1866. KYNNAIRD V. LESLIE. In Hilary Term Mellish obtained a rule accordingly, citing, as to the 1st point, Co. Litt. 8 a, where it is said, "But some have holden, that if a man after he be attainted of treason or felony have issue two sonnes, that the one of them cannot be heire to the other, because they could not be heir to the father, for that they never had any heritable blood in them," and Hobbey's case," William Hobbey ad issue fils et file, William le peire fuit attaint, fils purchase' et morust sans issue; question si le file inheritera a lui ou nemi; et resolve que cy. 1, fuert' nee devant l'attainder, et 1 ont loyal sank et heritable inter eux, que ne fuit perdue per corruption apres. 2. Sur ground de Litt' que dit, si fils purchase et n'ad heir de part le peire, le heir de part le mere avera ceo; issint icy coment que ne soit loyal sank inter fils et file per peire, uncore del part de mere est loyal sank" (a). That case, however, is observed upon in Collingwood v. Pace (b), where the Court were divided. As to the second point he cited Doe, Lessee of Stewart, v. Sheffield (c), where under a devise of land to "the sisters" of J. H. (generally), their heirs, &c., as tenants in common, and not as joint tenants, it was held, that one of three sisters of J. H., who alone survived at the time of the devise made, and who also survived the testator, was entitled to take the whole; and that even if she had been only entitled to a part, the residue would not have gone to the heir at law as in case of a lapsed devise; which supposes the deceased sisters to have been once capable of taking under the will; but to the residuary legatee, to whom was devised certain other lands, "and also all other the testator's lands, &c. not therein before disposed of, &c., and all other his real and personal estate whatsoever which he might be possessed of or entitled to," &c. (a) Palmer, 19, and S. C., 4 Leon. 5, and under the title of The King v. Boreston and Adams, Noy's Rep. 158. (b) O. Bridg. 410; S. C., 1 Vent. 413; 1 Sid. 193. (c) 13 East, 526. The Attorney-General (Sir R. Palmer) and Manisty (C. Hall and Quain with them) showed cause.-Unless the Plaintiff shows a better title than the Defendant, who is in possession and claims as devisee of his wife Dorothea, he must fail. Upon the death of Anne, the widow, in 1861, all the limitations in her husband's will antecedent to the limitation to the testator's own right heirs had come to an end; and the proposition advanced for the Plaintiff is, that if the testator had left an heir at law capable of taking by descent, such heir would have taken these estates, but that he had no heritable blood at the time of his death, and therefore that the estates in question devolved upon his widow under the residuary clause. Firstly, assuming that there was a failure of heirs for the reasons. suggested, that is immaterial to the Plaintiff's case. The testator died in 1814, and the law as altered by 3 & 4 Will. 4, c. 106, s. 3, and 7 Will. 4 & 1 Vict. c. 26, s. 25, is inapplicable here. The Plaintiff relies upon what before 1838 was the operation of a general devise of real estate in the residuary form. But every residuary devise in a will made before that year is a specific disposition of the lands not before expressed to be given by the will. "Thus, if a testator, being seised of Blackacre and Whiteacre, and having no other real estate, devise Blackacre to A. in fee, and all the rest of the lands to B., B. takes exactly that which he would have taken under a specific devise of Whiteacre, and no more; and consequently, if the devise to A. fail, from its being devoted to charity, or from the devisee being dead at the time, or from his subsequent death in the testator's lifetime, B. can no more take, by virtue of his residuary devise, the interest so given or intended to be given to A., than he could have done under a specific devise of another property:" 1 Jarman on Wills, 3rd ed. 610, where the authorities are collected, and at p. 612, the author seems to think Doe, Lessee of Stewart v. Sheffield (a), relied upon for the (a) 13 East, 526. 1866. KYNNAIRD v. LESLIE. 1866. KYNNAIRD บ. LESLIE. case. Plaintiff, bad law. It is for the Plaintiff to show that there is anything here to prevent the operation of the general rule. If, after carving out a partial or contingent interest, a testator limited the reversion in fee, or the alternative fee, to his own heirs, such devise, though inoperative in law to break the descent, until the recent enactment on the point (3 & 4 Will. 4, c. 106, s. 12), was considered to indicate an intention to exclude this property from the residuary clause, and accordingly such reversion devolved to the heir: 1 Jarman on Wills, 3rd ed. 615, citing Amesbury v. Brown, cited 2 W. Bl. 739; Robinson v. Knight (a); Smith d. Davis v. Saunders (b). As to the devolution to the heir, the same learned writer cites Morgan v. Surman (c), stating that the position in his text is rather an inference from than a point expressly decided in that Where a testator made the same disposition of his estate as the law would have done, as by devising his lands to his heir at law in fee, it was a mere nullity, and the heir would take by descent as the better title: 6 Cruise's Dig. 124, 4th ed. In Doe d. Morris v. Underdown (d), cited 6 Cruise's Dig. 133, 4th ed., the third proposition laid down is, that where a testator in his will had given away all his estate and interest in certain lands, so that if he were to die immediately nothing remained undisposed of, he could not intend to give anything in those lands to his residuary devisee. In Robinson v. Knight (a), Amesbury v. Brown is cited at p. 157, and set out as taken from the Register's Book in the Lord Chancellor's judgment at p. 160, and he there says that, "the principle upon which that case was determined was on the intent, that it (sic) was not intended to be comprised in the residuary devise, though there it was certain that the remainder was void, and that the heirs at law took by reverter and in descent. (a) 2 Eden, 155. (b) 2 W. Bl. 736; S. C., nomine Doe dem. Davis v. Saunders, Coup. 420. (c) 1 Taunt. 289. (d) Willes' Rep. 293. And it seems to be built on the cases determined at law, that a remainder void by lapse shall not fall into the residuary clause. Those cases are founded on sound reason, and I wonder that there was much difficulty about them; for where a man disposes of his whole interest in one thing, and gives the rest and residue of his possessions to another, it is very forced and absurd to suppose that by the words rest and residue used at the same instant, he meant a residue not existing, but which might by possibility exist. To this way of reasoning, indeed, is objected the case of personal estate, where the contrary doctrine prevails; but the true answer to that is, that the law, either from the words of the Statute of Wills, or from its favour to the heir, real property being in those times the material or general object of the law, has determined that a will speaks quoad the real estate from the time of making it, quoad the personal from the death of the testator." Robinson v. Knight and Amesbury v. Brown were approved of in 1770 in Smith dem. Davis v. Saunders (a), where it was laid down that a residuary clause would extend to every latent reversion which the testator might have in him, unless it were expressly excluded by devise to some other person; that in case such latter devise be to the testator's own right heirs, although they cannot take as purchasers, yet as the whole is merely a question of intention, it will equally operate as an exclusion of the residuary devise. The same point was afterwards decided upon the same will in Doe dem. Davis v. Saunders (b); and see Goodright dem. Earl of Buckinghamshire v. Marquis of Downshire (c), and the note, 2 Eden, 161. Amesbury v. Brown, which was not cited in Doe, Lessee of Stewart, v. Sheffield (d), and that class of cases, govern the present. The question is one of intention on the construction of the will, and it is not conceivable that the testator intended that these estates should go to the (a) 2 W. Bl. Rep. 736. (c) 2 Bos. & Pul. 600. 1866. KYNNAIRD v. LESLIE. |