[26] Holdfast v. Martin & al. 2 T. R. 656 & 659, note, Fletcher v Smiton & Tilley v. Simpson. 4 T. R. 89, Doe v. Woodhouse & al. 6 Johns. 194, Jackson v. Merrill. 2 Show. 395, Lane v. Hawkins. And the words personal estates, will pass freehold lands if it appear that the testator used them in that sense. 11 East. 246, Doe v. Tofield. So when the word estate is coupled with words of local description, or used in the plural number, it will, notwithstanding these circumstances, pass all the testator's interest. 1 T. R. 411, Cowper v. Martin. 2 T. R. 656, Fletcher v. Smiton. 7 East. 259, Roe v. Wright. 4 Taunton 176, Chichester v. Oxendon. And it is now fully settled that the word estate, used in the operative part of a devise, conveys all the testator's interest, unless clearly restrained by other parts of the will. 6 Taunt. 410, Randall v. Tuchin. 7 Taunt. 35, Denn. v. Hood & al. 9 Vesey Jr. 136, Woollam v. Kenworthy. 1 Brod. & Bin. 72, Harding v. Gardner. The words testamentary estate, may pass a fee simple. 2 H. B. 444, Smith v. Coffin. The words all the rest and residue of my estate. 12 Mod. 596, Shaw v. Bull. 3 P. Wms. 295, Tanner v. Wise. 1 Vezey 10, Ridart v. Paine. Ca. temp. Tal. 284. 2 T. R. 656, Flecher v. Smiton. The remainder of the profits out of my whole estate. 4 T. R. 89, Doe . Woodhouse. V. 2d. In many cases a residuary devise, without the word estate, and without words of limitation, will carry a fee. The residue of my lands, hereditaments, &c. 3 T. R. 351, Doe v. Richards. The residue of my goods and chattels, real and personal, as houses, gardens &c. I Wils. 333, Grayson v. Atkinson. All the residue of my effects real and personal. Cowp. 299, Hogan v. Jackson. Secus of the words, all and singular my effects, without saying real and personal. 2 Maul. & Sel. 448, Doe v. Dring. The words, the residue of my goods and chattels personal and testamentary, give a fee. 3 Brod. & Bin. 85, Doe v. Gilbert. 2 H. B. 444, Smith v. Coffin. So, the residue of my property and effects. 11 East. 290, Doe v. Lainchbury. The residue of my property, goods and chattels. 14 East. 370, Doe v. Langlands. So by a devise of the whole remainder of the testator's land, or of the reversion, a fee may pass to the devisee. 6 Cruise's Dig. Tit. 38. ch. 11. § 45, 47. 3d. Where the introductory clause shews that the testator intended to dispose of his whole property and interest, the subsequent words were formerly so construed, in connexion with it, as to carry the fee, without any express words of limitation. 3 Burr. 1618, Frogmorton v. Holyday. But in the more recent cases courts have laid very little stress upon it; and it seems now to be settled that very little inference of intention can be drawn from mere formal words of introduction, and that they alone are not sufficient to dispose of the fee. Cowp. 306, Hogan v. Jackson. Cowp. 660, Denn v. Gaskin. Doug. 734, Right v. Sidebotham. 6T. R. 612, Doe v. Buckner. 14 East 372, Doe v. Langlands. 6 Johns. 194, Jackson v. Merrill. 3 Wils. 414, Frogmorton v. Wright & al. But introductory words may have some weight in cases where the intent of the testator is doubtful, and where there are other words in the will to carry the intent into effect. 8 East 147, Doe v. Clayton. 6 Johns. 191, Jackson v. Merrill. 3 Brod & Bin. 85, Doe v. Gilbert. 1 Dall. 226, Busby v. Busby. 4th. A devise of land with a direction that the devisee shall pay a gross sum out of it, passes a fee simple to the devisee without words of fimitation, though the sum directed to be paid should not amount even to a year's rent of the land. Cro. Eliz. 204, Wellock v. Hammond. Cro. Eliz. 379, Walker v. Collier. 2 Show. 38, Freak v. Lee. 6 Johns. 185, Jackson v. Merrill. 5 T. R. 562, Denn v. Mellor. 3 Burr. 1623, Frogmorton v. Holyday. 11 Mod. 208, Reeves v. Gower. 11 Mass. 528, So if the devisee be charged with the payment of debts and legacies. 2 Show. 38, French v. Lee. 8 T. R. 1, Doe v. Holmes. Cro. Eliz. 330, Dickens v. Marshall. 5 T. R. 558, Denn v. Mellor. 4 East 496, Goodtitle v. Madden. 3 T. R. 356, Doe v. Richards. 