1833. Doɛ dem. This will was properly executed and attested. In 1817, Henry Gwillim, the testator, died; Joseph, the lessor of the plaintiff, was his heir at law; his two other sons, Samuel and John, and his widow, survived him. The widow afterwards died. The defendant produced a conveyance, bearing date the 24th and 25th of August, 1819, from the said John Gwillim, the devisee, to Samuel Gwillim, the defendant, of all his estate and interest in the premises, in consideration of natural love and affection and 10s. In reply, the lessor of the plaintiff called witnesses, who proved that when they first remembered the premises, seventy years ago, the premises were all inclosed, and had the appearance of old inclosures, and that the testator and the party of whom he purchased had occupied the same during the whole of that time. The lessor of the plaintiff further proved the conviction of John Gwillim, in 1820, and judgment against him for felony; and that at the time the deed was executed by him to the defendant, he was lying in Gloucester gaol on a charge of horse-stealing; and the plaintiff further relied on the statute 17 Ed. 2. c. 16., which recites, "that it is used in the county of Gloucester, by custom, that after one year and one day the lands and tenements of felons shall revert and be restored to the next heir, to whom they ought to have descended if the felony had not been done." The learned judge put two questions to the jury: 1st. Whether the premises in question were old encroachments, made previously to the 20 Car. 2.? and the jury found that they were. 2dly. Whether the conveyance from John to Samuel Gwillim was bonâ fide or fraudulent? The jury found that it was fraudulent. Upon this the learned judge said that he was of opinion that John took took only an estate for life, and therefore that the word heir in the stat. 17 Ed. 2. c. 16. did not apply to the case; and he directed the plaintiff to be nonsuited, but reserved liberty to him to move to enter a verdict. R. V. Richards now shewed cause. John Gwillim took under the will of the testator an estate for life only; and if that be so, upon his death, that estate vested in Joseph the heir at law of the testator. If the devise to John had stood alone, it would clearly have given him an estate for life only, because there are in it no words of inheritance as there are in the devises to five other sons. It appears from that, the testator knew how to give an estate of inheritance, and as he has not used words sufficient for that purpose in the devise in question, he must be taken to have intended to give John a life estate only. Gall v. Esdaile (a) will be relied upon by the other side. There, the testator, after commencing with a recital of his intention to dispose of his worldly estate, bequeathed some pecuniary legacies, and then proceeded, "As to the rest of my estate, the two houses (describing them) I give to my wife for life, and after her decease I give one house (describing it) to my daughter Mary," and the Court of Common Pleas held that the daughter took a fee under the words "the rest of my estate." There those words occurred in the very same clause with the devise to the daughter, and the testator had no other real property. Here the word estate does not occur in the devise to John, nor is it incorporated in it by reference. Besides, even in that case the Master of the Rolls held that the daughter took (a) 8 Bing. 323. 1833. Doɛ dem. against GWILLIM. an 1833. Doɛ dem. an estate for life only (a). The general rule is, that the heir at law is not to be disinherited without express words or by necessary implication. Supposing that John took a fee, this is not a case within the custom mentioned in the stat. 16 Ed. 2. c. 16., because that applies only to cases of attainder and execution, and not to a case where the felon is still alive. The Solicitor-General and Busby contrà. It may be collected from the whole of the will, taken together, that the testator intended to give a fee to John, and construing the devise to him in conjunction with the first devise to the wife and children, the words used are sufficient to give him the fee. The introductory clause, by which the testator expresses an intention to devise all his worldly estate, shews that he intended to depart with his whole interest; and the subsequent words ought, therefore, if possible, so to be construed as to pass an estate in fee, and to prevent an intestacy as to any part of the property. The testator, after that introductory clause, gives to his wife the whole of his estates, goods and chattels, &c. If the will had stopped there, she would, by force of the word estates, have taken a fee: Rowe v. Bacon (b); but he afterwards cuts down the devise to her to an estate during widowhood, and then directs that the whole of his estates, and goods, and chattels shall go to his children, as he has appointed to them, in lots and money. If the will had stopped at the word "children," they would, by force of the word estates, have taken a fee as joint tenants. By the first devise the testator has, in the words "the whole of his (a) 1 Russ. & M. 540. (b) 4 M. & S. 362. estates," estates," marked out the quantity of interest he intended his children to have in their respective lots, meaning, by the subsequent clauses, to apportion his property, real and personal, among them. The words, "the whole of my estates," may be considered as incorporated, by reference, in all the subsequent clauses; and, if so, those words, construed with reference to the introductory clause, will pass a fee. The question is, at all events, whether the words of the subsequent devises of the specific lots, vary or diminish the effect of the word "estates" in the first devise. The devise of the lot to the second son is to him and his lawful heirs for ever; but then, as the testator adds, " if no lawful heirs, to his next brother and his lawful heirs for ever:" it follows that, by the word heirs, he meant, not heirs generally, in which the next brother would be included, but special heirs, or heirs of the body; and consequently the second son took an estate tail in the lot devised to him. The same observation applies to the devises to the four other sons. The effect, therefore, of the word estates, may be so varied by the devises to the first five sons, as to cut down a fee to an estate tail; but in the devise to John there are no such words, and consequently there is nothing there to vary the effect of the words, "the whole of my estates," in the first devise. Besides, in the devise to John, the dwelling-house and land is coupled with the goods and chattels; and as there can be no doubt he intended to pass the entire property in the goods to him, it may be fairly inferred that he meant also to give him an entire interest in the land. DENMAN C. J. It is very difficult to apply any former decision to a case of this sort. Other cases are valuable 1833. Doɛ dem. against GWILLIM. 1833. Dog dem. valuable only as furnishing a rule of construction. Gall v. Esdaile (a) is not in point. It is true that, in the early part of this will, the testator expresses an intention to devise all his worldly estate; whence it may be fairly inferred (it is said), that he intended to devise the fee; but still, in order to effectuate that intention, it was necessary that he should afterwards use in the devising clause words sufficient to pass a fee; and the question is, whether, in the devise to John, there are any such words. At first I thought the words "the whole of my estates" over-rode, and were to be considered as incorporated by reference in the other devising clauses of the will, so as to pass to the devisees a fee in their respective lots; but, on further consideration, I think they cannot be so considered, because, in the devises to the five sons (which precede the one to John), the testator gives them estates tail only; he cannot, therefore, by the use of the words "the whole of my estates," in the first devise, have supposed that he had already given those sons a fee. And if those words are not to be considered as incorporated in the devise to John, the words there used will pass a life estate only. Assuming even that the actual intention of the testator, as expressed in the early part of his will, was to give a fee, he has not in the devise in question used words sufficient to carry that intention into effect. John took only an estate for life. LITTLEDALE J. Gall v. Esdaile (a) cannot govern the construction of this will. The testator begins by expressing an intention to dispose of his worldly estate; and, first, he gives the whole of his estates and goods and (a) 8 Bing. 323. chattels |