No. 2. Doe d. Evans v. Evans and others. — Rule.

tence at the time the will is executed. Langdon v. Astor, 16 New York, 9; Willey's Estate, 128 California, 1; Shillaber's Estate, 74 id. 144, 5 Am. St. Rep. 433; Smith v. Smith, 54 New Jersey Equity, 1; Phelps v. Robbins, 40 Connecticut, 250; Baker's Appeal, 107 Pennsylvania State, 381; Magoohan's Will, 117 id. 238; Thayer v. Wellington, 9 Allen (Mass.), 283; Brown v. Clark, 77 New York, 369; Booth v. Baptist Church, 126 New York, 215, 247.

And in the absence of such a reference parol evidence is not admissible to show that the instrument was in existence at the date of the will. Page on Wills, ss. 162, 163. Accordingly a will giving a certain sum of money to a person in trust, to appropriate in such manner as the testator may, by any instrument in writing under his hand, direct and appoint, is ineffectual to create a valid bequest in favor of any person named by the testator as a beneficiary in a paper subsequently executed by him, but not attested in conformity to the statute of wills providing that no will shall be effectual "unless it be in writing and signed by the testator, or by some person in his presence and by his express direction, and attested and described in the presence of the testator by three or more competent witnesses." Thayer v. Wellington, 9 Allen (Mass.), 283; Langdon v. Astor, 3 Duer (N. Y.), 477, 16 New York, 9; Phelps v. Robbins, 40 Connecticut, 250; Hunt v. Evans, 134 Illinois, 496; Heidenheimer v. Bauman, 84 Texas, 174; Shillaber's Estate, 74 California, 144, 5 Am. St. Rep. 433.

The will should so describe the instrument to be incorporated as to make it capable of identification, though parol evidence is admissible to aid in such identification and to establish the genuineness of such instrument. Newton v. Seaman's Friend Society, 130 Massachusetts, 91, 93; Murphy's Estate, 104 California, 554; In re Soher, 78 California, 477; In re Sanderson, 62 New York State R. 225; Fesler v. Simpson, 58 Indiana, 83; Crosby v. Mason, 32 Connecticut, 482.

Although the writing is referred to in the will as existing, parol evidence is admissible to show that the writing referred to did not exist in fact, and if the Court is convinced by such evidence that the writing was not in existence when the will was executed, it cannot be admitted to probate as a part of the will. Shillaber's Estate, 74 California, 144; Hunt v. Evans, 134 Illinois, 496.

No. 2.-DOE D. EVANS v. EVANS.

(K. B. 1839.)

RULE.

THE gift in a will of "estate," not restrained by context, will pass all the testator's interest in real estate.

No. 2. Doe d. Evans v. Evans and others, 9 Adol. & Ellis, 719, 720.

Doe d. Evans v. Evans and others.

9 Adol. & Ellis 719-727 (s. c. 1 P. & D. 472; 8 L. J. (N. S.) Q. B. 212; 48 R. R. 657).

Tenant by demise to him and his heirs for lives devised as follows [719] (after legacies of money and furniture): "I give, bequeath, and devise. to my wife A. all my money, securities for money, goods, chattels, and estate and effects of what nature or kind soever, and wheresoever the same may be at the time of my death." And I appoint my said wife executrix. The heirat-law was not mentioned in any part of the will.

Held, that by the word "estate" the residue of the term passed to the widow.

Although it was contended that, by a covenant in the lease, such a disposal of the term would cause a forfeiture; on which point the Court gave no opinion.

Ejectment for messuages, land, &c., in Carmarthenshire. On the trial before COLERIDGE, J., at the Carmarthen Spring Assizes, 1837, it appeared that the lessor of the plaintiff claimed as eldest son and heir-at-law of Daniel Evans; the defendants, under a devise by Ann Evans, widow of the said Daniel.

