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In September, 1832, Luke Wall made his will, containing the following devise, which included in it his interest in the lease: "And as for and concerning all my real, freehold, and personal property, which I now possess or am entitled to, I give, devise and bequeath the same and every part thereof unto my dear wife and my children, Margaret, Anne, Ellen, Mary, Joseph, Luke, Christopher, and Valentine, share and share alike:" and died shortly afterwards.

Mary Wall and Christopher Wall, having survived the testator, died intestate and unmarried.

This suit was instituted to administer the assets of Luke Wall, and to carry the trusts of his will into execution: and under the decree to account pronounced in it, the Master reported that the shares of Mary Wall and Christopher Wall in the lands demised by the lease of 1831, descended upon and were vested in Joseph Wall, their eldest brother and heir-at-law.

To this report exceptions were taken upon behalf of some of the younger children of the testator, upon the ground that the Master should have found that, upon the death of Mary Wall, her share in the freehold estates, which were estates pur auter vie, and devised by the testator to his wife and children share and share alike, without naming any special occupants, vested in her personal representatives. A similar exception was taken to the finding of the Master with respect to Christopher Wall's share.

Mr. Fitzgibbon and Mr. Connor, in support of the exception, cited Doe d. Lewis v. Lewis, 9 M. & W. 662, and were proceeding to argue the case, when they were stopped by

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THE LORD CHANCELLOR. [SIR EDWARD BURTENSHAW SUGDEN.] I cannot permit this exception to be argued. If ever a point was closed by decision it is this; that where a man has an estate pur auter vie, limited to him and his heirs, and devises that estate, by words which, without words of limitation, would pass the quasi inheritance · as the words here would — and the devisee dies intestate, the persons to take are the heirs and not the personal representatives of the devisee. The point was so decided in this country many years since; and that decision has been followed in England; and many opinions have been given on it. I must therefore decline to hear the question argued; for I will not be auxiliary to unsettle settled opinions. The case of Doe d. Lewis v. Lewis is distinguishable. There the devise was to a man and his assigns, which, it was held, did not mean heirs: but in this case the devise is in general terms, and in words which are sufficient to pass the entire interest under the lease. If this had been a fee simple estate, it would have gone to the devisee and his heirs under the terms of this devise. The testator gives all his interest in the lands to his devisees; and both law and good sense require that they should take the same interest which he himself had. It is a settled point, and not now open to 1 See Blake v. Jones d. Blake, 1. Hud. & Bro. 227 n.; Philpotts v. James, 3 Doug. 425.- REP.

be disturbed. It was settled by a case in this country, decided upon great consideration, which has been since recognized and acted on. I shall therefore follow those authorities, and leave the error, if it be one, to be corrected elsewhere.1

1 In Philpotts d. Philpotts v. James, 3 Doug. 425 (1784), A., seised of an estate pur auter vie to him and his heirs, devised it to B (without more). B. died without leaving a valid will. Lord Mansfield and the Court of King's Bench were of opinion that B.'s heir, and not his personal representative, was entitled. B.'s heir was, however, also the heir of A., and the case may perhaps rest on the ground that B. took an interest for his own life only. See opinion of Buller, J., and also note to St. 29 Car. II. c. 3, § 12, p. 39, ante.

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"It has often occurred to me in practice, says Sir W. D. Evans, to meet with a case where the estate was demised to the lessee, his heirs and assigns; and the lessee had devised it in general terms, without mentioning executors or heirs; and, after the death of the assignee, it has been a question how it should go. I have seen opposite opinions on the subject by Lord Kenyon and Mr. Fearne the latter in favor of the heir; the former in favor of the executor, which opinion was persisted in after a com. munication of the opposite sentiments of Mr. Fearne. And it is no doubt the true conclusion upon the subject: for, as there is no actual designation of the person of the heir, the ground on which he could claim, as special occupant, entirely fails; and the case, therefore, reverts to the general disposition of the Statute of Frauds, that where there is no special occupant, it shall go to the executor."- Chambers, Landlord and Tenant, 563.

In Doe d. Kerr v. Cassidy, 1 Huds. & B. 222, note (1807), and Jack d. Alexander v. Jamieson, Id. 225, note (1811), the Court of King's Bench in Ireland decided in favor of the executor. In the first case DOWNES, C. J., said, “I wished to have this case spread on the record, not from any doubt of my own, but an alleged difference of opinion among respected individuals at the bar." In the second case he said, "The same point, precisely, was decided in the case of The Lessee of Kerr v. Cassidy, and no reason has been shown why we should change our opinion. We regret that we have allowed this to be argued, which we would not have done, had we been at first aware, that the point was the same as in the former case."

But in Blake v. Jones, 1 Huds. & B. 227, note (1813), the Court of Exchequer Chamber in Ireland, affirming the judgment of the Court of Common Pleas, held for the heir.

But see Croker v. Brady, 4 L. R. Ir. 61, 653.

CHAPTER IV.

GIFTS MORTIS CAUSA.

DRURY v. SMITH.

CHANCERY. 1718.

[Reported 1 P. Wms. 404.]

A. HAD a nephew, and being about making his will, directed the scrivener employed by him for that purpose to give £100 to his nephew ; afterwards the testator, recollecting that his nephew had £100 of his in his hands, therefore ordered the scrivener not to put the legacy into his will, in regard his nephew had already that £100 in his own hands, and the testator made B. (that was his niece) executrix and residuary legatee.

