some particular expressions in the will to take it out of the general rule, we must decide against the appellant. I do not see anything in the context of this will to assist his contention, and therefore I am of opinion that the decision of Vice-Chancellor HALL

was correct.

COTTON, L. J.: —

I am of opinion that upon the point now argued the decision of the VICE-CHANCELLOR was correct; and in consequence of the course the argument has taken, I think it right to [* 878] say something as to the general rules that should govern us in deciding on the construction of wills, and as regards the rule applicable to gifts which it is attempted to raise by implication.

As regards our duty when wills come before us for construction, it is obvious to say that it is in each case to consider the words of the will. I say that, for the purpose of calling attention to the argument that in the absence of any rule of law laid down or established by cases, we are at liberty to construe wills as ordinary intelligent persons would do. There is a fallacy in this. We are bound to have regard to any rules of construction which have been established by the Courts, and subject to that we are bound to construe the will as trained legal minds would do. Even very intelligent persons whose minds are not so trained are accustomed to jump at a conclusion as to what a person means by considering what they, under similar circumstances, think they would have done. That is conjecture only, and conjecture on an imperfect knowledge of the circumstances of the case, because the facts known to the testator may not all be before them, and the testator's mind, as regards the attention to be paid to the claims of the different parties dependent upon him, may not have been constituted as their minds are constituted, so that it cannot be concluded that he would have acted in the same way as they. We therefore must construe the will as we should construe any other document, subject to this, that in wills, if the intention is shown, it is not necessary that the technical words which are necessary in some instruments should be used for the purpose of giving effect to it.

Let us see, before we come to this will, whether or no there is any general rule that will help us in interpreting it. As regards the raising gifts for life by implication arising from a gift to some

VOL. XXV. - 43

No. 24. Ralph v. Carrick, 11 Ch. D. 878, 879.

person after the death of the person to whom it is sought to give a life estate by implication, we have two rules. As to real estate, if there is a gift to a testator's heir-at-law after the death of A., that does give by implication a life estate to A. If there is a gift of the testator's real estate to a stranger after the death of A., that does not raise the implication.

Then, for the purpose of seeing whether the principle [* 879] of one of those rules or of the other applies to the present case, we must consider what is the principle of the two rules. As regards an heir-at-law, if the real estate is given to him alone after the death of A. B., there is a gift to him at that time of what, in the absence of any gift, he would take immediately after the death of the testator. To make sense of this you must take it as expressing an intention to exclude the heir-atlaw till that time arrives. Now an heir-at-law can only be excluded by giving the property to somebody else, and therefore, when there is a gift to the heir-at-law alone of real estate after the death of A., a gift of a life estate to A. is implied, because in no other way can the heir-at-law be excluded. But if the gift of the estate after the death of A. is to a stranger, that reasoning does not apply, for the stranger takes simply and entirely by the bounty of the testator and in the absence of any gift, neither after the death of the named person nor at any other time, will he take anything, and it is not necessary to give anything to A. in order to postpone the gift to the stranger, for there is no difficulty in giving an estate to the stranger on the death of A., leaving it in the mean time to go to the heir-at-law.

Is there any rule established by the authorities as applicable to a gift to the heir-at-law and another person jointly after the death of A. I am of opinion that none of the cases establish any rule of construction applicable to such a case. Although cases have been cited in which, in a gift to an heir-at-law and others after the death of A., a life estate to A. has been implied, none of the Judges have laid down that there is a general rule of construction which, unaided by anything else in the will, will raise the implication from a devise in those terms. In each case the decision has been rested on the particular expressions of the will, and this negatives the existence of any such general rule of construction as has been contended for. I must of course except the case before ViceChancellor STUART, in which he does lay down a general rule

Nos. 23, 24.-Fawlkner v. Fawlkner; Ralph v. Carrick. Notes.

applicable to these cases, but in my opinion he went beyond the authorities on which he purported to rely, and laid down a rule which cannot be supported.

That being so, does this case come within the principle of the rule applicable to a gift to the heir-at-law after the death of A., or within the principle of the rule applicable to a gift to a

stranger after the death of A.? In my opinion it comes [* 880] within the latter, because, although the heir-at-law is one

of the persons to whom the gift is made, it is not necessary to give to anybody else in order to postpone the interest he is to take under the will, as he does not under the gift take that which, independently of gift, would come to him. Independently of gift he takes the whole real estate, but under that gift he takes only a share in it. So that, both as regards the interest given to the stranger and as regards the modification of the interest which the heir-at-law takes, it cannot be said that the gift after the death of A. is inoperative, unless you treat it as a postponement of the gift and give a life interest to A.

