codicil she revoked one of these legacies, and gave
other legacies " out of her own monevs." Two of the
ai)}iointees of the i5,(>00 ])redeceased her : — //<?/</, that the
power was not so exercised as to take the shares of these
two out of the instrument creating the j)ower, so as to

Chap. IV. — Special Rules as to AVill>. 1o7

make it part of her residuarv estate. Romek, J., at Art. 27.
p. 235, said : "• The testatrix has hcrseU" drawn a distinc- pa^ZTi).
tion 1)et\veen the £.5,000 and her own property. She has
given certain legacies hy her codicils. ex})ressly payaljle
out of ' her own nionevs ' hv which I understand her to
mean that in no case was the £5,000 (which was not her
own) to aid in case of deficiency of her own property in
paving those legacies, and she does not anywhere treat or
describe the £5,000 as part of her own rc-idue or as jicr
own money."'

Pauaohaph (2).

Both parts of this rule may hi' well illii>trat<'d hy Illustrations.
Mason V. Onden. [U»0.3] A. ('. 1. There a testator liavinu
de^^sed a freehold proj)erty at W. to his son, left t<» tlic
plaintiff's "all other my freehold messuages and tciicnicnts
at W. and elsewhere."" The son luiving attested the will
the devise to him lapsed. At his death the testator had
no copyhold estates. Kekewich, J. (In re Mason,
Ooden V. Jfason, [1900] 2 ( 'h. ![){',), felt compelled, on
the authority of Spri/ujetf v. Jcni/ujs (1871), G C'h. 333,
to hold that the devise not being large enough to include
all real estate was not a good residuary devise. On appeal
the Court of Appeal ([IDOl] 1 Ch. CI!*) held (1 ) that
"all other my I'reehold messuages" did not limit ilir
devise to these freeholds which the testator had not before
mentioned ; and (2) that it was not necessary that a devise
to be residuary should Ik* eapable of including all ^-orts of
real estate. The House of Lords afhnned thi- decision.
Lor'i Davey said (iii p. -1): ''The real (piestion is whether
that gift of ' all other ' the testator's i'reehold messnages and
so forth i- a re>i(Juary gift. < >ne a-k-* one^rli'. Why not ?
Tin? gilt is precis(dy the same (that is not di>]Mited) as it"
h(^ had said, 'And as to the n'^iiliie of my Ireeliold
messuages and tenements at \\ indilednn and elx-wheie.
In form it certainly i' a re-.i(biar\ gill. \\'h\ i> it not to

158 Paut til — Deschh'tion of PKurKirrY.

Art. 27. 1)(' trcatcil as a i-csiduarv <,nt't umlcr s. 2.") ? W'rll. my
Para ('2). 1<>J''1">, tile oiiK Irnal reason I have heard is that it does
not possess th<' attrihute ot" ' nniversality,' wliatever may
he meant hy that : and tlie iiid;^nient of Mei.i.isii. 1^..!.. in
Spriiujett V. Jeniiujs is referretl to in support of that pro-
position. All that I understand that very learned jud<ie
to have meant hy his expression . . . was that a
clause which is relied on as a residuary clause must he so
framed as to sweep in hy its terms the whoh^ of the
}irui)erty to Avhich it applies. AVhen yon are speakin<:' of
a residuary (iift of personal estate, the clause must he so
framed as to he capahle of carrying- every description of
])ersonal estate not otherwise disposed of hy the will ; and
when you are sj)eakinf>; of a residuary gift of real estate
generally, it must he so framed as to carry in every atom
of real estate ; but why we may not have a residuary
gift of freehold estate I am at a loss to understand."

The difficulty seems to he that s. 25 enacts that anij
devise which fails is to fall into the residuary devise.
That seems, undoubtedly, to assume that a residuary devise
must be capable of including (inji devise. liesiduary
devises of freeholds merely would in that case not come
within the Act, since lapsed devises of copyholds could not
be included within them.

Paragraph (3).