Daniel Evans held the premises in question (a farm) under a lease thereof, granted by John Bartlett Allen to him and his heirs for certain' lives, which were not extinct when this action was brought. The premises were described as a messuage, tenement, and lands with the appurtenances. The lease contained a covenant by Daniel Evans, "that he the said D. E. and his heirs shall not nor will not at any time during the said term sell, alien, assign, or transfer this indenture of lease or the premises hereby demised, or any part thereof, or his or their estate and interest herein, for all or any part of the said term, without the leave or licence in writing of the said John Bartlett Allen, his heirs and assigns, for that purpose first had and obtained." And there was a proviso that, if Daniel Evans or his heirs should, during the term, sell, alien, or transfer, &c. (as above), without the leave, &c., the lease, and the term thereby granted, should cease, determine, and be void, and it should be lawful for the lessor, his heirs, &c., to re-enter.

*

Daniel Evans, being in possession under the above lease, made his will as follows: "I give and bequeath to my [*720] son John Evans the sum of £50. I give and bequeath to

Doe d. Evans v. Evans and others, 9 Adol. & Ellis, 720-727.

my daughter Margaret Evans the sum of £50. I give and bequeath to my son David Evans the sum of £50. And my will and meaning is, that the said several sums of £50 each be paid to them respectively when they attain the age of twenty-one years or day of marriage. Also I give and bequeath" (bequest of household furniture to the said John, Margaret, and David, to be provided for them by the executrix after-named, on their attaining twentyone, or marrying). “Also I give, bequeath, and devise unto my beloved wife, Ann Evans, all my money, securities for money, goods, chattels, and estate and effects, of what nature or kind soever, and wheresoever the same may or shall be at the time of my death. And I do nominate, constitute, and appoint my said. wife sole executrix of this my last will ånd testament, subject to my funeral expenses, the above legacies, and all my just debts, hereby revoking," &c. (revocation of all former wills). “In witness," &c.

Ann Evans survived Daniel Evans, continued in possession, devised the lands now in dispute, and died. The question was, whether or not these lands had passed to her by Daniel Evans's will. A verdict was taken for the plaintiff, with leave to move to enter a nonsuit or a verdict for the defendants. In the ensuing term a rule nisi was obtained according to the leave reserved. [After argument. ]

[727] Lord DENMAN, Ch. J., delivered the judgment of the Court:

The question was, whether, under the circumstances of this will, it was to be considered that the heir-at-law was passed over, and the testator's interest in the lands devised to Ann Evans, through whom the defendants claimed. And we think, adverting to the doctrine of Lord HARDWICKE in Tilley v. Simpson, 2 T. R. 659 n. (22 R. C. 837), that of Lord KENYON in Jongsma v. Jongsma, 1 Cox, 362, and the latter cases in which the same. principle has been acted upon as in those decisions, that the realty does pass by the word "estate" in this will, the term used being capable of passing it, and the accompanying words being satisfied by reference to the personal property. The rule will therefore be absolute.

Rule absolute.

No. 2. Doe d. Evans v. Evans and others. Notes.

ENGLISH NOTES.

This rule has already been anticipated under the topic "Real Estate," 22 R. C. 837, where the case of Tilley v. Simpson is employed as the ruling case. The notes to that case contain much of the subsequent case law relating to this subject.

It is to be observed that the point relied upon in Lord HARDWICKE'S judgment, that the words preceding the word "estate were sufficient to pass the whole personal estate, has not entered into the ratio decidendi of the more recent cases.

The following cases further illustrate the use of general words which have been construed as including real estate :

In Wilce v. Wilce (1831), 7 Bing. 664, 33 R. R. 606, the testator commenced his will with the words, "As touching such worldly property wherewith it has pleased God to bless me, I give, devise, and dispose of the same in manner following; " and, after various bequests and devises, concluded: "All the rest of my worldly goods, bonds, notes, book debts and ready money, and everything else I die possessed of, I give to my son George." It was held that George took a fee in lands of the testator not specifically devised by the will.

In Hamilton v. Buckmaster (1866), L. R. 3 Eq. 323, 36 L. J. Ch. 58, the testator, after saying that he thereby disposed of all his "worldly estate and effects in manner following," directed payment of his debts, &c., out of his personal estate, and that his executors should sell all his stocks, shares, and securities, and such other parts of his personal estate as was in its nature saleable, and collect and get in all money due and owing to him, and all other his estate, and convert the same into money, and stand possessed of the proceeds upon trust, &c. It was held by WOOD, V.-C., that the executrix, who in the absence of the co-executor (who was heir-at-law) had alone proved the will, could make a good title as vendor of a freehold house which belonged to the

testator.

