Devise of an Advowson to Trustees to present a certain Person to the next Avoidance. I GIVE and devise my advowson and right of patronage of and to the living of H. in the county of to F. P. of, &c. and W. L. of, &c. and their heirs, to the use of the said F. P. and W. L., their heirs and assigns, in trust that they or the survivor of them, or the heirs or assigns of such survivor, shall and do present I. T. of, &c. to the next turn or avoidance thereof, and subject thereto, upon trust to convey the same to and for such uses, intents and purposes, upon such trusts, and under and subject to such powers, provisos, limitations, declarations, and agreements, as in and by this will are limited, declared, and expressed, of and concerning my other hereditaments, and real estate, in the county of, &c. or such of them as are subsisting and capable of taking effect.. Words of a Will whereby a Testator charges his Debts, Legacies, &c. upon all his Estate. day of THIS is the last will and testament of me M. H., of, &c. made this in the year I charge all my real and personal estate, of what nature or kind soever, with the payment of all my debts, funeral expences, and legacies, as well such as I shall hereby give, as such other legacies and annuities as I may hereafter give by any codicil or codicils to this my will.* Clause to prevent an Annuitant under the Will from parting with his Annuity. AND my will further is, and I do hereby expressly declare and direct, that in case my said nephew A. B. shall alien, sell, assign, incumber, or transfer, or in any manner dispose of or anticipate the said annuity or yearly sum of 2001. or any part thereof, then and in such case, and from and immediately after such alienation, sale, assignment, or transfer, the said bequest so made thereof as aforesaid, and the use and estate so given to him therein shall cease and be void, to all intents and purposes as if, the same had not been mentioned in this my will, or as if the said C. K. were naturally dead. * By a will duly executed, charging land generally with legacies, a testator enables himself to lay any number of additional legacies on the land by a subsequent testamentary disposition unexecuted. See chap. 1. part 6. To entitle a legatee to recover his legacy out of the real estate, there seems to be no necessity for proving the will in the Spiritual Court. 3 Atk. 361. It is to be observed that words importing clear intention to charge the realty are necessary to make the land in the hands of a specific devisee subject to legacies; therefore, if a clause either at the beginning or end of a will runs thus, "First, I will and direct that all my debts, legacies, and funeral expences shall be fully paid," these words will not give the legatees place of the specific devisees, though perhaps by such words the residuary real estate might be charged with the legacies. And perhaps also this would be considered as sufficient to charge even specific devisees in their order, (for the general devisee and the heir come first into contribution) with the debts. See Kightley v. Kightley, 2 Vez. Jun. 328. But the Lord Chancellor doubted of the distinction in this respect, in Williams v. Chitty, 3 Vez Jun. Devise of Copyholds, and Leaseholds for Lives and * AND I give and bequeath all my customary or copyhold messuages, lands, and hereditaments, and also all my messuages, farms, lands, tenements, 545. The Master of the Rolls, however, maintained the distinction again in Shallcross v. Finden, 3 Vez, Jun. 739. And see 3 P. Wms. 91. Harris v. Ingledew, ib. 358. "After pay. In this last case the words at the beginning were ment of all my just debts, funeral expences," and it was clearly held that the debts were charged by these words. use of his will. *In the part of the 1st chapter of this treatise, the necessity for and the operation of a surrender of copyhold estate to the use of the of the neces will made or to be made, has been considered. To what has sity for the party's having the been there observed, it may here be added, that for the will to have legal estate in its legal effect, it is necessary that the party, when he makes the him at the time surrender to the use of his will, should have the legal estate, other- of his surrenwise the surrender to the use of the party's own will, can have no dering it to the effect, any more than if the surrender were made to a stranger. Thus, where a copyhold was surrendered to J. S. on the 10th October, 1793, and the surrenderee afterwards, and before he was admitted, surrendered the same to the use of his will; and on the 17th June, 1795, and not before, the surrender was presented and the testator admitted; it was held that the surrender to the use. of the will was inoperative, and that the admittance did not relate, for before the surrender to the testator