Brudenell v. Boughton (1) and The Attorney General v. Ward (2), and it was said, that, if a legacy, charged upon land, can be given by an unattested codicil, why not likewise a part of the produce of the land? To that I answer, that the line has always been drawn between legacies, charged upon the land as an auxiliary fund, and a portion of the land itself, or the produce of the land, when directed to be sold. The principle of these cases may perhaps be disputable : but the Judges, by whom they were decided, did expressly declare, that, with regard to a charge upon land only and by consequence to the produce of it, a devise cannot be made or altered but by a Will, executed according to the Statute.

My opinion therefore is, that the codicil in this case has no effect whatsoever upon the lapsed share, intended for Peter Kington: but it belongs to the heir at law.

1. As to the resulting trust which arises in favor of an heir at law, whenever any part of his ancestor's real estate, or the produce of such real estate, eventually proves not to have been effectually disposed of, see, ante, notes 2, 3, to Kidney v. Coussmaker, 1 Ves. 436.

2. It is indispensably requisite to the validity of a devise of land, or of the produce of land, that the testator's will should be attested conformably to the provisions of the Statute of Frauds: but it does not seem necessary that the execution of a power affecting real estate, in the nature of a charge only, and not passing the land, should, in all cases, be attested by three witnesses; and, when a general charge, on real estate, of all the testator's debts and legacies, has been incorporated in his duly attested will, debts afterwards contracted, or legacies subsequently given by unattested codicils, will be well charged: see note 4 to Habergham v. Vincent, 1 V. 68.

[* 168]

LOWES v. HACKWARD.

[1811, JULY 31; August 1.]

COPYHOLD Conveyed on trust to sell: the money to be deemed part of his personal estate, and in trust for such Uses as he should by deed or Will appoint; and in default for his right heir. A Will, executed on the same day, but not referring to the deed, directing a sale of particular property, and disposing of the personal estate in general terms, held not applicable to the estate, conveyed by the deed; which went to the heir; no Use being by the subsequent instrument declared; if the estate was converted.

THOMAS HACKWARD, being seised of customary lands at Weardale in the county of Durham, by indentures, dated the 30th of October, 1800, conveyed to his nephew Thomas Hackward and John Lowes, their heirs and assigns, to hold unto and to the use of them, their heirs and assigns, upon trust to permit him, Thomas Hackward the elder, to have and to take the rents, issues, and profits, during his life; and from and immediately after his death, as to a part,

(1) 2 Atk. 268.
(2) Ante, vol. iii. 327.

called the Low Field, in trust for his niece Sarah Lowes, to hold unto and to the use of her, her heirs and assigns for ever, paying the ancient and customary rent for the same; and as to all other his customary premises thereby conveyed, upon trust to sell; and that the money to arise by such respective sale and sales, and the clear, yearly, rents and profits, which might arise from the said several estates and premises, should be deemed, become, and be taken by the said Thomas Hackward, the nephew, and John Lowes, their heirs and assigns, as part of the personal estate and effects of the said Thomas Hackward the elder; and that the same should be in trust and to and for such use and uses as the said Thomas Hackward the elder should in and by any deed or deeds, writing or writings, under his hand and seal, attested by two or more credible witnesses, or by his last Will and Testament in writing, to be by him signed, sealed, and published, and declared, in the presence of three or more witnesses, direct, limit, give, bequeath, devise or appoint, of and concerning the same; and in default of such direction, declaration, gift, devise or bequest, then that the same

*

premises should be in trust for the right heirs of the [* 169] said Thomas Hackward the elder, his, her or their heirs or assigns for ever.

