and assigns forever." The testator died on the 21st of February, 1754, leaving Henry, his eldest son and heir, two other sons, and five daughters. Henry (who survived his wife, Elizabeth) died on the 17th of September, 1769, and never had any issue. Qu. Whether the said Humphrey Davis, under either of the clauses in this will, is entitled to recover?

Glyn, for the plaintiff.

Davy, for defendant.

DE GREY, C. J. There are some propositions clearly established, which will give light to this case. Personal estate, being of a fluctuating nature, must go to a residuary legatee in the same state as it happens to be at the death of the testator. Not so real estates, which are of a more permanent nature; for there only such will pass by a residuary devise as the testator really meant to devise at the time of making his will. Therefore, in the case of Doe and Underdown [Willes, 293], an estate that lapsed afterwards by the death of a devisee did not go to the devisee of the residuum. Again it is certain, that a reversionary interest, which the testator then has, will (if nothing be mentioned of it) pass by a residuary devise. And there may be cases where a reversion of an estate devised to a man's own heirs may pass to a residuary devisee under the general clause, and others where it will not. It is always a question of construction; and in Doe and Russel I think the court construed it right. No argument is to be drawn from the position of clauses in a will, but all are to be taken together. Neither is the present question upon the legal operation of a devise to a man's right heirs, but upon the testator's intention by such devise. It is said that the devise to the heir is nugatory, and must be rejected. But there is as much reason to reject the residuary devise as nugatory as the other. It is said that the devise of the reversion being a nullity, it falls into the residuum as being undevised. But it would rather fall under the second clause; for all undevised estates are subject to the trust, which this is not now contended to be. The whole is merely a question of intention, and you can never infer an intention from a sweeping residuary clause. The intention of the testator is clearly, that his heir at law should have the land, failing the issue of his body. As for authority: in Amesbury and Brown, 25th May, 1750; testatrix, having four sisters, devises particular estates to them, with remainder to her own right heirs. Afterwards, a general residuary clause to one of the sisters; and [she] had no other real estate. One of the particular estates determines. Lord Hardwicke held, that the reversion did not pass by this residuary clause, and that though the devise may not operate to make the heir take it by purchase, yet it is in the nature of an exception out of the residuary clause. This case was recognized and approved by Lord Northington in Robinson and Knight, 12th July, 1762, 2 Eden, 155, which was also a case of a residuary devise, and determined upon intention merely. I am therefore of opinion with the defendant.

GOULD, J., of the same opinion.

BLACKSTONE, J., of the same opinion. Here are three dispositions. The first clause devises specific lands to his son and daughter in tail, with remainder to his own right heirs. The second devises such estates in point of locality as he had not before devised, to Davis, to be sold for the benefit of his younger children. The estate in question cannot come under this description, for it is previously devised. The third clause devises such estates, as well in point of interest as locality, as he had not before devised, to Davis absolutely in fee. For residue and remainder are relative expressions, and must refer to what had been before devised. Whether the devise of the reversion to his right heirs could, in point of law, take effect or not, it is in fact devised; and by such devise de facto it is (as Lord Hardwicke expresses it) excepted out of the general residuary clause. The residuary devise would extend to any latent reversions he might have in him, but not to those which he has expressly disposed of otherwise, unless there be special circumstances, as in Doe and Russel.

NARES, J., having been of counsel in the cause, gave no opinion. Judgment for the defendant.1

COVENANT for not repairing, on a lease for 21 years, which expired at Lady Day, 1807, made by the father of the plaintiff to the defendant. And the plaintiff declares, that his father was seised of part of the demised premises in fee, and of the residue, by copy of court-roll held of the manor of Tottenham in fee-simple, at the will of the lord, according to the custom of the manor; that he surrendered the copyhold part to the use of his will, and by his will devised the whole premises to his wife for life, provided she did not marry; and died seised, leaving his said wife, and the plaintiff, his only son and heir at law, him surviving; and that afterwards, and before the breach of covenant, the said wife died, and the said demised premises, with the appurtenances, descended to the plaintiff, as only son and heir at law of the lessor, whereby the plaintiff was, and continually hitherto hath been, and still is seised, &c.

Plea, that the demised premises, with the appurtenances, did not descend to the plaintiff as the only son and heir at law of the lessor, modo et forma.

On the trial, at the sittings after last Trinity Term, a verdict was found for the plaintiff, subject to the opinion of the court, on the ques

1 s. p. Doe d. Davis v. Saunders, Cowp. 420 (1776).

tion whether the plaintiff took by descent, or by devise under the will of his father, by which the father devised all his lands, as well freehold and leasehold, as copyhold, with their appurtenances, unto his wife for life, provided she did not marry, with power to grant building leases for 61 years, charged during that time with the payment of the yearly sum of £50 to his son, the plaintiff, if he should so long live, by four equal quarterly payments, and also finding him in board, washing, and lodging during his stay at the university, and during his studies in the profession of the law in London or otherwise, until such time as he should arrive to the age of 27 years; and also charged with the payment of the further yearly sum of £30, during his wife's life, unto his daughter Sarah, the wife of George Thompson, if she should so long live, and payable quarterly; and in case his said wife should marry, then and from the time of such marriage he devised all his said lands unto his said son, charged with the payment of the said yearly sum of £30 unto his daughter Sarah, in like manner as if his wife had not married; and also charged with the payment of the yearly sum of £100 to his wife during her life, payable quarterly; and from and after the decease of his said wife, he devised his said estates unto his said son, charged with the payment of the yearly sum of £100 unto his daughter Sarah during her life, payable quarterly. And upon the decease of the survivor of his wife and daughter he bequeathed the sum of £1500, to be equally divided between all the children of his said daughter then living, if more than one, and if there should be only one child, then the whole to go to such child; and in case she should not have any children or child living at the time of her decease, then he gave the said sum of £1500 to be disposed of by his said daughter in such manner as she should, by any deed or will attested by two witnesses, notwithstanding her present or any future coverture, appoint; and for want of such appointment the same to go to her executors and administrators. And it was his will that the said sum of £1500 should be paid within one year after the decease of his wife and daughter; and in default of payment, either of the yearly sum of £100 to his daughter in manner above mentioned, or of the sum of £1500, within the time above specified, he devised all his said lands, as well freehold and leasehold as copyhold, with the appurtenances, unto the said G. Thompson, his executors, administrators, and assigns, in trust, upon such default of payment, to raise and pay the said yearly sum of £100 out of the rents and profits, and the said sum of £1500 by sale or mortgage of a sufficient part of his said lands, and subject to the said several charges and trust he gave the said lands, after the decease of his wife, to his said son, his heirs, executors, administrators, and assigns. The testator's said daughter is still living.

