Page:The English Reports v1 1900.pdf/1408

nor yet were they chattels personal. What were they then, if they were not chattels real? Lord Coke says, 1 Inst. 345. b. "interesse is vulgarly taken for a term, or chattels real, and more particularly for a future term;" so that in his days, at least, future terms were chattels real.

Still it was urged, that though these leasehold interests were chattels real, the testator could not properly be said to have died possessed of them, as they were future terms, which did not commence in possession during his life.

But this objection came with very little propriety from those who contended for straining the word effects to include real estate, under a presumption that the testator was inops concilii, and therefore not tied down to propriety of expression. The title of the plaintiff in error needed no such latitude of construc-[396]-tion, as this objection surmised; indeed it might have been imagined that the second special verdict found in this cause, would have precluded this as well as the last objection, when it expressly stated, that the yearly value of the chattels real, of which the testator was possessed at the time of making his will, and at his death, was £30, etc. The land itself is not a chattel, it is an hereditament: it is the interest or term of years in the land which constitutes the chattel real. A man may be properly said to be in possession of this interest, though the actual possession of the land by virtue thereof is not to take place for a thousand years to come; he is said to be in possession of this interest because it is vested in him, so that he may exercise every act of ownership over it; he may give it, sell it, assign it, settle, bequeath, or dispose of it as he thinks proper; he possesses and disposes of it as a present subsisting right to a future actual occupation of the land. Lord Coke in the place before cited, after saying, "interesse is vulgarly taken for a term or chattel real, and more particularly for a future term," adds, "the party entitled hereto is said in pleading, to be possessed de interesse termini;" so that in fact, the word possessed was so far from not being properly applicable to the testator's future leasehold interests in this case, that the ablest special pleader could not have described them, or expressed the testator's ownership therein, at the time of his decease, with more strict legal propriety than by the word possessed.

But it was contended, that the introductory words, as to my worldly substance, indicated the testator's intention to dispose of everything he had; and the case of Ibbetson v. Beckwith (Forrester, 157) was insisted upon as in point. In that case the testator, after saying, "as touching my worldly estate, wherewith it has pleased God to "bless me, I give, devise, and dispose of the same in manner following," makes the following devise; viz. "I give unto my loving mother all my estate at Northwith, etc. for her natural life, and to my nephew Thomas Dodson, after her decease." The question was, whether Thomas Dodson took an estate in fee, or for life? And Lord Talbot decreed, that he took in fee.

The word estate, used in the case of Ibbetson v. Beckwith, is properly applicable to real estates, and of this no doubt existed; but the omission of the word heirs left it a question, whether it passed more than an estate for life to Thomas Dodson; for the devise to him was not confined by an express limitation for life. It has often been held, that the words all my estate, will carry the fee without the word heirs. The word effects, used in the present case, is properly applicable to personal estates only; and effects real are synonymous to chattels real; could they even signify lands, they could give no greater estate than the words lands would have done, i.e. an estate for life only, for want of the word heirs; for it is an indisputable rule of law, that a devise of lands to a man indefinitely, without the word heirs, or other words [397] tantamount, gives only an estate for life. The force of the introductory clause, in the case of Ibbetson v. Beckwith, did not rest on the words as touching my worldly estate, but on the subsequent words, I give, devise, and dispose of the same in manner following. These words expressed a total disposition in general terms, referring to what followed for the particulars. In the present case, the words as to my worldly substance, imported no devise, bequest, or disposition at all; they only expressed a transition of the testator's contemplation from his spiritual to his temporal affairs, and that the subsequent dispositions related to his worldly substance; but in no sort expressed or implied the measure, extent, or quantum of such dispositions: besides, introductory words, even where they express a disposition, are frequently considered rather as the formal words of the scrivener, than as any expression of the testator's intent. As to this point, the case of Timewell v. Perkins (2 Atk. 102) is a direct authority; where the testator, after