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saying, as touching the temporal estate with which it hath pleased God to bless me, I give, bequeath, and dispose of as follows, devised in the words following:

Item, all those my freehold lands and hop-grounds, with the messuages, tenements, barns, etc. now in the tenure of, etc. and all other the rest, residue, and remainder of my estate, consisting in ready money, plate, jewels, leases, judgments, mortgages, etc. or in any other thing whatsoever and wheresoever, I give unto my dearly beloved Arabella Hitchins and her assigns for ever.

Here, though the strength of the introductory clause was insisted upon, and it was urged that the word estate would include lands as well as personal estate; yet as the word estate in the residuary clause was coupled with personals, it was held, that the residue of the real estate did not pass; and that whilst it admitted of a doubt, certainly the heir at law ought to be preferred.

But it was further insisted, that if neither the residuary or the introductory clause separately contained words sufficient to pass the real estate, yet that defect might be supplied by blending them together, and bringing down the words worldly substance from the introductory clause, where the testator himself had thought proper to leave it, into the residuary clause, where the defendants claim could not well do without it, and that this would remove all difficulties at once; for the word substance is used in a general sense, and applied to real estates in the statute 4 & 5 Phil. & Mary, c. 8.

This, however, would be only substituting one difficulty in the room of another; for upon looking into the statute, it appears that the words of the preamble, the only place in which the word substance occurs, are "lands, tenements, and hereditaments, and other great substance in goods and chattels moveable; which words, so far from extending the word substance to real estates, expressly confine it to one single species of personal estate, viz. goods, or chattels moveable. But without enter-[398]-ing into a discussion of the meaning of the word substance, it might be sufficient to observe, that the testator had not thought proper to use that word in the residuary clause; and it was conceived, that the parties were to content themselves with the will as he left it, and were not at liberty to exchange the words actually used by him, for others better adapted to their own purposes. Should it even be allowed that they might combine these two clauses together, in support of an intent implied in either, not incompatible with the rest of the will; yet no rule of construction could authorise the tacking together the first and last lines of a will, in order to annihilate all that intervenes; nor indeed was it easy to conceive, how a residuary clause, wanting the force to pass real estates, could possibly derive that force from an introductory clause, which contained no disposing force at all.

II. Another rule of construction is, that where words used by a testator are indifferently applicable to real and to personal estates, they shall not, if there be any thing to satisfy them, receive a construction prejudicial to the heir; and this was determined in the three leading cases of Bowman v. Milbank (Lev. 130), Shaw v. Bull (12 Mod. 592), and Merchant v. Twisden (1 Eq. Ab. 212). In the first, the testator devised in these words, "I give all to my mother, all to my mother;" and it was held that no lands passed, as the word all might relate either to real or to personal estate. In the second, a testator seised of five messuages, after making a complete devise of four of them, says, "and all the overplus of my estate to be at my wife's disposal;" and it was held, that the fifth house did not pass even by this strong residuary clause. In the third case, a testator, after giving certain legacies, says, "all the rest and residue of my estate, chattels real and personal, I give and devise to my wife;" and it was held, that the reversion of lands settled in jointure on the wife for life, did not pass to her by this residuary clause. The opinion of the Court in the case of Shaw v. Bull, as delivered by the Lord Chief Justice Trevor, applied directly to the present case. His words were,

That in the construction of wills, generally the words my estate, the residue of my estate, or the overplus of my estate, may well pass an inheritance, where the intent is apparent to pass it; but such intent to carry an inheritance by such words, must be very apparent and necessary, to be drawn from the words of the will, and circumstances of the case; for if the words be indifferent to real and personal estates, or may be applied to personal alone, there the heir at law is not to be disinherited by the implication of such words, or by any implication at all, but what is a necessary one.

Now in the present case, the words bequeath, effects, and possessed of, were indisputably much less applicable to real than to personal estate. They have never been admitted to apply to the former, but where insurmountable arguments of such an intent, afforded by other