5 East 87, Doe v. Snelling. So if lands are devised with a direction that the devisee shall pay a certain sum annually forever. Cro. Eliz. 744, Shailard v. Baker & ux. Cro. Ja. 415, Webb v. Hearing. 11 Mod. 102, Smith v. Tindal. Or upon condition of paying a sum annually during the life of a third person. 2 Show. 49, Lee v. Stevens & al. 2 Mod. 25, Reed v. Hatton. 3 Burr. 1543, Baddeley v. Leppingwall. 5 T. R. 13, Goodright v. Stocker. 5 T. R. 292, Andrews v. Southouse. But the circumstance of a personal charge upon the devisee, even of a gross sum, is not conclusive evidence of an intention to give a fee. 9 Mass. 167, Lithgow v. Kavenagh. Cro. Eliz. 497, Bacon v. Hill. Nor will a contingent charge carry a fee. 8 Johns. 141, Jackson v. Harris. And where the charge is upon the land devised, and not upon the person of the devisee, or where it is payable out of the rents and profits, the devisee does not take a fee by implication. 1 Pick. 318, Stevens & ux. v. Winship & ux. 10 Johns. 148, Jackson v. Bull. Cro. Ca. 157, Ansley v. Chapman. Cro. Eliz. 330, Dickins v. Marshall. 5 T. R. 558, Denn v. Mellor. 8 T. R. 497, Doe v. Allen. 4 B. & P. 335, Doe v. Child & ux. 3 Maul. & Sel. 516, Doe v. Ramsbotham. Nor where the annual payments are to continue only during the life of the devisee. 3 Dy. 371, b. Ager v. Pool. 5th. As the meaning and intent of the testator is to be gathered by adverting to the whole scope of the provisions made by him for the objects of his bounty, a devise may be construed as passing a fee, without apt words of inheritance, by reference to other devises in the same instrument. 11 Mass. 528, Cook & al. v. Holmes & ux. 9 East. 400, Doe v. Cundall. Cruise's Dig. Tit. 38. ch. 11. § 19. 6th. A general devise without words of inheritance, with a limitation over if the devisee dies under age and without issue, will give an estate in fee. 3 Burr. 1618, Frogmorton v. Holyday. 9 East 400, Doe v. Cundall. 10 East 460, Toovey & al. v. Bassett & al. 7th. A devise to trustees for purposes which require the fee, will carry the fee without words of inheritance. 2 Stra. 798, Shaw v. Weigh. Ca. temp. Talb. 150, Chapman v. Blissett. 3 Burr. 1684, Oates v. Cooke. 1 Ves. 485. Gibson v. Montfort. Fearne Cont. Rem. (6 ed.) 357. 8th. A devise to trustees for the benefit of children during their minority, without any further disposition of the estate, has been held, in some cases, to give such children an estate in fee. Cruise's Dig. Tit. 38. ch. 11. § 14, 15 and 16. 9th. It is held, in Massachusetts, that a devise of wild lands, without words of inheritance, carries a fee; and if it do not appear by the will that the lands devised are wild, the devisee may show that fact by parol evidence. 10 Mass. 302, Sargent & al. v. Towne. 10th. A general rule, and one which may be said to comprehend all others, is that whenever it appears, from a reference to the whole will, and a consideration of the reciprocal bearings of all its parts, or of the particular devise in question, that the testator intended to give a fee simple estate to the devisee, a fee simple shall pass. And the same effect will be produced whether the phraseology imports the whole interest of the testator, or the entire dominion and enjoyment of the thing by the [2 c] [2 d] devisee. Upon this principle, the following words and phrases, either by themselves, or in connexion with other parts of the will, have been held to pass a fee. A devise to a man forever; or to give and to sell; or in fee simple; or to him and his assigns forever; or to him and his blood; but if it be to a man and his assigns, without saying forever, it will be but a life estate, and if it be to a man et semini suo, it will give an estate tail. 1 Inst. 9. b. So the appointment of a person by will to be the testator's heir, will give a fee; Hob. post 75, Spark v. Purnell; and a devise of land, freely to be enjoyed; Cowp. 352, Loveacres v. Blight; but similar words were held not to give a fee in 11 East 220, Goodright v. Barron & al. So, all my property personal and real, gives a fee. 11 East 518, Doe v. Roper: My property after my debts are paid. 17 Johns. 