an estate durante viduitate; and it was suggested that, even if it applied, the heir would have no title to maintain this action, and Willes, J., referred to Brown's Case (1).] Secondly, and this is the ground relied on in the judgment of the Court below, it is contended that the direction to the widow to pay 5l. a year to William Pickwell enlarges her estate to a fee. But this is not so, for the charge is not on her as devisee, but on her as executrix; it is in terms a direction to his " executrix," and the accident that his executrix is also his devisee will not suffice to support the inference: 2 Jarman on Wills, 3d ed., p. 249; Hawkins on Construction of Wills, p. 134. He also referred to Roe v. Blackett (2); Lloyd v. Jackson (3); Moone v. Heaseman (1). Manisty, Q.C. (F. M. White with him), for the defendants, was stopped.

COCKBURN, C.J. I am of opinion that the judgment of the Court below should be affirmed; but I cannot say that I come to that conclusion upon the same grounds as those on which the judgment below proceeded. I cannot bring my mind to be satisfied that in that part of the will which provides that the testator's executrix shall pay the sum of 51. yearly to his son, the words amount merely to a designatio persona. I quite agree with the proposition stated in 2 Jarman on Wills, 3d ed., p. 249, that if there is a devise which would operate only as a devise for life, but a pecuniary charge is attached to the devise, the fact that the devisee on whom the charge is imposed in his character of devisee is afterwards appointed executor, will not 108] make the payment a *payment by him as executor, and the devise will therefore enure to his benefit so as to enlarge the fee. But the case differs where the direction to pay is given not to the devisee as such, but to the devisee under the name of executor; there the charge seems rather imposed on him quâ executor, and not quâ devisee.

But, construing this will as a whole, I am of opinion that the true construction is, that it gives an estate in fee to Mary Pickwell. No doubt, in a will prior to 1838, if there are no ⚫ words to indicate the nature of the interest given, a devisee will

(1) 4 Rep. 21 a. (No. 1 of the Copyhold (*) 1 Cowp., 235. Cases). (3) Law Rep., 2 Q. B., 269.

(*) Willes, 138.

take only an estate for life; but, on the other hand, the rule is equally well established, that if you can gather from the rest of the will that the testator did not intend to give merely an estate for life, the gift will be enlarged to a fee. Now here the intention of the testator manifestly was that his wife should remain single. According to the plaintiff's construction the youngest son would, in that event, have taken the whole of the realty as customary heir, to the exclusion of the other children. But it is quite plain that in the disposition of his property, which the testator proposed to make in the event of his wife marrying again, he meant to distribute the property among all his children, share and share alike. This then was the distribution which he desired to take effect, and it cannot be doubted that this was also what he desired and expected his wife to do in the event of her remaining single, and so having no collateral or sinister influence brought to bear upon her in the distribution of the family estate. Nothing is more common than for a man to leave his property in the first instance absolutely to his wife, trusting to her to make such a disposition of it in after years, with reference to the state of things which may then have supervened, as he would have made if he survived her, securing his family at the same time against the possibility of her putting herself into a condition where she cannot be safely trusted to perform that duty. That is what the testator here intended. He meant to leave to his wife the entire disposition of the property, in such manner and under such conditions as she thought fit; but, in the event of her marrying again, he makes himself such a disposition as he trusted she would have made if she had remained single. That being his manifest intention, it would. be entirely defeated if the wife took only an estate for life, in which event his heir would, upon *her death without [109 marrying, get the whole. Therefore, although the devise to the wife is without words of limitation, yet on the whole will it is evidently intended that she shall take an estate in fee, subject only to be divested upon the event of her marrying again.

WILLES, J. I am of the same opinion.

BLACKBURN, J. I also am of opinion that the judgment should be affirmed. The case has been argued on several

grounds, but I rest my judgment on one only. Upon the others, if it were necessary, I should desire time to inquire further into the authorities. The will being prior to 1838, it is well established that, the devise being of the land only, without words of limitation, the devisee would primâ facie take for life only; but it is equally well established that, when a devise of lands is made in this form, and the testator proceeds to express an intention that the object of his bounty should pay a sum of money, his having imposed on the object of his bounty a charge which, if only a life estate were given, would be a loss, affords a sufficient indication of his intention that the devisee should take not for life, but in fee. And this is obviously just where the value of the life estate would be small in proportion to the amount of the charge. But it is also established that the Court will not take into consideration the proportion of value of the life estate and the charge; and whatever the ground of this may have been originally, there is one very satisfactory reason for it. In matters of conveyancing it is a great object to make the law such that men may know whether they have a good or a bad title; and if they had to inquire whether the charge imposed by the will upon the devisee through whom they claim was large or small in proportion to the value of the life estate, no one claiming under such a devisee could be certain of his title. Therefore, for the security of title, there is good reason for holding that this is not to be taken into account.