Thomas Hackward the elder, by his Will, of the same date, duly executed, and attested by three witnesses, gave certain leasehold estates, and 2007. secured on a turnpike, to Hackward the nephew, and Lowes, in trust to sell; and he gave and bequeathed all his personal estate and effects whatsoever, except as hereinafter mentioned, to them, their executors, administrators, and assigns, upon trust as soon as convenient after his death to call in and receive all debts; and to place the money out at interest upon good real or personal securities, and to receive the interest, &c. and pay, apply, and dispose of the interest money in manner following; and he gave the interest money of all his principal sums, so to be received by his said trustees, their executors, or administrators, and put out on real or personal security, as aforesaid, unto his sister Mary Henderson, the Plaintiff Sarah Lowes, and his nephew Thomas Hackward, for their natural lives, equally to be divided amongst them, share and share alike; with a direction upon the respective deaths of each to call in, and pay and apply, one third of the principal among the sons and daughters of each, share and share alike.

The testator died on the 5th of November, 1803; leaving his nephew Thomas Hackward, his heir at law, and the Plaintiff Sarah Lowes and the Defendant Mary Henderson, his only sister, surviving him.

The Bill prayed, that the deed may be declared a good conveyance of the customary estate, upon the trusts therein expressed; and that the beneficial interest in the estates, or the money to arise by the salė, may be declared to have passed by the bequest of the residue of the personal estate, contained in the Will.

[* 170]

1

The Decree, pronounced at the Rolls on the 15th of December, 1808, declared, that according to the true construction of the Will, the beneficial interest in the customary estate, conveyed in trust to sell, or the money to arise by sale thereof, did not pass by the bequest of the residue of the testator's personal estate; reserving the consideration, whether the said customary estates, or the money arising by sale thereof, are liable to the payment of the testator's debts; directing an account and inquiry accordingly.

A Petition of Appeal was presented from so much of the Decree as declared, that the beneficial interest did not pass by the bequest of the residue; insisting, that the deed of trust was a good and sufficient conveyance of the customary estates; and that the beneficial interest in the estates, conveyed in trust to sell, or the money to arise by the sale, passed by the bequest of the residue of the personal estate, contained in the Will; and that the Plaintiffs may be declared entitled accordingly.

*་

Mr. Hart, and Mr. Cooke, for the Appellants, contended, that these instruments, executed on the same day, and for the same purpose, to make a disposition of the estate, must receive the same construction, and be read as explaining each other; and upon the true construction of both the intent appeared to pass all, that in any shape could be considered as personal estate. Sir Samuel Romilly and Mr. Belt, in support of the Decree, maintained that there was no conversion against the heir.

[* 171]

*The Lord CHANCELLOR [ELDON].-I do not think that the authorities alluded to apply closely to this. Where a person, having a power to dispose of the personal estate of another, by his Will bequeaths his personal estate, describing it as his own, not as that of the author of the power, that prima facie is not an execution of the power: but this testator states expressly by a deed, executed on the same day as his Will, that the money to arise by the sale of this estate is to be considered as his personal estate. The question therefore is, whether he has disposed of this, which had so become part of his personal estate. If it is by the deed converted into personal property, and given away by the Will, the heir is disappointed: if on the other hand, being converted it is not disposed of by the Will, it is money arising from the sale of the estate; and for want of appointment belongs to the heir; who has a right to say, that it shall remain land.

If the testator had, as I think he meant to do, recited this deed, and referred to it, so as to entitle me to consider it as part of his Will, there would be no difficulty: but, construing the Will, when I find a subject, which is to be taken to be part of his personal estate, I must see what disposition the Will makes of any thing, that can fall under that description of personal estate; and this Will has no reference whatsoever to that deed. The first part says nothing as to the direction of those sums, to arise from the sale of the estate, conveyed by the deed; but is expressly confined to the leasehold estates, and the turnpike bond, directed to be sold. If therefore

*

this copyhold estate is to be considered as by force of the deed having become part of the personal estate, the disposition of it as personal property, must be found in some subsequent clause of the Will; and if there is no such disposition, the title to [* 172] this property must go according to the deed. The words. of exception," as hereinafter mentioned," give reason to suppose that under the general description of his personal estate and effects he did include things not enumerated in this special trust: but then it turns round to this; whether, if he has not subsequently expressed the purpose, attending to what follows the effect is not, that, though included under that general description "personal estate and effects," it is to be disposed of as personal property, given upon trusts, which are not declared. The deed not being recited or referred to by the Will, the direction to place out the money can only mean the money arising from such sale as is directed by that Will, the leasehold estates and turnpike security.