281, Jackson v. Housel; or to dispose of at his will and pleasure, 2 Wils. 6, Goodtitle v. Otway; but where there is a devise for life in express terms, a power of disposal annexed does not enlarge it to a fee. 16 Johns. 588, Jackson v. Robbins. 1 Pick. 326, Stevens & ux. v. Winship & ux. So a fee will pass by a devise to a man and his successors; or to dispose of to which of his children he pleases; or to make provision for his children; or to a man and his heir, in the singular number; or a devise to three daughters, and if one dies before the others &c. one to be heir to the other; or a devise to one, and if he dies under age &c. then to the devisor's heirs; or a devise to a woman for life and afterwards to her son; Com. Dig. Devise. N. 4. So a devise to A. for life, and then to a son of A., except A. purchases land of the same value for his son, and then A. may sell; A. does not purchase &c., the son has a fee. Hob. post 65, Green v. Armsteed. A direction in a will to purchase land, implies a purchase in fee. ibid. A devise to trustees in fee for the benefit of A. without any limitation of the estate to the cestui que trust, passes the beneficial interest to the cestui que trust in fee. 8 T. R. 597, Challenger v. Shephard. A devise to the testator's wife during her widowhood, and a direction to his three sons to pay to each of his three daughters £35, as soon as the estate shall fall into their hands, passes the estate to the sons in fee by implication. 6 Johns. 185, Jackson v. Merrill. So a devise of all my part, share and interest; 5 T. R. 292, Andrew v. Southouse; 5 Maul. & Sel. 408, Paris & al. v. Miller & al.; or, all my real and personal property; 18 Ves. Jr. 193, Nichols v. Butcher; or all my property personal and real; 11 East. 518, Doe v. Roper; or, whatever else I have not disposed of; 1 Salk. 239, Hopewell v. Ackland; will pass a fee to the devisee. So a devise of the income of lands is the same, in its effect, as a devise of the lands themselves, and may pass the fee. 9 Mass. 372, Reed et al. v. Reed. So of the occupation; 2 Plowd. 523, Welcden v. Elkington, and 450, Paramour v. Yardley; or of the issues and profits; Cro. Eliz. 190, Parker v. Plummer; or the free use; 1 Saund. 186, Cook v. Gerard; or the rents; Cro. Ja. 104, Kerry v. Derrick; or the groundrents; 2 Stra. 1020, Maundy v. Maundy; and a devise of the issues and profits of land, to be paid to the devisee by the executors, is a devise of the land itself to the devisee. 5 Mod. 63, Bush v. Allen. 5 Mod. 101, South v. Allen. 1 Salk. 228. S. C. In the case of Widlake v. Harding, above reported, the word inheritance was held to pass a fee, and this case has been often cited as established law. But it seems that the word inheritance does not necessarily import a fee. A. by his will, gave his wife an annuity of £200 for life, and £6000 to his two younger children, to be paid respectively at twentyone years of age, and appointed B., C. and D. as trustees of inheritance, for the execution thereof. This case being sent into C. B. out of Chancery, the court, (Mansfield, C. J., Heath, Rooke, and Cham bre,) unanimously certified that B., C. and D. took no interest in the testator's real estate, and had no power to convey it. 4 B. & P. 116, Trent v. Hanning. But Lord Eldon, doubting the correctness of this opinion, (10 Ves. Jr. 495,) afterwards sent the same case into the King's Bench; where three judges, (Ellenborough C. J., Grose, and Le Blanc,) certified, that the trustees took a fee in the testator's lands; contra Lawrence, J. who thought the meaning of the words too uncertain to disinherit the heir at law. 7 East. 97. To cite the numerous cases in which various expressions in wills have been held to pass an estate tail, an estate for life, &c., would swell this note to an unreasonable extent The law on this subject may be found in Cruise's Digest, title 38. ch. 12, 13, &c. Rob. on Wills, chap. 4. sec. 5, 6, &c. [2 e] INCERTI NOMINIS ET TEMPORIS. Several executions out of several courts on the same joint 'and several obligation made by two: one is arrested by capias, and then the lands and goods of the other taken by elegit: the party arrested may be delivered by audita querela, and shall