The argument, however, fails if the gift is simply a legacy; and if Mr. Field could have persuaded me that the gift of 5l. yearly to William Pickwell was a mere legacy, which he would get only out of the personal assets, and the payment of which was not charged personally on the widow, I should agree that this gift would not affect the devise. But I cannot construe 110] the will so. The testator *devises and bequeaths everything to his wife, and then makes her his executrix. He afterwards directs that his "executrix" shall pay this sum of money yearly to his son. I think the word "executrix," as here used, is merely a description of his wife, and that the yearly sum of 57. is a charge upon her personally, and not a legacy to be paid out of his personal estate. It follows that the estate given to her is enlarged to a fee.

MELLOR, J. I am of the same opinion, both on the ground stated by my Brother Blackburn, and relied upon in the court below; And also because I agree that, for the reasons assigned by the Lord Chief Justice, it was the manifest intention of the testator to pass the fee to his wife.

BRETT, J. I think the judgment should be affirmed on both grounds. The will discloses an intention on the part of the testator to benefit all his children, and one mode in which he seeks to protect their interests is by preventing his wife from marrying again. But if Mr. Field's argument is correct, this result would follow, that it would be more to the benefit of his children that she should marry than that she should not.

On the other ground also I think the estate is enlarged to a fee. The property being given without words of limitation, a charge is afterwards imposed on the executrix; but it seems to me that that charge is imposed on her in consequence of the devise to her of the copyhold lands, which we must take to have formed a part of the farm. That also shows that his wife was intended to take the fee.

GROVE, J. I agree. There is an inconsistency upon the one construction, and not upon the other. The testator has provided for all his children in the event of his wife's marrying, but not in the event of her dying unmarried. If he meant that, in that event, the heir should take all, there would be an inconsistency in his intention. But it is consistent that he should leave his wife to provide for that event; and this is more probable than that he should have had an inconsistent intention.

Attorneys for plaintiff: Swann & Co.

Judgment affirmed.

Attorneys for defendants: Borrett, White & Borrett.

Breach of Promise of Marriage - Breach of Contract by refusal to perform, the Timo for Performance not having arrived.

The defendant promised to marry the plaintiff so soon as his (defendant's) father should die. During the father's lifetime the defendant refused absolutely to marry the plaintiff. The plaintiff sued for breach of the promise, the defendant's father being still alive.

Held, reversing the judgment of the Court below, that the principle of Hochster v. De la Tour (2 E. & B., 678; 22 L. J. (Q.B.), 455) was applicable to the case of such a promise to marry, and that a breach of contract had been committed on which the plaintiff could sue.

ERROR on a judgment of the Court of Exchequer (Kelly, C.B., and Channell, B.; Martin, B., dissenting), arresting the judgment after a verdict for the plaintiff. The facts and pleadings in the case are stated in the judgment of the Lord Chief Justice, and more fully in the report of the case below. (1) June 20, 21, 1871. The case was argued by Hill, Q.C. (Dodd with him), for the plaintiff. Powell, Q.C. (Streeten with him), for the defendant.

The same arguments were used and cases cited as in the court below.

Cur. adv. vult. (2)

Feb. 8, 1872. The following judgments were delivered: —

COCKBURN, C.J. (3). This case comes before us on error, brought on a judgment of the Court of Exchequer arresting the judgment in the action on a verdict given for the plaintiff.

The action was for breach of promise of marriage. The promise, as proved, was to marry the plaintiff on the death of the defendant's father. The father still living, the defendant (1) Law Rep., 5 Ex., 322. Smith, J., had ceased to be a member of the Court.

(2) The case was heard before Cockburn, C.J., and Byles, Montague Smith, Keating, and Lush, JJ.; but before the judgment was delivered Montague