Contrary Lapsed shares of residue do not fall into the residue

intention. unless a Contrary intention appears {Skrymsher v.
Nortlicote (1818), 1 Sw. 566). Formerly the court went
further than this, and held that even where the will
contained an express direction that a lapsed share should
fall into the residue, it, nevertheless, did not do so, but
was undisposed of by the will {Humble v. Shore (1847),
7 Hare 247). This decision, which w^as very reluctantly
acquiesced in, has now been expressly overruled by the

C'hAI". TV. — Sl'EClAL IxlLKS AS TO "WiLLS. 1')^

Court of Appeal in la n- Fahm-r, Palmer v. Answortli, Art. 27.
[1893] 3 Ch. 36y. Ami in I n re AUan^ Doio \. Cassaigne, Yavh (3)
[1903] 1 Ch. 'l~i(^. t\\\< priiK'iitlc has been carried further
since it was there held that where it is clear that the
intention of the testator was to treat the whole residue as
an inte^irral fund, then not merely will the original, but
also the accrued, shares fall back into the residue. And in
la re Parker, StepJiensoa v. Parker, [1901] 1 Ch. 408,
Fakwell. J., lield that where there is a oift over on the
complete failure of the original objects to which the residue
was left, that is enough to indicate an intention on the
testator's part that on the partial failure of such objects
their shares of the residue are to accrue to the remaining
objects. Indeed, he expressed a doubt whether since the
decision of In re Palmer, Palmer v. Ansicorth, supra, the
doctrine of S/cri/msher v. Xortlicote, supra, can be main-
tained at all.

The same rule applies when a testator gives a share of Revoked
his residuary estate to a person and by a subsequent will *
revokes the gift without adding any further words of
disposition. Here the court will hold that the share is
undisposed of (^per BuCKLEY, J., in la re Radrliffe,
Youaq V. Beale (1903), 51 W. R. 409, at p. 410. But in
the same way where the testator shows any intention that
ih<' rcvokcij share should fall into the residue and go to
tht* [)ersons to whom the rciiiaiiiilcr of the residue was
h'ft, tlie rule will not a|ipl\ . 'rhii>, in //; re Radclifl'e,
Vaunt/ V. Beale, snj'rit, a testatrix li-t'i her rcsiduaiv estate
to four named pcrseuis, A., 1>., ( '. and D., "as tenants in
conunon and if oidv one of them shall surviv<' me then to
such one al>solutelv." I>v a coiHcil sh<' revoked thf gilt
to D., but made no new disp<jsition ol' it : Held, that the
gift over of lapsed shar<'< to tin* sole survivor if oidy <»ne
ol' the legutee.H survived was a siifticii-nl iudi<:ii ion to >ho\v
that the revocation was to be n-ad >imply as a removal of
j).'- nam<* from among tlie p(M>on"^ uho ui-rt- to share in
tin- re-iilii-'.

1^0 1'a1;T III, — DkSCKII'TIOX n|- I'uol'KKTV.

Art. 27.
Pau.\(;i;ai>i[ (I).

I'^V*^' Tllis is tlic nil(':is('st;il)Iisli<Ml m //i re I sum-, Harrison \.

i'esitluar\' , p -. , ...

ulausos. Isaar^ [11)0.)| 1 CIi. -127. 1 here :i testator l)y his will

:i|ii)oiiite(l 11. lii-> executor, then ;;:n(' jieciiiiiarv leeju-ics to

sixteen persons, ineludin^- li., l)('(|ueuthe(l his watch to his

noplu'W, and then diret'ted that " tlie rcniaiiKh'r of" his

'' ])r()]ierty " shoidd " |iass as t'oUows viz. to lie dixided

anionii'st" certaiii iianieil persons in defineil -hai-es.

The will concluded as I'ollows: "And T aitpoint my

executor my residuary leo;atee." Two of the pecuniarv

legacies lapsed by the death of the legatees in the testator's

lifetime : — Held, that they were part of "the remainder"

of his "property" and passed to the first residuary

legatees and not to •■ mv residuary len-atee."

