By the 30th section every devise of real estate (not being a right of presentation to a church) to a trustee or executor 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 fur life, are to take the fee. When the limitation in n will was made to a trustee by way of use, he took the legal estate by the operation of the Statute of Uses, without reference to the nature of the trust, But in other cases the question was determined.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 conveyance 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 devi-el and bequests contained in them are liable to failure from the death of the devisee or legatee before the testator. 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 limitation 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 testator, eaving 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 persona bad 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 bequest. The same is now true of wills of real estate in which there is a valid residuary devise, so that there is no longer room for many of the questions that arose as to whether the residuary devisee took beneficially 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 tanned, is patent, pared evidence cannot he 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 apparent 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.
(Jarman, On 1174 and Jarman and Sweet's Notes to Bythewood's Precedents, IVills.) WILL. (Scotland.) The right of bequest in Scotland is confined to moveable or personal property. It does not extend to heritable erred property—which comprehends lands and tenements, fixtures, those ap purtenances of a family mansion (such as the pictures, plate, and library) which are called "heirship moveables," the machinery in mines and manufactories, the stock on farms, and every description of security or other right over any of these kinds of property. Settlements may be made of heritable property in the manner which will be described below, but it is a principle of the greatest importance, and one the neglect of which is oxen productive of the most serious consequences, that no such settlement can be made in the form of a will. All persons of sound mind above the ago of puberty (fourteen in males, and twelve in females) may execute wills ; and persons under guardianship, as wives and minors who have curators, may do so without the consent of their guardians. The will of a bastard was formerly ineffectual, and the moveable goods of such n person, Lapsing to the crown on his death, were distributed by a gift iu exchequer ; but this peculiarity was abolished by C & 7 Will. IV. c. 22. A verbal or " nuncupative " will, if uttered in the presence of two witnesses who bear testimony to it, is valid to the extent of a hundred pounds Scots, or St. Os. 8d. sterling. A will, sufficiently formal in all points to prove its terms and its date, must be executed in the presence of witnesses and attested.