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Decisions of the Superior Courts of New South Wales, 1788-1899

Doe dem. Howell v. Kennedy (1840) NSW Sel Cas (Dowling) 979; [1840] NSWSupC 13

ejectment, land law, title, succession, will, construction of

Supreme Court of New South Wales

Dowling C.J., Willis and Stephen JJ, 6 April 1840

Source: Sydney Herald, 8 April 1840[1]

DOE DEM HOWELL v. KENNEDY. - This was an ejectment, for forty acres of land, situate on the Nepean River. Plea - not guilty.

            At the trial before Mr. Justice Willis and a Common Jury, during the late term, it appeared that the lessor of the property derived title in right of his wife as devisee in fee under the will of Archibald Kennedy, her father, third son of Daniel Kennedy, the elder.  The defendant claimed title as heir at law of Daniel Kennedy, on the ground that Archibald Kennedy took only a life estate under the will of his father, and had no power to devise in fee to his daughter, the wife of the lessor of the plaintiff, and the question was whether Archibald Kennedy took an estate in fee, or only a life estate in the premises under the will of the father.  On the 29th January, 1825, Daniel Kennedy, the testator, executed a will (prepared by a schoolmaster), duly attested to pass real estate.  He was seized in fee of one hundred and sixty acres of land, and was possessed of cattle, horses, and other personalty.  He had three sons, Duncan, Daniel, and Archibald, the latter being the youngest.  The introductory part of the will was in these terms: "My temporal estate I bequeathe and dispose of in the following manner:-- "Imprimis."  "To my wife Anne, should she survive me, I give and bequeath forty acres of land, being one fourth part of the farm on which I now reside, together with the use of the house, barn, and premises, goods, and chattels, and all other appurtenances belonging thereto until her decease, when the said forty acres of land, houses and premises, revert to my younger son Archibald, with the other forty acres adjoining the said farm, which I also give and bequeath to him at my decease.  To my sons Duncan and Daniel, I bequeath to each forty acres of the said farm."  To his daughters, Elizabeth, Mary, and Jane he gave certain cattle and other personal property.  At the trial, the learned Judge, if pressed for his opinion, would have directed the Jury to find a verdict for the defendant on the ground that Archibald Kennedy took only a life estate in the land under his father's will but advised the Jury to find a verdict for the lessor of the plaintiff, with 1s. damages, subject to the opinion of the Court, upon the legal construction of the will.  The Jury at their request were allowed to take the wills both of Daniel Kennedy, the father, and of Archibald Kennedy, the son, into the Jury room and on their return found a general verdict for the lessor of the property.  Damages - 1s.  A motion was then made to have this verdict set aside, and a new trial granted.  The case was argued by Mr. Broadhurst, and Mr. Darval, for the lessor of the plaintiff, and Mr. Foster, and Mr. Donnelly, for the defendant, and the Court took time to advise on the case, and now proceeded to deliver judgment.