was executed by the admis sion, the legal estate was wholly in the surrenderor, and the surrenderee could not enter without being a trespasser to the surrenderor, and the surrenderee could not have maintained ejectment unless he was admitted before the trial. And as to the question of relation, it was held that the admission could not relate so as to validate the surrender by J. S. to the use of his will, for though relation will in many cases help acts in law, it will not help the acts of the party, that is, it will not make void acts of parties good by the fiction of law. See the learned judgment pronounced by Lord Ellenborough, in the case of Doe on dem. Tofield v. Tofield, in the 10th vol of East's Reports. And for the doctrine of relation the reader is referred to the 8th part of chapter 2 of this treatise. The reader will observe, that in this case there was an original and hereditaments whatsoever, which I hold by virtue of or under any grant, lease, or demise, from the Crown, or any College in either of the Universities, or from any bishop, dean and chapter, or other person, body politic or corporate, ecclesiastical or civil, for any term of life or lives, or years determinable on deaths, or usually renewable at certain times and periods respectively, and also all my leasehold messuages, lands and tenements, which I hold for any term or number of years (in case any such there be) unto the said and, their heirs, execu tors, administrators, and assigns respectively, according to the nature and quality of the same respectively, for and during all my estate and interest therein, upon trust that my said trustees, and the survivor of them, his heirs, executors, and administrators, shall and do settle and assure the same, so and in such manner as that the clear residue of the rents, issues, and profits of the same copyhold and leasehold premises respectively, may be received, taken, and enjoyed by and for the use and benefit of such person or persons as for the time being shall by virtue of this my will, and the settlement to be made according to the directions hereinbefore contained, be entitled to any estate of freehold and inheritance, of and in my said manors, hereditaments, and premises in the said defect of estate and not of a surrender, so that this was not a case for Equity to supply a surrender, which it would have done if the testator had had the legal estate, and had only omitted the surrender to the use of his will, as the wife was the devisee. But in another view of the equity of the case, it should seem there was a good ground of relief; since the first surrender was for valuable consideration, and gave the surrenderee an equitable interest, and it has always been the rule of equity, that where party has the beneficial interest only in copyhold lands, he may devise them, and they will pass by his will as well as any other lands, without a surrender. See 2 Atk. 37, Tuffnel v. Page. 3 P. Wms. 360, King v. King. 1 Atk. 390, Macey v. Shurmer. 1 Vez. 121, Allen v. Poulton. 1 Bro. C. C. 481, Macnaniara v. Jones. counties of -and and until some persons entitled to an estate of inheritance shall, by good assurances in the law, become seised of the said manor, hereditaments, and premises in fee-simple, in possession; and immediately upon or after that event the trustees in the said settlement of the said copyhold and leasehold premises, shall be thereby directed and required to surrender, assign, and assure the said copyhold and leasehold lands, tenements, and premises, with their and every of their appurtenances, and all estates, terms, and interests of my said trustees, of, and in the same, unto such person or persons so seised of, or entitled to the inheritance of the said manors, messuages, lands, and hereditaments aforesaid, by such deeds, writings, instruments, surrenders and assurances, as by such person respectively, or by his counsel learned in the law, shall be reasonably advised or required: and also upon trust that my said trustees, and the survivor of them, his heirs, executors, or administrators, in the mean time and until such settlement shall be made, do and shall, by and out of the rents and profits of the said leasehold premises, pay the rents and perform the covenants reserved by the original and subsisting leases, and also by and out of my personal estate renew the leases of the same premises, and take new leases thereof respectively in their own names, when and as it shall be usual and requisite, and also from time to time make such proper surrenders of the leases subsisting, as shall be requisite and necessary or incident to such renewals, and also do and shall by and out of my said personal estate or the rents and profits aforesaid, pay and discharge the fines and fees of admissions to, and surrenders of, my said copyhold lands. |