never be taken again. If elegit be returned nihil, the party may have another execution. Semb. Banc. le Roy. tions upon tions. Monsignior Coke, Chief Justice, reporta ceux Points in Divers Execu Capias in Banco Regis, That when two are bound in ob- joint and sevligation jointly and severally, and the obligee sue one of eral obligathem in the Common Pleas, and the other in the King's Bench, and had against him in the King's Bench a capias, and took him in execution, and after took an elegit against the other, and had lands and goods delivered in execution, as he might well, that thereupon the other in execution by his body had an audita querela, and was delivered. And because the judgment in that case must be, that he be discharged of the execution, he shall never be taken again, though the land taken in execution be evicted. Elegit And he said also, That if an elegit be sued out, and so entered of record, though he get nothing by it, yet he Peremptory. shall never have other execution, until somewhat be found; v. Pasc. 12. and therefore no man will record the execution, until Jac. in B. R In Cowley and somewhat be found; but quære, for it is no election of Legatt's case: it was agreed nothing. And as the record saith that he did choose, by the whole court (accord [2 f] ing to the opinion in this which is not the writ, but lands and goods; so the same record upon the return assures that there are neither, and therefore all idle. (1) case) That a capias doth not lie after execution sued forth upon elegit against the same person; the reason is, because upon the prayer of the party to have an elegit, it is entered upon the Roll, elegit sibi executionem per meditatem terre, so as he is estopped by the Record, to have another Execution. But by the opinion of Hobart in Foster and Jackson's case, fo. 57. that must be intended when the first writ is returned served; but if upon it nihil be returned, then a capias will lie against the party, notwithstanding the elegit is sued forth. Bulst. 2d R. fo. 97. Keeb. 1 R. 71. p. 41. Mod. 91. p. 74. Godb. 181. Br. det 49, 257, 258. 5 Rep. 87. Bloomfield's Case, 2 Cro. 60. ap. 57. 60. Rolls. Abr. 308. Br. excon 96. B. audita quer. 42. Co. 6. 46. H. Yel. 67. Le. 1. 51. p. 65. Ro. 1. 904. 85. 3 Cro. 160. Br. Execution, 99. B. Elegit, 15. 21 H. 7. 19. t. Br. Execution, 72. Br. Elegit, 11. 17. E. 4. 4. Br. Scire Facias, 187. Mo. 545. Cro. Jac. 338. g. 3 Cro. 169. Rolls. R. f. 8. Ro. 1. Ab. 896. Godb. 257. 208, Dy. 299. b. 7 H. 6. 27. Error 14. Br. 67. Ro. 1. 904. Execution Br. 123, 132, 145. Dalt. Sher. 59. (1) See Post, p. 52, Foster v. Jackson, notes 5 and 6. Cornwall. Com. Pleas. Jac. Rot. Innuendo will not enlarge words. Cro. Car. 74. Cro, Jac, 648. 6 JOHN THOMAS vs. AxWORTH. New matter cannot be introduced by an innuendo. (1) In an action upon the case in the Common Pleas, by John Thomas an attorney, against Axworth, for these 352. Brownl. words, This is J. Thomas his writing,' innuendo the plainR. 4. Ro. 1. 66. tiff, and he,' innuendo, &c. hath forged this warrant;' Syd. 16. quoddam warrantum per quendam Richardum Buller Mil. tunc Vic. Com. præd. existen. super quoddam breve de Capias per quand. Margaret. Hog versus præf. def. extra Cur. de Banco prosecut. eid. Vic. direct. innuendo ; upon not guilty pleaded, and found for the plaintiff, it was moved in arrest of judgment, that the innuendo would not support the action, was the word warrant alone being of uncertain sense, and the matter of the action shall not be enlarged nor ascertained by the innuendo, as pox, Co. 17,b. 20, a. innuendo the French Pox; of which opinion I was and am. And note, that after in Trinity Term, in the cause of Yardly and Elhill, this case was vouched, as adjudged according to my opinion, by Justice Nicholls and Winch. But it was not adjudged; but that shews their opinions were concurring with me. [3] Yel. 11. Acc. Hutt. 8. Post. 45, 268, 305. 4 Acc. Moor. 855. (1) An innuendo is used mostly in declarations or indictments for libel and slander. In these cases they are sometimes necessary, because the very words of the defendant must be set forth; and if their meaning is |