If the court should be of opinion that the plaintiff took by descent, the verdict to stand; if not, a nonsuit to be entered.

Gaselee, for the plaintiff.

Marryat, contra.

LORD ELLENBOROUGH, C. J. If the estate devised to the trustee be an executory devise, the law will cast the estate of the heir on him by descent, until the contingency happens; if the trustee's estate be not an executory devise, I do not see that there is necessarily such an estate of freehold given to him as to break in upon and alter the quality of the estate which the heir would otherwise take.

BAYLEY, J. I am of the same opinion. In all these cases it is desirable that the heir should be in by descent, rather than by purchase; because it is convenient that the property should be assets in the hands of the heir. And the general rule is, that where the heir takes the same estate in nature and quality which the law would give him, he takes by descent. It appears by Mr. Ford's MS. note of Allam v. Heber, though this is not noticed either in Strange (Str. 1270), or Blackstone's report of that case (1 Black. 22), that the court denied Gilpin's Case, Cro. Car. 161, to be law. Impeached, therefore, as Gilpin's Case is, as well by what I have just remarked, as by the authority of Treby, C. J., and Powell, J., it is competent to us to examine the case, and in examining it to ask this question: whether a fee mounted upon a fee turns the first into a base fee? I think that it does not. Here the plaintiff's estate was a good estate in fee, the last an executory devise.

HOLROYD, J., being connected with the parties, declined giving any opinion.1

THE MASTER OF THE ROLLS. [LORD LANGDALE.] 2 In this case the question reserved was, whether the real estate which the testator devised to his heir at law, is to be taken as real assets, for payment of debts, in priority to real estates, by the same will devised to other persons.

The devise to the heir is made subject to the payment of an annuity of £50 to the testator's sister during her life, and after her death to the payment of £1,000 to her two children.

Notwithstanding the devise, and notwithstanding the charges, the heir takes by descent. Chaplin v. Leroux, 5 M. & S. 14. For the purpose of making him take otherwise than by descent, the devise is said to be void; and it is argued for the defendants that the devise is void for all purposes: that no intention can be applied to it: that the

1 In Doe d. Pratt v. Timins, 1 B. & Ald. 530 (1818), there was a devise to the heir, with an executory devise over in case he should not reach his majority. It was held that he took by descent. - ED.

2 The opinion only is given.

attempted devise must be treated as a mere nullity, and the estate therein comprised be considered merely as descended estates, and therefore as assets to be applied for the payment of debts, in priority to estates effectually devised.

But whatever may be the origin of the rule, which gives to the heir by descent, that which the testator has intended to devise; whether the rule be derived from the supposed application of a principle that a man shall not have by gift that which is his own without gift, as some have supposed; or whether the rule be adopted for the benefit of third persons, as of the lord for the preservation of tenure, or of creditors for the payment of their debts; or simply, as Mr. Justice Bayley said in Chaplin v. Leroux, because it is convenient that the property should be assets in the hands of the heir; there seems to be no reason, why, as against the heir, the rule should be extended further than the principle requires.

It cannot be said of estates expressed to be devised to the heir, as of estates not mentioned in the will, that they are "quite out of the scope of the testator's intention, perfectly beside and independent of it," 2 Bro. C. C. 262; it is indeed clear that an estate which the testator says he devised to the heir, is within the testator's intention, and meant to be a benefit to the heir. There is nothing illegal in that intention, and if the rule be founded on the regard due to third persons, as creditors or otherwise, there seems no reason for its application between the heir and other objects of the testator's bounty; and if the effect of the devise be to procure for the heir a contribution from the other devised estates towards payment of debts, which would otherwise have had to be borne by descended estates alone, it cannot be said that the heir obtains by gift something which was his own, without gift.

Courts of justice ought to carry into effect the intentions of testators as far as they can consistently with the rules of law; and in this case, although the rule of law makes the devised estates assets in the hands of the heir, and the creditors may, therefore, resort to this estate in priority to others, and without being embarrassed with the necessity of seeking contribution from other devisees; yet, as it appears by the expressions which the testator has used, to have been his intention that the devisee, who is heir, should partake of his bounty as well as other devisees, there seems to be no reason why, without prejudice to the claims of creditors or others, the heir should not enjoy the like benefit which is given to other devisees; or why those who claim under the will, and do not appear to be more objects of the testator's bounty, should be permitted to defeat the expressed intention in favor of the heir.

I do not think that the testator's intention can be excluded from the consideration of this question. The intention is not to prevail against the rule of law for the benefit of third persons. A testator cannot, as against creditors, exempt his personal estate from payment of his debts, or prevent his real estates from being assets, by devising them to his