            The Chief Justice said, I am of opinion that Archibald Kennedy took only a life estate under the will of his father.  The general rules applicable to the construction of wills are now too well settled to be questioned.  In order to deal fairly with this case, and give as much effect as possible to the argument for the lessor of the plaintiff, it may be convenient to state that we have borne in mind some of the leading cases on the question of intention.  In 1. Sir W. Blackstone, 377, it is said, that wills shall be so construed as far as consistently may be so as to preserve estates in the intended channel of descent.  The intention of the testator is to be the rule of construction, if the words will bear it out. - (Brownsword v. Edwards, 2 Vez. 218).  Loose, general, and doubtful words may be rejected as surplusages - where they oppose a plain precedent devise, or the broad and manifest intent of the testator.  (Hob. 65, 6 Mod. 112).  Effect ought to be given if possible to the whole will, and the intention should be collected from all the parts of it to avoid repugnancy.  (Leon. 229, 2 Bulst. 178  Gittens. v. Steele).  Such indeed is the respect due to intention, that a construction may be made to support it when plain upon the whole will, even against strict gramatical rules.  (11 Vez. 148)  General words will be construed to render the whole will consistent, but every word ought to have effect if possible, so as to consist with the general intention which if manifest must control the construction.  (Blandford v. Blandford, Roll Rep. 319 Constantine v. Constantince 6 Vez. Jun. 10.)  The safest course is to abide by the words, unless upon the whole will there is something amounting almost to demonstration to shew that the plain meaning of the words is not the meaning of the testator (Cooke v. De Vande, 9 Vez. 205; Nammock v. Norton 7 Vez. junr 391).  General words are not to be restrained, unless the Court sees abundant reason to conclude that the tesator meant to use them in a restrained sense.  (Ld. Mansfield, in Goodith v. Paul, 2 Burr, 1089.)  Wherever words have an obvious construction, they are not to be rejected upon a suspicion that the testator did not know what he meant by them.  (Miller v . Slater 8 Vez. 295.) If words admit of a twofold construction, the rule is to adopt that which may tend to make good the instrument, and to effectuate rather than frustrate the intention; and if words are rejected or supplied by construction, it must always be in support of the intent.  The intention of a testator is not to fail because it cannot take effect to the full extent, but is to work as far as it can.  (Atkinson v. Hutchinson, 3 P. Wms. 259.)  It has been said that the intention of the testator is the polar star in arriving at a satisfactory construction of the will, and that the court is bound to effectuate that intention where the words will bear any legal construction in support of that object; nay, I apprehend, that even if the words were insufficient to effectuate the manifest intention, it would be the duty of the court to strain hard to carry the design of the testator into operation.  In the consideration of this case, the court lays out of view the supposed principle that the law peculiarly favors an heir-at-law.  The common expression in the books that an heir shall not be disinherited except by express words or necessary implication, is incorrect, the proper terms of the rule are that the intent of the testator ought to appear plainly in the will itself, otherwise the heir shall not be disinherited.  (Moorely v. Heaseman, Willas 141.)  And where there is no ambiguity, it has long ago been said by great authority, that a devisee is as much favored as an heir-at-law.  (6 Mod. 133, 2 Vein. 310).  I have thus recapitulated some of the most leading principles laid down in the books, many of old authority, in order to shew that the sages of the law in olden time have not been less liberal in the rules of construction than judges in modern times, and that there is no disposition on the part of this court to defeat the obvious intention of the testator, if we can by legal construction give effect to it.  Assuming that the intention of the testator was to devise the whole of his land, in fee, in portions to his three sons respectively, the question is do the words of the will bear out that intention?  It is observable that almost the whole of the language used is applicable to a will of personalty and not of realty.  The words "give, bequeath, and dispose of," are more appropriate to a disposition of personal property than of real estate, which, when that is intended to pass, is preceded by the word "devise," a word which ex viterminii imports a gift of land, although it may be generally used for the gift of legacies and other personalities.  Conceding that the words "my temporal estate" would be large enough to carry the fee, still it is a settled rule that they will not supply any defect in the devising parts of the testament, if they are not sufficient for that purpose.  (Roberts on Wills, 455.)  An unprofessional person, ignorant of the rules of law, would probably come to the conclusion at once, that the testator meant to give an estate in fee to his son Archibald, in the two forty-acre parcels of land mentioned in the will; but it is the duty of courts of justice to adhere strictly to the rules of law, however hard such adherence may be in the particular instance.  However we may be disposed to decide this case on its own circumstances, still, in the language of Sire James Mansfield, in Doe v. Child, 1 N. Rep. 346. "Whenever a case is decided on circumstances others who are to judge afterwards may receive a different impression from the same case whereas the adherence to a general rule is more calculated to avoid uncertainty."  The same eminent judge also observes that decisions founded on the force of particular circumstances indicating particular intentions are more likely to lead to litigation than those which are founded upon adherence to the general rule, that unless there be express words of limitation, or something which renders it necessary to give an estate of inheritance, the heir-at-law shall not be disinherited."  It was admitted in argument, that under this will the sons Duncan and Daniel clearly took only life estates for want of words of limitation.  This concession tends greatly to weaken the argument in favor of the younger son Archibald, for if the real intention was to devise the lands given to each of the sons in fee we are driven to see whether there are any words applicable to Archibald to distinguish his from his brothers' case.  I agree that the intention of a testator is not to fail because it cannot take effect to the full extent, and that the court is bound to carry it out as far as it can; but the question is, whether the devise to Archibald is distinguishable from the devises to Duncan and Daniel.  Being seized in fee of the land in question, the testator gives forty acres to his wife, for life, and at her decease, and on that event, he says "when said forty acres of land, house, and premises revert to my younger son Archibald, with the other forty acres adjoining the said farm which I also give and bequeath to him at my decease."  Great force was endeavored to be ascribed to the word 'revert' as implying a devise of thereversion.  Reading that word with the context, it appears to me to imply that the testator had made some precedent devise to Archibald by some other testamentary instrument, and that he thus recognised it by allusion thereto in the present instrument, and did not intend by this will to give him the reversion.  Without some such construction of the will, the word 'revert' cannot have the interpretation put upon it in argument.  But even if we could read it as if the word 'reversion' had been used, it would be insensible, having reference to he interest which the testator had in the land.  He had not a mere reversionary interest, he had the absolute fee, and that distinguishes this from the case of Bailis v. Gale 2 Vez. Sen P. 48, cited for the lessor of the plaintiff.  In that  case the Lord Chancellor said, "The interest the testator had in the land, was the reversion in fee he had in himself expectant on the leases he had granted, whether for life or years.  