In his judgment. lUcKLKV. d.. said : '"If the will had
not contaiiUHl these last words ap})ointing the executor
residuary legatee it seems to me that the words ' the
remaiudei' of my propei-tv sliall pa.-<.' etc., would have
constituted a perfectly good residuary becjuest. l)ut the
will does contain the words I have mentioned. I)oes
that fact alter the construction which I have })laced on the
first residuary gift ? I do not think it does, unless the
effect be to reduce the earlier words to silence. Is it
possi!)le, without doing this, to give a proper effect to the
later words ? In my judgment it is, because if the prioi-
gift of one or more of the shares of ' the remainder ' were
to fail, owing to a lapse by the death of the legatee in the
lifetime of the testator, the sub.sequent disposition
appointing" a residuary legatee would take effect. If some
person entitled to a share of the remainder died in the
lifetime of the testator there would be a lapse of a part of
the first-disposed-of residue, and under the second dis-
position tlie residuary legatee would take something."

Johns V. Wilson, [11)05] 1 I. W. oA'l, whicli was not
cited in In re Isaac, supra, agrees with that case, save

Chap. IV. — Special Rules as to Wills. Itil

that the court seemed to think that the effect was to give -A-rt, 27.
the second residiiarv ^ift nothing to operate upon. Para. (4).

It niav he respectfully suggested that in l)oth these cases Observations
, , ' , 1 / 1 -1 rt ■ ■ • ■ ., on In re

the testator meant what he said. Frniui fane remanider inaac.

ot" "jiroperty" means the testator's property less the

precluding gifts. To prevent intestacy the court, unless

a contrary intention api>ears, reads it as a residuary gift

in the technical sense — that is. one carrying with it all

the preceding gifts wliieh do not take effect. But if the

testator a[)points a residuary legatee — that is, a person to

take gifts which fail — surely this might reasonably be

held to indicate his intention that bv givino; the remainder

of his property he means a gift of the remainder of hi>

]iro])ertv and not a residuary l)e([uest ?

Art. 28. — When ''Estate" jcill include both Beat and
Personal Estate.

(1) Prima facie, a general gift of the residue of the
testator's " estate," without more, will include his real
as well as his personal estate. But if other words are
used in addition to " estate " then

(a) if such other words are not in Ihciaselves
sufiicient to include all the pers(jnul estate,
the word estate will be restricted to personal
estate ;
(])) but if the other words are in themselves .sufticicnt
to Hiclude all tin; personal estate tiien the
word estate will be extended to real estate, for
otherwise it wouhl lie

('2) When th<- words used arc; sulVicicnl to inchulc in
the gift both tiu; real and ])ers(jnal estate of the testator,

W. M

162 Taut 111. Dhschiptkin of ruoi-Kinv.

Art. 28. the fact that the trusts declared of the property
iiK'hidcd in the <jjil't are trusts only applicable to
personal estate will not be enough to show that the
real estate was not intended to be included or to p^ive
rise to a resulting trust of the real estate.

Paragraph (1).

Authorities " The general ])riuciple.s applicable to cases of this ?ort

are well establislied. The difficulty is not in asc('rtainin<i"
the ])riiK'ipl('s, but in their application. One rule is that
the word edate simply is sufficient to ])ass real eatate ; but
in most cases the word estate is not used simply ; and
another rule is, that supposing there is nothing in other
parts of the will to control the meaning of the gift, the
effect of the word estate, coupled with other words, is this :
If the other words would, without the word estate, not b(!
sufficient to pass the whole personal estate, the word estate
will be considered as used to effect a complete passing of
the personal estate ; but if the other words are sufficient
to pass all the personal estate then the word estate must be
read as intended to apply to real estate" {per Kinders-
LEY, V.-C, mD'Almaine v. Moselei/ (1853), 1 Dr.-w. 62i),
at p. 632).

