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corporate from the time of the transfer. The interpretation clause, section 142, of the 5 & 6 Will. 4. c. 76. defines trustees to mean trustees, commissioners or directors, or the persons charged with the execution of a public trust or duty by whatever name they are designated." The facts are, that by a provisional order, confirmed by act of parliament, a local board of health was constituted for the parish of St. John the Baptist, Margate, Kent, comprising the town of Margate, and also a rural district; but by the terms of the order their rating powers were, in the first instance, confined to an area conterminous with the town, though power was given them from time to time to extend the rating area so as to bring into it the rest of the district; and the members of the local board were to be elected by the ratepayers within the rating area for the time being. Then the town of Margate was incorporated. At this time, therefore, the local board of health was elected by the inhabitants of a rating area co-extensive with the new borough, though the district over which they might extend their powers was more extensive. They professed, by indenture, to transfer their powers to the corporation of the borough, which, subsequently, sought to extend its powers to part of the rural district; and the question whether the municipal corporation can thus extend their powers over the rural parts of the district depends on the question, whether the transfer to them of the powers of the local board of health was valid; and that again depends on this, whether a local board of health for a district comprising a borough are within the meaning of the 20 & 21 Vict. c. 50. s. 2. trustees for executing an act for paving, &c. within the meaning of the enactment; and we think that they are not. There is no doubt that the duties of the local board of health, imposed by the General Public Health Acts, comprised many of those duties enumerated in the enactment in question, and the general course of legislation has been by a provisional order, confirmed by act of parliament, to transfer to the local board of health the powers of all trustees for executing local acts of that description within their district: so that local boards of health are charged with the execution of a public trust or duty, and are acting under the Public Health Acts, confirming the provisional order under which they are created; and those acts may, in one sense, be said to be acts for the purposes mentioned in the 2nd section of the 20 & 21 Vict. c. 50. But we think that they are not such as were intended by the legislature. The whole scheme of the Public Health Act, 11 & 12 Vict. c. 63, is to transfer all powers of this kind to a local board where there is one. By section 12, if the district either is or becomes co-extensive with a borough, the council of that borough are the local board, but the local board of health and the municipal corporation are kept distinct, so that the borough fund is not liable to the creditors of the local board. If the district consists partly of a borough, the local board are to consist partly of members of the council; and, by section 33, if the district become entirely comprised within a borough, and a day is named in the charter of incorporation for that purpose, the powers of the persons then forming the local board are to be transferred to the council of the borough. There is no similar provision applicable to the case of part of the district being brought within a borough. Now, we cannot think that the legislature intended by the 20 & 21 Vict. c. 50. s. 2. to give to a local board, part of whose district lies within a borough, power to reverse the whole of this legislation, and to charge the municipal corporation with the duty of carrying the Public Health Act into execution, so as on the one hand to charge the borough fund with all the liabilities of the local board of health, and, on the other, to deprive the ratepayers of the rural part of the district of all share in the election of those who are to govern them. We think, therefore, we must, in order to effectuate the intention of the legislature, construe the section as applying only to bodies charged with the duty of executing local and personal acts of the kind mentioned in the enactment, which was, no doubt, what was meant.

Our attention was called to the 21 & 22 Vict. c. 98. s. 26, which is, no doubt strangely framed, as it declares that a transfer made by any local board of health to the mayor, aldermen and burgesses of any corporate borough, by their

council, shall be valid and effectual, the district of such board and such corporate borough being identical, "though no day shall have been named for such transfer in the charter incorporating such borough." Now, in case, within the 33rd section of the Public Health Act, 1848, no transfer is made by the local board, and if the transfer was supposed to be made under the Municipal Corporation Acts, the absence of the naming of a day in the charter of incorporation is quite immaterial. But though it is very difficult to say what was meant, it is clear that this enactment cannot extend to the present case, in which the districts are not identical. We regret to be obliged to decide as we do, as we are sensible that the consequence must be that the affairs of the district must be thrown into a state of confusion, which may probably render it indispensable to apply for a local act to set things right; but this we cannot help.

Judgment for the plaintiff.

[IN THE QUEEN'S BENCH.]

June 9, 13, 1866.

LLOYD v. JACKSON AND OTHERS.

35 L. J. Q.B. 188; L. R. 1 Q.B. 571; 7 B. & S. 683; 14 W. R. 960: affirmed, [1867] E. R. A.; 36 L. J. Q.B. 169; L. R. 2 Q.B. 269; 7 B. & S. 698; 15 W. R. 408 (Ex. Ch.).

