The intention section enacts that, unless a contrary appear on the will, a residuary devise shall include all estates comprised in lapsed and void devises. This alters the former law, whereby such estates devolved on the heir. The 26th clause enacts that a general devise of the testator's lands shall include copy hold and leasehold as well as freehold lands, unless a contrary intention appear. This also effects a considerable alteration in the law of devises. Formerly neither copyholds (unless surrendered to the use of the will) nor leaseholds would pass by a general devise of lands or other general words descriptive of real estate, unless the testator had no freehold lands on which the devise might operate. Since the statute of the 55 Geo. III. c. 192, which dispenses with the necessity of surrenders in certain cases, copyholds stood upon nearly the same footing as freeholds, in respect to a general devise ; but leaseholds still con tinued subject to the old rule of law. By the 27th section, unless a contrary inten tion appear, a general devise of real estate and a general bequest of personal estate are respectively to include estates and property over which the testator has a general power of appointment. It was never considered necessary in the exe cution of a power of appointing real estate, whether general or special, to refer ex pressly to the power. It was sufficient if the intention to exercise it appeared from a description of the property in the will or by other means. If the had no other lands which answered the de scription, a general devise would have been a good execution of the power ; but it was otherwise if he had any other lands which would satisfy the terms of the devise. The enactment applies only when the testator has a general power of appointment. Where the power is limited or special, it seems that the old rule of construction will still hold. As to personal property the rule was, that there must be some reference to the power, on the somewhat unsatisfactory ground that as any person must be sup posed possessed of some personalty, there was enough to make a general bequest operative without reference to the pro perty comprised in the power. With respect to devises, it seems that the old rule must still prevail where the power is special or limited. By the 28th section a devise of real estate without words o. limitation is, unless a contrary intention appear by the will, to be construed to pass the fee. This clause introduces a very considerable alteration of the old law, under which, in accordance with the doctrine that the heir was not to be dis inherited by implication, it was settled that a devise of lands without words of limitation conferred on the devisee an estate for life only, notwithstanding the appearance of a contrary intention in other parts of the will. The 29th section enacts, that in any devise or bequest of real or personal estate the words " die without issue," " die without leaving issue," or " have no issue," or any other words of the like import, shall be con strued to mean a want or failure of issue at the time of the death, and not an in definite failure of issue, unless a contrary intention appear ; except in cases where such words mean, if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue. Under the old law, when a testator gave an estate to A and his heirs, and directed that if A died without issue it should go to B, though his meaning in most cases was that B should have it unless A had issue living at the time of his death, the word " issue " was held to comprise de scendants of every degree existing at any distance of time, and the consequence was, that where the subject of the devise was real estate, A took an estate tail and acquired the absolute dominion over the property, and where it was personalty the ulterior disposition to B was void for remoteness.
By the 30th section every devise of real estate (not being a right of presen tation to a church) to a trustee or exe cutor is to be construed to pass a fee simple, unless where a definite term of years or an estate of freehold less than the fee simple is expressly given to him. And by the 31st section trustees under an unlimited devise to them, when the trust may endure beyond the life of a person beneficially entitled for life, are to take the fee. When the limitation in a will was made to a trustee by way of use, he took the legal estate by the ope ration of the statute of uses, without reference to the nature of the trust. But in other cases the question was deter mined by the intention of the testator, as collected from the nature of the trust ; and the trustee was considered to take ,only that quantity of estate which the exigencies of the trust required. Such a rule of construction was obviously of very difficult operation, and it was often not easy to determine in whom the fee was vested at any given period, and therefore who were the proper parties to deal with the property and to join in a con veyance of it. The enactments contained in the two last-mentioned sections will in a great measure remedy this inconvenience.
It follows from the nature of wills that the devises and bequests contained in them are liable to failure from the death of the devisee or legatee before the tes tator. This is called the doctrine of lapse. It applies equally to devises of real estate and to bequests of personalty. It is a general rule that words of limi tation to heirs or executors superadded to a gift have no effect in preventing lapse in case of the devisee or legatee dying before the testator, for they are considered not as words of gift, but merely as indicating the legal devolution of the property. When the gift is to several persons as joint tenants, unless all the objects die before the testator, there can be no lapse; for as joint tenants are each takers of the whole, any one existing at the death of the testator will be entitled to the whole. The same is the case where the gift is to a class, unless where the individuals of the class were ascertained before the lapse. Two changes have been introduced into the law of lapse by the new act. The 32nd section enacts that devises of estates tail shall not lapse, but that where the devisee in tail dies during the life-time of the tes tator, leaving issue, the devise shall take effect as if he had died immediately after the testator, unless a contrary intention appear by the will : and, by the 33rd section, gifts to children or other issue who shall die before the testator, having issue living at the testator's death are not to lapse, but, if no contrary intention appear by the will, are to take effect as if the persons had died immediately after the testator. As a will of personalty operated upon all the property of that kind belonging to the testator at the time of his decease, there could obviously be no intestacy with regard to any part of the personal estate while there was a valid residuary betrest. The same will now be true of wills of real estate in which there is a valid residuary devise, so that there will no longer be room for many of the questions that arose as to whether the residuary devisee took be nefiaally or as a trustee, and as to the devolution of real estate directed to be sold.
If an ambiguity exists on the face of a will, or, as it is technically termed, is patent, parol evidence cannot be admitted to remove it, because to admit evidence to explain what the will has left uncertain would be in effect to make a new will by parol. If the ambiguity is not ap parent on the face of the will, but arises from circumstances disclosed when an attempt is made to carry the will into effect, it may be removed by evidence of the same nature.
(Powell On Devises, and Jarman's Notes to Bythewood's Precedents, Wills.)