Illustrations. In D^Almai/ie V. Moseleij, sujira, a testator left all the
residue of his " estate and effects " to A., B.. and ( ".. iijx)))
trust to collect, get in, and recover the same, and invest
in stock and pay the interest and dividends to his wife for
life, and from and after her death to divide the residue
amonc; his children : — Held, that the real as well as the
personal estate passed. " The rule Ijeing," as Ktndeks-
LEY, V.-C, explained (at p. 632), " that the word estate
is sufficient to pass real estate, and the other words nx-d
in this case being eferts (which is sufficient to pass all the
personal estate, so far as the language is concerned), ^^jvma
facie, the word estate here would c(jnij»ris(' the real estate ;

Chap. IV. — Special Rules as to Wills. 1G3

Para, (1).

and unless there is something; in the will to show a clear Art. 28.
indication of intention to nse the word estate in a sense
ditierent from its ordinary leo-al sense, it must l)e rejid in
that sense . . . The tendency of modern decision is
to «;ive less effect to minute and trivial matters than was
attributed to them in former times."

Pahaguaph (2).

'"The circumstance of his using expressions and giving Autliority.
directions applicable only to the personal estate, may prove
that he did not at the time consider, or was not aware,
that this fee would be part of his residue ; but if such
knowledge be not necessary, as it certainly is not, to give
validity to the devise, the absence of it, though so mani-
fested, cannot destroy the operation of the general intent
of passing all the residue of his j)roperty " (per Lord
( "dttknham. L.C.,in Saiimarez x.Sauinarei (183^), -i My. &
<r. ii.'.l. at p. -UO).

The case of DWbnaine v. .}f<)selc'/, xitpra, is an illustra- Illustiatious.
tion of this j)aragraph ; l)Ut Kir/nj->Sinith\./\trnell, [1903]
1 ( "h. 4>!;). may Itc considered the leading case upon it,
since ill hi- judgmriit BicKLEV, . I., discusses nearly all the
decisions iijioii b(jtli parts (if tlic aliuNc ai-tic]c.

Tiiere the testator made this gift : " As to all iii\- rcadv
money, securities for money, -lock in aii\- of the |iiiMic
stocks of Great Britain, and all iIk' n-st, roidiic and
r<'maind<'r ol' my <'st;ite and effects whatsoever ami where -
.-(X'Ncr. 1 gi\i' ami })C(|iM'atli th<^ same and cmtx paii
lh<'r(-of to the -aid K. and S." — wlii^ni he .ilrr.KK-
ap|ioiiited his (ixecutors — "their <'.\(MaMiiiv-. adniini-l i;iioi-s
and a>'«ign>,"' upon tni-t- \\hicli n'latc(l to the income,
«|e»cribed as '* income or •• intere-l, dividends and annnal
proceeds" (in some |.j,iee-. " jirodnee *"). and to r,,r/'iis
<le»eribed ■.onjetinie> a» "the Miid trn-l moneys, stocks,
fimd"* and ^ecuritic•>.," anil in other places as "ihc >aid

164 PAitT III. — DKscuirnoN of l*itoi'i;uTY.

Art. 28. trust iiioiu'ys." He alxi ciniiowcrcMl the trustees t() Miry
PariTT^) ^^^ securities. It \v;i> :ir;j,ii(M| lii->t tlint llif words wci-c not
sufficient to pass the testators i-c;il estate, ami seeoiitllv. that
if they were, tlie trusts declared hein^' iiia|i|ili(al)le to real
estate, there was a resultiiie- trust as to it. I'l c'ki,i:v, d.,
first laid (U)\vn the jiriiiciples to be ajiplied to the iiiter|)re-
tation ot tile will in this way : " First, 1 ()U<;ht to read the
whole of the will, and from it ascertain tlie testator's in-
tention : >econdJ\-, in asceiiainin^ the inleniion I oii;i,ht
to a certain extent — we all know wiiat the ex[)ression
means — to lean against an intestacy, and not to ))resuMie
that the testator meant to die intestate, if, on a t'aii- con-
struction, there is reason for saying the contrary. Thirdly.
where the testator uses technical words, I must give them
their due eiFect, unless I find that in the moutii of the
testator they have some other meaning. Foui-thly, I must
a])ply any established rule of construction which has l)een
adopted by the court." Then he hold (api)lying these
])rinci|il<'-) that, firstly, the words were sufficient to pass
both real and personal estate, and that, secondly, the trusts
declared did not raise a resulting trust of the real estate
in favour of the heir-at-law.