There being, then, no such canon or rule of construction as the appellant contends for, he must fail unless there be on the face of the will an expressed intention by the testator that the widow shall have a life estate. I can see nothing in this will that can be held to show such an intention, and I should say that there was rather an indication of an intention to the contrary, because the testator refers to the fact that the widow was to have £700 a year, and directs it to be paid out of the income of his estate, and if he intended to give her a life estate it is extraordinary that he should not go on to direct the surplus to be paid to her. Possibly the necessity of providing for his wife's annuity may have been the ground for postponing the division of his estate. That is conjecture, but to give a life interest to his widow would be only a conjecture, and we are not entitled to conjecture what the testator meant to do. We can only look to what on the face of the will he has said is to be done. The order of the VICE-CHANCELLOR on this point must, therefore, be affirmed.

ENGLISH NOTES.

In In re Springfield, Chamberlain v. Springfield, 1894, 3 Ch. 603, 64 L. J. Ch. 201, the testator, after certain legacies, including gifts to his wife and his son T., and conditional gifts to his two daughters,

B. and E., gave the residue to trustees, directing them, after the decease of his wife, to sell and to divide the proceeds unto and equally between his son T. and his said two daughters, B. and E., on their attaining the age of twenty-one years, or on the daughters marrying, with cross-remainders and an ultimate gift over to a third daughter, Mrs. C. Under this will, KEKEWICH, J., held that the widow did not take a life estate by implication. He considered that although the case in some respect differed from Ralph v. Carrick, the reasoning in that case, particularly that of Lord Justice COTTON, applied to take the case out of the rule in Faulkner v. Faulkner.

AMERICAN NOTES.

The first part of the rule above stated is supported by the following cases: Masterson v. Townshend, 123 New York, 458; Anders v. Gerhard, 140 Pennsylvania State, 153; McCoury v. Leek, 14 New Jersey Equity, 70, 73; Kelly v. Stinson, 8 Blackford (Ind.), 387; Nicholson v. Drennan, 35 South Carolina, 333. As to the second part of the rule stated: When the devise is to the testator's heirs after the death of a person named, there is a manifest intention to make an entire disposition of the property, and therefore the person at whose death the estate to his heirs is to take effect, is held to take a life estate. But where the devise is not to the testator's heirs, but to strangers at the death of a person named, the heirs take the estate during the life of the person named, as intestate property. Page on Wills, s. 468; 1 Underhill on Wills, s. 466; 2 Jarman on Wills, * 532.

An implication may be rebutted by a contrary implication equally strong. "Thus, if a testator should devise his estate to his wife during her widowhood only, and to his heir-at-law after the death of his wife, the limitation in the first devise could not be reasonably accounted for, upon the supposition that the testator intended his wife should enjoy the estate after her second marriage, and consequently it would rebut the presumption arising from the last devise, that he intended to give her an estate for life absolutely. In such case, upon the second marriage, the estate would go to the heir-at-law " Rathbone v. Dyckman, 3 Paige (N. Y.), 9, 27, per WALWORTH, Ch.

No. 25.-BROADHURST v. MORRIS.

(1831.)

RULE.

THE rule in Wild's Case (see 10 R. C. 773) that, under a devise to A. and his children or issue (A. having no issue at the time of the devise), A. takes an estate tail, is not de

feated by a gift over in default of such issue at the decease of A.

Broadhurst v. Morris.

2 Barn. & Adol. 1-12 (36 R. R. 439).

Devise to A. and Children. Gift over.

Rule in Wild's Case applies. - Estate Tail.

Testator devised all his share of his two estates in W. to his daugh- [1] ter E. B. for life, and at her decease to J. B., her husband, during his life; and at the decease of his said son-in-law J. B. he directed that the whole legacy to him should go to his grandson W. B., and to his children lawfully begotten, for ever; but in default of such issue at his decease to the testator's grandson A. B., his heirs and assigns for ever. Held, that W. B. took an estate tail in the shares of the estates in W.

Sir JOHN LEACH, M. R. directed the following case to be stated for the opinion of the Judges of this Court:

Ralph Bridoak being seised in his demesne as of fee of the lands and hereditaments, and undivided shares thereof, hereafter in his will mentioned, on the 29th of November, 1796, made and published his said last will in writing, duly executed and attested, and thereby, amongst other things, devised as follows: "My will and mind is, that my dear wife, Rebecca Bridoak, enjoy and take to herself, for her own use during her life, all my personal estate of what nature or kind soever; and at her decease to my grandson Alexander Bridoak, natural son of my daughter Rebecca * Bridoak, him and his heirs for ever. And I do further give [* 2] and devise to my said wife all my real estate whatsoever and wheresoever for and during the term of her natural life, and from and after her decease I give and devise as follows: that is to say, I give to Alexander Bridoak, natural son of my daughter Rebecca Bridoak, all that my messuage or dwelling-house, with the lands and appurtenances thereunto belonging, situate and being in Bedford in the county of Lancaster; together with the half of my seat or pew in the parish church of Leigh, to him, his heirs and assigns for ever. I likewise give and devise to my said grandson Alexander Bridoak, my messuage, dwelling-house, or cottage, with the garden and croft thereunto belonging, situate in Roby in the county of Lancaster, together with my seat or pew in the parish church of Hayton, to him, his heirs and assigns for ever. I give and devise to my daughter Ellen Broadhurst all my share of the