In Evans v. Jones (1877), 46 L. J. Ex. 280, the testator had disposed of his property as follows: "First, I give and bequeath to my wife all my household furniture, linen, glass, china, plate, farming stock, and all my personal estate and effects, whatsoever and wheresover, and of what nature or kind soever, or whatever I may be possessed of at my decease, to and for her own sole use and benefit." It was held by the Exchequer Division that the real estate to which the testator was entitled at the time of his decease passed to the wife under this bequest.

Other general expressions which have been held sufficient to pass the real estate are "property," Re the Greenwich Hospital Improvements

No. 3. - Lambe v. Eames. - Rule.

Act (1855), 20 Beav. 458; — "all the rest," Attree v. Attree (1871), L. R. 11 Eq. 280, 40 L. J. Ch. 192; -"effects" (with context), Phillips v. Beal (1858), 25 Beav. 25; Smyth v. Smyth (1878), L. R. 3 Ch. 561; Hell v. Hall, 1891, 3 Ch. 389, 60 L. J. Ch. 802, 40 W. R. 138.

AMERICAN NOTES.

The word "estate" is sufficiently broad, in its import to carry real as well as personal property, unless limited or restricted by the context, or by some express or tacit reference to other provisions. Blagge v. Miles, 1 Story (U. S.), 426; In re Carrier, 47 Federal Rep. 438; Dewey v. Morgan, 18 Pickering (Mass.), 295; Godfrey v. Humphrey, id. 537; Tracy v. Kilborn, 3 Cushing (Mass.), 557; Putnam v. Emerson, 7 Metcalf (Mass.), 330; Warner v. Willard, 54 Connecticut, 470; Chapman v. Chick, 81 Maine, 109; Deering v. Tucker, 55 id. 284; Josselyn v. Hutchinson, 21 id. 339; Palmer v. Dougherty, 33 id. 502; Jackson v. De Lancy, 11 Johnson (N. Y.), 365; Jackson v. Merrill, 6 id. 185, 191; Terry v. Wiggins, 47 New York, 512; Taylor v. Dodd, 58 id. 335; Patterson v. Wilson, 101 North Carolina, 584; Priester v. Priester, 13 Richardson (S. C.), 361; Canedy v. Jones, 19 South Carolina, 297, 301; Ewin v. Park, 3 Head (Tenn.), 713; Backus v. Presbyterian Asso., 77 Maryland, 50, 57; Carter v. Gray, 58 New Jersey Equity, 411, 413; Den v. Drew, 14 New Jersey Law, 68; Cook v. Lanning, 40 New Jersey Equity, 369; Norris v. Clark, 10 New Jersey Equity, 51; Succession of Marks, 35 Louisiana Annual, 1054; Matthews v. Matthews, 13 id. 197; Smith v. Smith, 17 Grattan (Va.), 268; Crew v. Dixon, 129 Indiana, 85, 91; Goudie v. Johnston, 109 id. 427; Crawl v. Harrington, 33 Nebraska, 107, 112; Flannery v. Hightower, 97 Georgia, 592; Doe v. Kinney, 3 Indiana, 50; Andrews v. Brumfield, 32 Mississippi, 107; Shumate v. Bailey, 110 Missouri, 411; Hofius v. Hofius, 92 Pennsylvania State, 305; Naglee's Estate, 52 id. 154.

The word "estate" is limited to personalty only in case there are qualifying words, or in case this word is so connected with other words expressing only things personal as to limit their meaning. Hunt v. Hunt, 4 Gray (Mass.), 190, 193, per SHAW, Ch. J. Bullard v. Goffe, 20 Pickering (Mass.), 252, 258; Havens v. Havens, 1 Sandford Ch. (N. Y.) 324.

No. 3. LAMBE v. EAMES.

(L. J. J. 1871.)

RULE.

WORDS expressive of a general purpose appended to a gift in a will are not to be construed into a trust which would defeat the general purpose.