Art. 29. — "Land " includes Freeholds, Copyholds, and

A gift, ill a will, of property described merely as
" land," or in any other general manner which would
be sufficient to describe a copyhold or leasehold estate
if the testator had no freehold estate which could be
described by it, will include any copyhold and leasehold
as well as freehold estates described by it, unless a
contrary intention shall appear by the will itself.

" A devise of the land of the testator, or of the land of
the testator in any ])lace or in the occupation of any person

Chap. IV. — Spkciai. Kilks as to AVills. Itl."

mentioned in liis will, or otherwise deseriheil in a <iener:il Art. 29.
manner, and anv other general devise which would describe
a customary, copvhold, or leasehold estate it' the testatoi-
had no freehold estate which could be described by it, shall
be construed to include the customary, copyhold, and lease-
hold estates of the testator, or his customary, copyhold, and
leasehold estates, or any of them, to which such ilescription
shall extend, as the case may be, as well as freehold estates,
unless a contrary intention shall ap})ear by the will "
(7 AVill. 4 A: 1 Vict. c. 2t;, s. 26).

•• Before the i)assing- of 7 Will. 4 & 1 Vict. c. 20 the Authorities,
leaseholds would nor pass under such a devise as this,
unless the will showed elsewhere a clear intention that
they should do so ; but since the Act a contrary intention
must be positively shown, in order to ])revent them from
so passing" {per Lord C'ampp.ell, in Wilson v. Eden
(1S.=)2). \X (}. Vk fx.s.) 474, at j). 487).

•* The object of that section was to abrogate a merely
technical rule, tending in many cases to defeat the intention
of testators naturally using language, and not to establish,
instead of that technical rule, another technical rule, which
in i)articular cases might have a like effect in the contrary
direction. The intention is to be regaiiled. and really all
the clause does which is material for present purposes, is in
conformity witli what 1 should say was rightly considered
bv the legislature to be the natural />rhni} facie use of
language, to alter the <»////.v- jirnlKiinU mid to tlnow it on
persons who di-nv that in ;i will ' I;ind * \v:i- nic;nit to
include leiixdiold estates in land"" ( yr/' Lord Si;i,l',( lUNK. ( '.,
in I'rt'srotf V. Ii<u-Ler ( 1.^7 1 ). :'.(• I.. T. Mil).

'"The stJitut*' says that ' h-iiseludds ' are (o ]ia« * unless
:i contrary intention -li.dl appear by the will." What is
the meaning ol" that y It inii-t be tliiit tlx* court, having
tix' construction of the will to ilctiiniinc. must be sMlislied,
by H'garding every part of it, tlint the ti-talor did not

166 Part III. — Description of Property.

Art. 29. intend under a ij,('ner;d de\ ise ot lands and liereditanieiits
to pass tlie loasoliold jiroixTty "" {per Malins, V.-C, in
Prrsroff V. Barkt')- (l.sTl), 2!» L. T. 727. ni i:\0).

Does s. -JO The only torni sjx't'itically reterrcd to in s. 2G is " land."

estate'^' ^*^^ l)ut tluM-o is added "'and any other general devise winch
would deserihe a customary, copyhold, or leasehold otate
it" the testator had no freehold estate." This phrase lias
given rise to some uncertainty whether or not such words
as ''real estate" or others descriptive properly of freeholds
only are within the section. Before the Wills Act the words
" real estate at A." would carry not merely the freeholds
but also the leaseholds which were mixed uj) in situation

Online LibraryArthur UnderhillThe principles of the interpretation of wills and settlements → online text (page 19 of 42)