Reversion is a right of having the estate back again (which creates an interest) when the particular estate determines and, according to Lutwich, devise of a reversion passes a fee - there was a devise of the whole remainder.  Reversion is descriptive of that right of reverter by way of continuance, that was in himself - consequently there is no ground to split or divide it; for giving the reversion gives the whole reversion, useless words are added, limiting or restraining the interest."  Reversion must have a technical meaning as importing a specific interest, and no authority can be found to interpret revert as meaning a devise of the reversion.  This case is also distinguishable from Loveacres v. Blight (Cowper 352), for there the words were "all my lands and tenements freely to be enjoyed and possessed alike," words upon which the court laid great stress, inasmuch as the testator had charged the estate with the payment of annuities so that he could not mean by the word "freely," to give it free from incumbrances.  "The free enjoyment therefore," (as Lord Mansfield says), "must mean free from all limitations; that is the absolute property of the estate."  Whatever may be the desire of the Court to construe this will according to popular interpretation, we are all constrained to abide by that rule of English law by which real property has been governed for ages.  In the language of Lord Ellenborough.   (Goodright v. Barron II East. 223) "we are tied down by the positive rule of law, that in the devise of real property, where there are no words of limitation, and no necessary implication from the words of the devise to give a larger estate, the devisee can only take an estate for life."  I can find no authority trenching upon this doctrine.  Is there any necessary implication from the words of the devise to give a larger interest than an estate for life?  The forty acres devised to the wife for life, are only said to revert to Archibald, without even any terms of gift or devise, until mention is made of the other forty acres adjoining, "which he also gives and bequeaths to him at his decease."  Both these devises are without any words of limitation to conclude the heir-at-law, and ironbound (if I may so express myself.) by the rule of law, though contrary to what I think was the probable intention of the testator, we have no alternative but to hold that Archibald Kennedy took only a life estate in the premises.  In the case of Doe dem Wright v. Child, Sir J. Mansfield, one of the soundest lawyers that ever sat in Westminster-hall, struggled hard to get over the rule of law, and was constrained to yield to the opinion of seven judges on the question decided in that case, though he still retained a very strong impression of his own upon the case.  There the testator devised to his grand-sons, (who were all equally objects of his bounty) different portions of his estates.  To his grand-son James he gave all his lands, freehold, copyhold, and leasehold in Essex: to the same grand-son he gave all his estate, freehold and copyhold, in Huntingdonshire; to his grand-son John he gave all his estates, lands, &c. in St. Giles's, London, and to James Cowper, his heir-at-law, he gave the house he lived in, with all the lands belonging to the same, and though the intention was evidently to give to his grandson James a fee in the lands in Essex, as he had done in the lands in Huntingdonshire, yet it was holden that for want of words of limitation to his heirs, he took only a life estate, in remainder in the devisor's estate in Essex.  Conceding that the introductory words "my temporal estate I bequeath and dispose of in the following manner," manifest a clear intent not to die intestate, as to any of his property still, unless the language of the devise supports that intent we are fettered by the rule of law.  In the language of Chief Justice De Grey in Frogmorton, v. Wright, (cited in Doe dem Wright v. Child,) "though the probable intent of the testator was an absolute disposition, yet it is not a certain intent, nor is it a legal disposition.  There is no case where the introduction of the will only has been held to give a fee, where the words of the devise import an estate for life; and though sometimes the devise of an estate may carry a fee simple yet a devise of a house will not."  True it is that the testator here in the introduction bequeaths and disposes of his temporal estate, which word may import a fee, yet in the devising part of the will; he gives "forty acres of land for life to his wife, and at her decease the said forty acres of land revert to Archbald with the other forty acres adjoining the said farm, which he also gives and bequeaths to him at his decease."  Now admitting that if the word estate had been used in the devising part of the will, unless as merely descriptive of the land, the authorities are that it would import a devise of the fee, but here the testator speaks of so many acres of land and of the said "farm" and uses no words of limitation whatever, from which we can by necessary implication, hold that the words of the devise gave to Archibald more than an estate for life in the premises sought to be recovered in this ejectment.  Although we should be satisfied that the testator intended to devise the fee, yet, unless he demonstrates his intention by apt words, and perfects his will in such manner as the law requires, how can the Court do that which he has not done for himself?  We are, in effect, called upon to make a will for the testator, by supplying those requisites which are essential to the validity of the instrument.  Suppose this will had not three witnesses, could we supply the defect, however obvious the intent to devise a freehold of inheritance might be?  To all intents and purpose, a will is a deed of conveyance; and suppose the grantor omitted to sign the seal, and deliver, that which he intended to execute, could the Court help the party supposed to be benefited?  The Jury, in the present case, have exceeded their province, by taking into their own hands the construction of the will; and probably thinking they were at liberty so to do, put that interpretation upon it which unprofessional persons would do.  The construction of the will was matter of law, and they were told so by the learned Judge.  Their disregard of that instruction has deprived the defendant of that advantage to which he would have been entitled.  The industry of my learned brother, Stephen, prompted by that anxiety which we all feel, to effectuate the intention of the testator, if possible has found out a case supposed to be in the plaintiff's favour.  From the modern date of it we have not access to the authentic report, but from the abstract of it in a periodical it would seem to be applicable.  The case alluded to is Knock v. Lawton, (4 Bing, new cases.)  As I understand it, it was a devise by the testator to his eldest son and heir-at-law, by which he gave all his estate whereon he resided, except a factory and two cottages, portions thereof which he gave to his other children, two of whom were daughters, respectively, - without words of limitation, and the Court held that estates in fee, in the portions of the estate thus excepted, passed to the other children.  We have not access to the reasons for the decision; but I think it is probable that as the testator had devised the estate, with the exceptions, to his eldest son and heir-at-law, in fee, the express limitation to the other children, of the portions of his estate, in the devising part of the will to the eldest son, rode over the other devises to the other children, thus was sufficient to give them the fee.  If that was the ground of decision, the case is perfectly consistent with the current of authorities, and does not impugn the settled principle, that a devise of land, without words of limitation, does not pass the fee.  I think it scarcely possible that Sir Nicholas Tindal, and the other Judges, would upset a rule of construction which has fettered the Court for ages.  Without adverting more at large to the numerous cases applicable to question of this kind, and admitting that, after all, every case must depend upon its own circumstances, I think that, for want of words of limitation, Archibald Kennedy took only a life estate in the land devised to him by his father.  Had it been reserved to us to enter a verdict for the defendant, we should have so directed; but inasmuch as the Jury have found a general verdict, we have no alternative but to order a new trial.

