1819. HARDING V. means of shewing, that the devisor did not use it in its legal sense: but the devisor may restrict the word "estate," and use it in its popular sense; and how is GARDNER. it possible to know that he has done so, if not by superadded words of local description, such as are used in the present devise? If he uses the word only in its popular sense, meaning the land itself, and says nothing about the interest, the heir shall not be excluded but by express words conveying a fee. Now the criterion, by which it has always been ascertained, whether or no the devisor meant to use the word estate in its legal or popular sense, has been the addition or omission of superadded words of local description. A man's interest cannot consist of thirty acres, though his estate, in the popular sense, (that is, his possessions,) may. What interest he may have in his estate of thirty acres is completely excluded from view by the addition of the words thirty acres to the word estate. In Pettiwarde v. Prescott (a), the Master of the Rolls says, "At an early period it was doubted, whether the word "estate" merely was to be applied to the land only, or to the interest in it: it has been long settled, that it is of itself sufficient to carry the fee. But, when words of locality, as "in" or "at" a particular place are added, the ques tion is, whether they do not narrow and restrain the import of that word. So lately as Lord Talbot's time, this was a subject of doubt and controversy. In Ibbetson v. Beckwith (b) it was strenuously argued, that under a devise of "all my estate" nothing passed but an estate for life. It does not appear from the report, but is stated in a note in Peere Williams (c), that that case first came on at the Rolls; where it was held, that the devisee took only an estate for life. Lord Talbot, how (a) 7 Ves. 541. (b) For. 157. (c) 2 P. Will. 337 1819. HARDING ข. ever, was of opinion, not, as may be collected from his judgment, that these words necessarily imported a fee, but, that upon the whole will it was sufficiently apparent, that the devisor meant a fee to pass. Some years GARDner. afterwards, Goodwyn v. Goodwyn (a) occurred before Lord Hardwicke, who expressed much doubt, whether the estate in fee passed by the force of the words "all my estate." The question remained undecided, and no case very nearly resembling it has since received a decision. But both Lord Mansfield and Lord Kenyon have stated opinions similar to that, to which Lord Hardwicke appears to have inclined, the former in Hogan v. Jackson (b); and in Fletcher v. Smiton, Lord Kenyon says (c), "There are cases in which nice distinctions have been taken between a devise of an estate at such a place, and a devise of an estate in a particular place; and Lord Hardwicke alluded to it in the case cited in Vesey (d); but he added, that there is no case in which it is held, that a fee passed by the devise of an estate, if the testator added to it in the occupation of any particular tenant;' and I admit, that the word, 'estate' may be so coupled with plain the general sense, in which it would otherwise be taken, and to confine it to mean farms and tenements. But that is not the present case, no such words are here superadded to estates." In that case, we see, the Master of the Rolls expressly adverts to the modern doctrine that the word "estate" is allowed to carry a fee in certain cases, and does not cut it down by any narrower construction than prevails at present, so that from first Vesey down to 1802, we have the concurring judgments of Lords Hardwicke, Mansfield, Kenyon, and Sir W. Grant, that there is no instance of its carrying (a) 1 Ves. 226. (b) Corp. 299. other words, as to ex (c) 2 Term Rep. B. R. 658. a fee, 1819. HARDING บ. a fee, when restrained and confined to mere local description, by the addition of the words "in the occupation of such or such a person." The Master of the GARDNER. Rolls then continues, "The question here is, whether the superadded words do not clearly shew that the devisor did not mean to speak of the quantity of his legal interest, but merely the corpus or subject, in the disposition. I am of opinion, they do. His words are not all my estate', but my copyhold estate at Putney, consisting of three tenements,' &c.: that is The estate I give you at Putney consists of three tenements,' which is the same as saying, Three tenements compose the estate I give you :' a mere description of the thing, and not of his interest. That he meant to give the houses absolutely there is little doubt. So a testator generally does, when giving under any description. But we must look at what he says, not at what he thought." In Randall v. Tuchin, "estate" was the operative word, and none were added, but such as would restrict it to the designation of interest. Heath J. there said, "The principle is, that where the word "estates" is an operative word, it passes a fee, and to try whether it be operative or not, the test is, to strike it out of the will, which test being applied here, the devise becomes nonsense." In the present case," estate" is not the operative word. Roe v. Wright advances the Plaintiff's case as little as the preceding: Lord Ellenborough there says, that the vice of the construction contended for is, that estate and land must be taken to mean the same thing as land alone, and by that construction the word "estate" must be dropped out of the will. There, therefore, the word "estate" could only apply to interest, or the word "land" must have been omitted, for the restrictive words there, descriptive of locality, follow after and belong to the word "land," and not to the word " estate," and it would have been hard indeed to have transposed them from the place where they stood, and have affixed them to the word "estate," for the purpose of defeating the devisor's intention. be Copley in reply. It certainly cannot be contended, that the case in Vesey does not apply, and if the Court thinks it outweighs the subsequent authority, they must decide accordingly. As to the two senses that may be affixed to the word "estate," that word, and every other, must be taken in its proper and technical sense, unless there is something to show that it was not so meant. The onus of showing that rests with the party who impeaches its regular application. Prima facié it is to be taken in its technical sense, and it ought to be clearly shown that the testator meant to exclude that sense. The words "Sudbury Harrow, in the county of Middlesex," were necessarily used by the devisor in the present case for the purpose of shewing where his estate, and the interest in it, lay. But it has been said, how can an estate, which is a mere interest in property, called "thirty acres?" In the same manner it might have been asked in Roe v. Wright, how it could be called "a coal yard;" but Lord Ellenborough has explained this by saying, that as the word "estate" includes the idea of interest, the devise is, in effect, a devise of the devisor's interest in a coal yard. If the devisor in the present case had said, "all my estate and interest consisting of thirty acres," would there have been any impropriety in the expression? especially after Lord Ellenborough has explained the subsequent descriptive words to do no more than point out the subject-matter of the interest. Heath J., in Randall v. Tuchin, only said, "If you find that by striking out the word estate,' the remainder must be nonsense, then 'estate' is expressive of interest;" but it does not, there fore, 1819. HARDING V. GARDNER, 1819. HARDING v. GARDNER. If it be retained here, fore, follow, that it ought to be struck out, because the and that construction can express nothing else than the interest to be conveyed. The case in 7th Vesey cannot be reconciled in principle with the other decisions. Cur, adv. vult. The following certificate was afterward sent: "This case has been argued before us by Counsel. We have considered it, and are of opinion that James Gardner, the dewisee under the devise in the will of Stanley Gardner, deceased, of the estate at Sudbury Harrow, takes an estate in fee-simple. R. DALLAS. May 28. 1819." T. A. PARK. J. RICHARDSON. May 17. Agreement for a lease for 63 years from Ist of May 1801; the lessee to be allowed three BONNER v. LIDDELL and Others. 'THE parties to the above cause had entered into an agreement, dated 19th January, 1801, for a lease of certain coal mines. That part of the agreement, which specified the proposed duration of the lease, was as fol Ax years from that time for winning the colliery without payment of any rent. arbitrator, being authorized to give such direction for a lease according to the agreement as he should think fit, directed a lease for 63 years from the 1st of May, 1804: Held that he had exceeded his authority, and that the award was bad. lows: |