Afterwards the nephew came, and brought a specie bill for this £100 to the testator, who, in his last sickness, gave the said £100 bill to be delivered over to his nephew, in case he [the testator] should die of that sickness, which did accordingly happen.

And now, on the nephew's bringing a bill against the executrix, for this £100 note, it was objected, that this being a parol gift, and contrary to the will by which the executrix was made residuary legatee, it would introduce all the inconvenience of perjury which the Statute of Frauds intended to prevent, if such evidence, or verbal dispositions, should prevail against the will, and would be contrary to the words of the Statute, which say, a will in writing shall not be revoked by parol.

LORD CHANCELLOR. [LORD COWPER.] The case is not so strong as if this very £100 note had been specifically devised; for devising the residuum is only the rest of his estate, that he should not, by will or otherwise, dispose of; but this is a gift in the testator's life-time, donatio causa mortis, and the possession transmuted, and certainly, notwithstanding the will, the testator had a power to give away any part of his estate in his life-time; he might in his life-time, after the making of his will, give away any part of his estate absolutely, and by the same reason might, notwithstanding the will, give away any part thereof conditionally; and this gift being so fully proved:

Decree the plaintiff his £100 bill with costs.

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THE testator being languishing upon his death-bed, delivered to his wife a purse of gold containing about 100 guineas, and bid her apply it to no other use but her own, and likewise drew a bill upon a goldsmith to pay £100 to his wife, to buy her mourning and to maintain her until her life-rent (meaning her jointure) should become due, and soon afterwards (viz., about seventeen days after the drawing of the bill) the testator died.

This coming on upon the Master's report, the MASTER OF The Rolls [SIR JOSEPH JEKYLL] was clearly of opinion, that as to the purse of gold, it was donatio causa mortis, in regard the testator was then languishing upon his death-bed; and therefore, it being in nature of a legacy, and not to take effect but in case of the donor's death, under such circumstances a man might give to his wife; and it was the stronger, it being said that she was to apply it to no other use but her own; for consequently she was not to apply it to her husband's

use.

His Honor further observed, that this being donatio causa mortis, need not be proved with the testator's will, neither need any such gift, though in nature of a legacy, be so proved; for they operate as a declaration of trust upon the executor.

As to the other point, the court at first held, that the testator's ordering the goldsmith to pay £100 to his wife was but an authority, and determined by the testator's death.

To which Mr. Vernon replied, that this was an authority coupled with an interest, and being given for mourning, it could not take effect but upon the testator's death, and therefore his death could not be a revocation; which seemed to have weight; but His Honor doubted whether there could be a donatio causa mortis without an actual delivery to such donee; at least, it was a point not settled, for which reason, he would (he said) reserve it for further consideration.

Afterwards in Hilary Vacation, 1718, the MASTER OF THE ROLLS delivered his opinion solemnly on both these points:

That the delivery of the purse was good; and must operate as a donatio causa mortis, ut res magis valeat, &c. Because otherwise one could not give to his own wife, and there being a delivery by the testator in his last sickness, and when he was so near his end, and the bidding his wife apply it to no other use than her own, made this part of the case plain; and he cited Swinburne, 18, where it appears there are three sorts of gifts causa mortis, and said this was in the nature of a legacy to the wife.

Secondly, as to the bill of £100 drawn upon his goldsmith, payable to his wife to buy her mourning and to maintain her until her life-rent (viz. jointure) should come in:

This His Honor held good, and to operate as an appointment; that if the wife had received it during the husband's life-time it would have been liable to some dispute, but that he apprehended this amounted to a direction to his executors that the £100 should be appropriated to his wife's use. And he inclined to think, that even if the wife had received it in the husband's life-time, she should have kept it; that being for mourning, it might operate like a direction given by the testator touching his funeral, which ought to be observed, though not in the will; that the court ought to go as far as it could to assist the meaning of the party in this case; here was a wife attending her husband in his last sickness, and the husband, sensible of her affections, was conferring gifts upon her, and those not extravagant (for then he admitted equity ought not to make them good), but the gifts were but £200, whereas the personal estate amounted to £8,000, so that this was only an instance of the tender care of an affectionate husband towards his wife; wherefore it was decreed accordingly.

MILLER v. MILLER.

CHANCERY. 1735.

[Reported 3 P. Wms. 356.]

ONE having a wife and a son that was his only child, two days before his death made his will, giving thereby to his wife £150 per annum, in long exchequer annuities, during her widowhood. After which the same day he made a codicil, by which he gave to his said wife a further exchequer annuity and £600 in money, to be paid her immediately after his death. Subsequent to this, and about an hour before his death, the testator having called to his servant to reach him his pocketbook, took thereout two bank notes for £300 each, and another note for £100 (not being a cash note, or payable to bearer) all which notes he ordered his servant to deliver to his wife (then present) adding, that he had not done enough for her. But the wife for some time declined taking these, having, as she said, enough already, and for that it would injure their son, who was the residuary legatee in the will. Nevertheless, at length she was prevailed on by her husband to accept of the two bank notes, and also the other note. After which the testator by word of mouth gave her his coach and a pair of his coach-horses, bidding three witnesses then present take notice of it, and that he was in his senses, who accordingly made a memorandum thereof in writing.

On a bill brought in the name of the infant son by his prochein amy, against the widow and the executors, for an account of the testator's

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