            Mr. Justice Willis fully agreed with the Chief Justice, and cited a number of cases from Equity reports in support of his decision.

            Mr. Justice Stephen - With every disposition in this case to uphold the verdict, I am of opinion that, except by a violation of known and long established rules, it cannot be sustained.  It is unnecessary to justify that opinion by entering into the law applicable to the construction of wills, for that task has at the expense of much research and labour, been accomplished by the Chief Justice.  A few observations may be useful, however, in a view to the removal of popular misconception, on this subject.  A will is after all, nothing more than a species of conveyance.  The question therefore, as between the heir and a devisee, in any given instance, is, substantially, not what the testator may be supposed to have intended to do, but what he really did.  If the will - to which alone we must refer for his intention - amounts to a devise of the disputed property in fee, the heir is excluded.  If it amounts only to a devise of the property for life, the heir will have thereafter a legal claim to it.  Whether the will operates in the one way or the other, is therefore the only question to be determined.  Now, the operation, or in other words, the effect, of every conveyance, must obviously depend on principles and rules of law only.  This is matter, not of evidence, but of construction; and to construe a will, or any such instrument operating as a conveyance, those principles and rules alone must be consulted.  Were any other course to be pursued an occasional instance of hardship might be avoided; but the confusion that would result from varying or arbitrary decisions, founded on no rule whatever but prompted by conjecture or unsettled views of equity between parties would soon render every conveyance useless, and every men's title insecure.  It is to avoid such consequences, and to prevent litigation, as far as may be, in these cases, by enabling men to understand their rights by reference to precedent, that the various rules of construction cited by the Chief Justice have been established.  And the rule for the construction of wills is, not that they shall operate according to the testator's intention alone, if such intention be clearly not effectuated but that, where there are words which can be construed in two or more ways, that construction shall then be adopted which will effectuate the intention.   In the present case, I am constrained to express my concurrence in the opinion that there is no room for any construction but one.  The Jury, in adopting a different construction, acted from the laudable desire to carry out what they thought the testator meant to do.  But, as I think I have now sufficiently explained, they have thereby unintentionally fallen into an error which the law cannot sanction.