Taking this therefore to be part of the testator's personal estate, and believing, that he meant to dispose of it, I have no right to conjecture, that the Will does dispose of that, which in terms is not disposed of; and the result is, that, if it remains real estate, it belongs to his heir; and if it is converted into personal estate, it is his personal estate given to the uses, to which he shall appoint his personal estate; and, no uses being declared, it is his personal estate, to go as is directed by the deed as to the said money, to arise from the sale of this estate that is to go to his right heir; who has a right to say, he will take it as land or money.

SEE notes 2, 3, to Kidney v. Coussmaker, 1 V. 436; and note 2 to Rashleigh v. Master, 1 V. 201.

LEYSON v. PARSONS.

[ROLLS.-1811, AUGUST 1.]

[* 173]

ANNUAL payment of 1d. by each occupier for tithe of hay a good Modus: but an Issue granted.

Modus for turnips bad; being of too recent introduction into this Country to be the subject of immemorial usage.

THE Bill, filed by the Vicar of Cadoxton, near Neath, in the county of Glamorgan, against an occupier of lands in the parish, prayed an account of tithes; claiming by some ancient endowment, usage, custom, prescription, or otherwise, tithes of wood, hay, mills, calves, pigs, colts, kids, turnips, potatoes, honey, gardens, eggs, poultry, and all Easter offerings, due and payable within the said parish, &c.

The Defendant by his answer stated the manner of accounting and paying for tithes from time immemorial, either in kind or by

composition of all the articles stated in the Bill; and as the payment in lieu of tithe of all hay, made and carried in and from any of such lands in the tenure of such occupier, be the quantity great or small, as well for two or more farms or tenements, as for one, the annual value of 1d.: also for every garden or field, sown with turnip seed, and for all turnips growing thereon, the like sum of ld. without reference to the quantities thereof respectively growing, had, or taken by such occupier.

The Plaintiff by amendment abandoned his claim as to all the articles except hay and turnips; and having replied to the answer, the Defendant went into evidence in support of the Modus he alleged; producing a terrier under the hand of a former Vicar; and proving as exhibits at the hearing, the office copies of the Bill, Answer, and Depositions in a cause of John v. William (1), upon a Bill for tithes in the same parish.

[* 174]

fendant.

* Mr. Richards and Mr. Lewis, for the Plaintiff: Sir Samuel Romilly, Mr. Bevan, and Mr. Heyes, for the De

The MASTER OF THE ROLLS [Sir WILLIAM GRANT]. From the manner in which the Bill was amended after the answer, it is a little difficult to know what is in issue; and consequently what is the point to be determined. The Plaintiff first set forth his right as Vicar, to the tithes of a great variety of articles; and then states, that the Defendant had upon his farm all the enumerated articles; that the tithes were subtracted; and the Bill prays an account, and payment, of the value of the tithes subtracted. By amendment the state of his right is narrowed by striking out wood, potatoes, and agistment; and then his claim is to be entitled to tithe of hay, mills, calves, pigs, colts, &c.: but when he proceeds to state what titheable matters the Defendant had, he strikes out all except hay and turnips. In that state of the record I wish to know whether I have any thing to determine but the right to the tithe of hay and turnips.

It was admitted at the Bar, that the Plaintiff's claim was reduced to those two articles.

The MASTER OF THE ROLLS [Sir WILLIAM GRANT].-A Modus is alleged as to both. As to that for hay, on comparing the manner in which it is laid, with that in Bennet v. Read (2), there [*175] is no destinction between * them. In each case a custom

is alleged in the parish for every occupier to pay a particular sum in lieu of all tithe. The quantity is therefore immaterial. If that case is to be distinguished from Traves v. Oxton (3), so is this in the same manner: if those cases are not to be distinguished, Bennet v. Read being the more recent case, I ought to follow it;