            

Source: Dowling, Select Cases, Vol. 6, State Records of New South Wales, 2/3464, p. 20

[p.20]

[1840.-

Monday

April 6th]

                                                               First Term 1840

                                                              In Banco 4th April

                                                              Cor.  Dowling CJ.

                                                                        Willis J.

                                                                      Stephen J.

Doe on the demise of Howell v Kennedy

            This was an Ejectment for 40 acres of land situate on the Nepean River.  Plea Not Guilty.

            At the trial before Willis J. and a common Jury during the late term, it appeared that the lessor of the Plf. derived title of right of his wife, as devise in fee under the will of Archibald Kennedy her father, third son of David Kennedy the elder.  The deft claimed title as heir at law of David Kennedy on the ground that Archibald Kennedy took only a life estate under the will of his father and had no power to devise in fee to his daughter the wife [p.21] the lessor of the Plf; & the question was whetherArchibald Kennedy took an estate in fee, or only a life estate in the premises, under the will of the father.  On the 29th January 1825 David Kennedy the testator executed a will (prepared by a schoolmaster) duly attested to pass real estate.  He was seised in fee of 160 acres of land, and was possessed of cattle, horses & other personalty.  He had three sons, DuncanDaniel, & Archibald, the latter being the youngest.  The introductory part of the will was in these terms:- "My Temporal estate I bequeath anddispose of in the following manner."  Imprimis. - "To may wife Ann, should she survive, I give & bequeath 40 acres of land, being one fourth part of the four on which I now reside together with the use of the house, barn & premises, goods & chattels and [p.22] all other appurtenants belonging thereto, until her decease, when said 40 acres of land house & premises, reverting to my younger son Archibald with the other 40 acres adjoining the said farm which I also give & bequeath him at my decease.  To my sons Duncan & David I bequeath to each 40 acres of said farm."  To his daughtersElizabethMary & June he gave certain cattle & other personalty.  At the trial, the learned Judge, if pressed for his opinion would have directed the Jury to find a verdict for the Deft, on the ground that Archibald Kennedy took only a life estate in the land under his father's will, but advised the Jury to find a verdict for the lessor of the Plf with one shilling damages subject to the opinion of the Court upon the legal construction [p.23] of the will.  The Jury at their request were allowed to take the wills both of Daniel Kennedy the father, & of Archibald Kennedy the son, into the Jury room, & on their return found a general verdict for the lessor of the Plf damages one shilling.  A motion was made to have this verdict set aside, and a new trial granted.  The case was argued by Mr Broadhurst & Mr Darval for the lessor of the Plf & MrFoster & Mr Donnelly for the Deft & the Court took time to advise on the case.

            Sir James Dowling CJ. -

            I am of opinion that Archibald Kennedy took only a life estate under the will of his father.

            The general rules applicable to the construction of wills are now too well settled to be questioned.  In order to deal fairly with this case, & give as much effect as possible to the argument for the lessor of the Plf, it may be convenient to state that we have borne in mind some of the leading cases on the question of intention-

            [p.24] In 1. Sir W. Blackstone, 377, it is said, that wills shall be so construed as far as consistently may be, so as to preserve estates in the intended channel of descent.  The intention of the testator is to be the rule of construction, if the words will bear it outBrownsword v Edwards, 2 Vez 248.  Loose, general, and doubtful words mat be rejected as surplusage - where they oppose a plain precedent devise , or the broad manifest intent of the testator.  (Hob. 65, 6 Mod. 112)  Effect ought to be given, if possible, to the whole will, and the intention should be collected from all the parts of it, to avoid repugnancy Leon. 229 2 Bulst. 178.  Gittens v Steele.  Such indeed is the respect due to intention, that a construction may be made to support it when plain upon the whole will, even against strict grammatical rules 11 Vez. 148.  general words will be construed to render the whole will consistent, but every word [p.25] ought to have effect if possible, so as to consist with the general intention which if manifest must control the Construction.  Blandford v Blandford, Roll Rep. 319. Constantine v Constantine 6 Vez. Jun. 10.  The safest course is to abide by the words unless upon the whole will there is something amounting almost to demonstration to shew that the plain meaning of the words is not the meaning of the testator.  Cooke vDe Vandes, 9 Vez. 205; Nammock v Norton, 7 Vez. junr. 391.  General words are not to be restrained, unless the Court sees abundant reason to conclude that the testator meant to use them in a restrained sense.  Re Ld Mansfield in Goodith v Paul, 2 Burr, 1089.  Wherever words have an obvious construction, they are not to be rejected upon a suspicion that the testator did not know what he meant by them.Miller v Slater 8 Vez. 295.  If words admit of a twofold construction, the rule is to adopt that which may tend to make good [p.26] the instrument, and to effectuate rather than frustrate the intention; and if words are rejected or supplied by construction, it must always be in support of the intent.  The intention of a testator is not to fail because it cannot take effect to the full extent, but is to work as far as it can.  Atkinson v Hutchinson, 3 P. Wms. 259.  It has been said that the intention of the testator is the polar star in arriving at a satisfactory construction of the will, and that the court is bound to effectuate that intention where the words will bear any legal construction in support of that object; nay, I apprehend, that even if the words were insufficient to effectuate the manifest intention, it would be the duty of the court to strain hard to carry the design of the testator into operation.  In the consideration of [p.27] this case, the court lays out of view the supposed principle that the law peculiarly favors [sic] an heir-at-law.  The common expression in the books of an heir shall not be disinherited except by express words or necessary implication, is incorrect, the proper terms of the rule are that the intent of the testator ought to appear plainly in the will itself, otherwise the heir shall not be disinherited.  Moore vHeaseman, Willas 141.  And where there is no ambiguity, it has long ago been said by great authority, that a devisee is as much favored as an heir-at-law. 6 Mod. 133, 2 Vern. 340.

            I have thus recapitulated some of the most leading principles laid down in the books, many of old authority, in order to shew that the sages of the law in olden time have not been less liberal in the rules of construction than judges in modern times, and that there is no disposition [p.28] on the part of this court to defeat the obvious intention of the testator, if we can by any legal construction give effect to it.  Assuming that the intention of the testator was to devise the whole of his land, in fee, in portions to his three sons respectively, the question is, do the words of the will bear out that intention?  It is observable that almost the whole of the language used is applicable to a will of personalty and not of realty.  The words "give, bequeath and dispose of", are more appropriate to a disposition of personal property than of real estate, which, when that is intended to pass, is preceded by the word "devise", a word which ex viterminii imports a gift of land, although it may be generally used for the gift of legacies and other personalities.  Conceding that the words "my temporal estate" would be large enough to carry the fee, [p.29] still it is a settled rule that they will not supply any defect in the devising parts of the testament, if they are not sufficient for that purpose.  AN unprofessional person, ignorant of the rules of law, would probably come to the conclusion at once, that the testator meant to give an estate in fee to his son Archibald, in the two forty-acre parcels of land mentioned in the will; but it is the duty of courts of justice to adhere strictly to the rules of law, however hard such adherence may be in the particular instance.  However we may be disposed to decide this case on its own circumstances, still, in the language of Sir James Mansfield in Doe v Child, 1 N. Rep. 346.  "Whenever a case is decided on circumstances others who are to judge afterwards may receive a different impression from the same case whereas the adherence toa general rule is more calculated to avoid uncertainty."  The same eminent judge also observes "that decisions [p.30] founded on the force of particular circumstances indicating particular intentions are more likely to lead to litigation than those which are founded upon adherence to the general rule, that unless there be express words of limitation, or something which renders it necessary to give an estate of inheritance, the heir-at-law shall not be disinherited."

            It was admitted in argument, that under this will the sons Duncan and Danielclearly took only life estates for want of words of limitation.  This concession tends greatly to weaken the argument in favor of the younger son Archibald, for if the real intention was to devise the lands given to each of the sons in fee we are driven to see whether there are any words applicable to Archibald, to distinguish his from his brothers' cases.  I agree that the intention of a testator is not to fail because it cannot take effect to the full extent, and that the court is bound to carry oyo out as far as it can; but the question is, whether the devise to Archibald is distinguishable from the devises of to Duncan and Daniel.  [p.31] Being seized in fee of the land in question, the testator gives forty acres to his wife, for life, and at her decease, and on that event, he says, "when said forty acres of land, house, and premises revert to my younger sonArchibald, with the other forty acres adjoining the said farm, which I also give and bequeath to him at my decease."

            Great force was endeavoured to be ascribed to the word "revert" as implying a devise of the reversion.  Reading that word with the context, it appears to me to imply that the testator had made some precedent devise to Archibald by some other testamentary instrument, and that he thus recognised it by allusion thereto in the present instrument, and did not intend by this will to give him the reversion.  Without some such construction of the will the word "revert" cannot have the interpretation put upon it in argument.  But even if we could read it as if the word "reversion" had been used, it would be insensible, [p.32] having reference to the interest which the testator had in the land.  He had not a mere reversionary interest, he had the absolute fee, and that distinguishes this from the case of Ballis v Gale 2 Vez. Sen. p.48, cited for the lessor of the plaintiff.  In that case the Lord Chancellor said, "The interest the testator had in the land, was the reversion in fee he had in himself expectant on the leases he had granted, whether for life or years.  Reversion is a right of having the estate back again (which creates an interest) when the particular estate determines and, according to Lutwich, devise of a reversion passes a fee - there was a devise of the whole remainder.  Reversion is descriptive of that right of reverter by way of continuance [??], that was in himself; consequently there [p.33] is no ground to split or divide it; for giving the reversion gives the whole reversion, useless words are added, limiting or restraining the interest."  Reversion must have a technical meaning as importing a specific interest, and no authority can be found to interpret revert as meaning a devise of the reversion.  This case is also distinguishable from Loveacres v Blight Cowper 352, for there the words were "all my lands and tenements freely to be enjoyed and possessed alike" words upon which the court laid great stress, in as much as the testator had charged the estate with the payment of annuities so that he could not mean by the word "freely", to give it free from incumbrances [sic].  "The free enjoyment therefore," (as Lord Mansfield says), "must mean free from all limitations; that is the absolute property of the estate."  [p.34] Whatever may be the desire of the Court to construe this will according to popular interpretation, we are all constrained to abide by that rule of English law by which real property has been governed for ages.  In the language of Lord Ellenborough, (Goodright v Barron 11 East 223) "we are tied down by the positive rule of law, that in the devise of real property, where there are no words of limitation, and no necessary implication from the words of the devise to give a larger estate, the devisee can only take an estate for life."  I can find no authority trenching upon this doctrine.  Is there any necessary implication from the words of the devise to give a larger interest than an estate for life.  The forty acres devised to the wife for life, are only said to revert to Archibald, without even any terms of gift or devise until mention is made of the other forty acres adjoining, "which he also gives and bequeaths to him at his decease."  Both these devises are without any words of limitation [p.35] to exclude the heir at law, and iron bound (if I may so express myself) by the rule of law, though contrary to what I think was the probable intention of the testator, we have no alternative but to hold that Archibald Kennedy took only a life estate in the premises.  in the case of Doe v Wright v Child Sir James Mansfield one of the soundest lawyers that ever sat in Westminster hall, struggled hard to get over the rule of law, and was constrained to yield to the opinion of seven judges on the question decided in that case, though he still retained a very strong impression of his own upon the case.  There the testator devised to his grand-sons, (who were all equally objects of his bounty) different portions of his estate.  To his grand-son James he gave all his lands, freehold, copyhold, and leasehold in Essex: to the same grand-son he gave all his estate, freehold and copyhold, in Huntingdonshire; to his grand-son John he gave all his estates, lands, &c. in St Giles's, London, and to James Cowper, his heir at law, he gave the house he lived in, with all the [p.36] lands belonging to the same, and though the intention was evidently to give to his grandson James a fee in the lands in Essex, as he had done in the lands in Huntingdonshire, yet it was holden that for want of words of limitation to his heirs, he took only a life estate, in remainder in the devisor's estate in Essex.  Conceding that the introductory words "my temporal estate I bequeath and dispose of in the following manner," manifest a clear intent not to die intestate, as to any of his property still, unless the language if the devise supports that intent we are fettered by the rule of law.  In the language of Chief Justice De Grey in Frogmorton v Wright (cited in Doe v Child) "though the probable intent of the testator was an absolute disposition, yet it is not a certain intent, nor is it a legal disposition.  There is no case where the introduction of the [p.37] will only has been held to give a fee, where the words of the devise import an estate for life; and though sometimes the devise of an estate may carry a fee simple yet a devise of a house will not."  True it is that the testator here in the introduction bequeaths and disposes of his temporal estate, which word may import a fee, yet in the devising part of the will; he gives "forty acres of land for life to his wife, and at her decease the said forty acres of land revert to Archibald with the other forty acres adjoining the said farm, which he also gives and bequeaths to him at his decease."  Now admitting that if the word estate had been used in the devising part of the will; unless as merely descriptive of the land, the authorities are that it would import a devise of the fee, but here the testator speaks of so many acres of land and if the said "farm" and uses no words of limitation whatever, from which we can by necessary implication, hold [p.38] that the words of the devise gave to Archibald more than an estate for life in the premises sought to be recovered in this ejectment. 

            Without adverting more at large to the numerous cases applicable to questions of this kind, and admitting that, after all, every case must depend upon its own circumstances, I think that, for want of words of limitation, Archibald Kennedy took only a life estate in the land devised to him by his father.  Had it been reserved to us to enter a verdict for the defendant, we should have so directed; but in as much as the Jury have found a general verdict, we have no alternative but to order a new trial.

Notes

[1]         This was pasted into Dowling, Select Cases, Vol. 6, State Records of New South Wales, 2/3464, at pp 39-47.  The Herald version of Dowling's judgment is almost identical to the handwritten version in the notebook of Dowling C.J. (below) and in the Australian, 9 April 1840.

Published by the Division of Law, Macquarie University