Distinguished, Shannon v. Good, 1884, 15 L. R. Ir. 284 (V.C.).

Will, Construction of-Devise without Words of Limitation-Inference from Direction as to Education of Children.

WILL.-The following devise, made before the Wills Act, "As touching such worldly estate wherewith it hath pleased God to bless me in this life, I give and bequeath to my well-beloved wife M. A., whom I likewise constitute, make, and ordain my sole executrix of my last will and testament, all and singular my lands, messuages, and tenements, by her freely to be possessed and enjoyed, together with all my houses and household goods, deeds, and movable effects; all my children to be educated and settled in business according to my wife's discretion, was held to carry the fee to the executrix, as the words relating to the education of the children, whether they created a binding trust to be enforced in equity, or merely expressed a wish which was not obligatory, were enough to shew the intention of the testator that the executrix should have the inheritance.

Ejectment by the plaintiff as heir-at-law of the testator, Ebenezer Lloyd, to recover possession of certain land, houses, and premises in the parish of Fishguard, in Pembroke.

At the trial, before Blackburn, J., at the Assizes for the county of Pembroke, on the 28th of February, 1866, it appeared that the will of Ebenezer Lloyd, dated the 9th of June, 1809, was as follows:

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In the name of God, amen. I, Ebenezer Lloyd, of the parish of Fishguard, in the county of Pembroke, being of perfect mind and memory, thanks be given unto God therefore, calling into mind the mortality of my body, knowing that it is appointed to all men once to die, do make and ordain this my last will and testament; that is to say, principally and first of all, I give and recommend my soul into the hands of Almighty God that gave it, and my body I recommend to the earth to be buried in decent Christian burial, nothing doubting but at the General Resurrection I shall receive the same again by the almighty power of God, and as touching such worldly estate wherewith it hath pleased God to bless me in this life, I give and bequeath to my well-beloved wife Mary Ann

Lloyd, whom I likewise constitute, make, and ordain my sole executrix of my last will and testament, all and singular my lands, messuages, and tenements, by her freely to be possessed and enjoyed, together with all my houses and household goods, deeds, and movable effects; all my children to be educated and settled in business according to my wife's discretion."

The will concluded with a revocation of former testaments. Mary Ann Lloyd, the widow of the testator, upon his death, took possession of the property in question, which she occupied till her death, in 1865, devising it by her will to uses for the benefit of the plaintiff and the defendants. A verdict for the plaintiff was directed by the learned Judge, with leave for the defendants to

move.

Joshua Williams, accordingly, in Easter Term, 1866, moved for and obtained a rule to enter the verdict for the defendants, on the ground that the widow took under the will an estate in fee simple, and not one for life.

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is

Mellish, Hardinge Giffard and J. W. Bowen shewed cause. The widow took an estate for life only. The rule is clear, that before the Wills Act a devise without words of inheritance did not pass the fee. The introductory words, "as touching such worldly estate," cannot be relied on as shewing an intention that the testator intended to convey the fee, unless the word estate imported into the devise. By themselves, the words merely mean "with reference to my estate." In Denn v. Gaskin (2 Cowp. 657), where the will commenced with these words, Lord Mansfield said that, as there were no words to connect the devise with the introduction so as to pass the whole interest, the words could only mean with respect to my worldy estate." That case is in point, and differs only from this by the fact that here there is but one devisee. But no decision can be referred to which shews that this circumstance is material. In Grayson v. Atkinson (Wils. 333) it is merely said that if the words all my temporal estate are used, they shew an intention to charge the inheritance. The words " by her freely to be possessed and enjoyed " might, in the absence of authority, be thought material. But in Goodright v. Barrow (11 East, 220) it was held that these words by themselves are insufficient to raise a presumption that the testator meant to convey the fee. But the main question will, no doubt, be, whether the words all my children to be educated and settled in business according to my wife's discretion" are enough to impose a charge on the wife, so as to raise an inference that it was meant to give her the fee. It is quite clear that they do not. It may be doubted whether they mean more than that the widow is to be guardian. A leading case on this subject is Foley v. Parry (5 Sim. 138), where the words were " it is my particular wish that my dear wife will superintend and take care of the education of W, so as to fit him for any respectable profession or employment." It was held, that these words amounted to a gift to W. of the expense of his education. But it is decided that, in order that such a direction should raise a presumption that an estate in fee is conveyed, the direction must be one which without the inheritance cannot well be carried out. In Moor v. Denn (2 Bos. & P. 247) the rule is explained by Chief Baron Macdonald, and it is shewn that where there is no charge no presumption can be derived from words of request. Here there is only a personal direction to the wife.

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[BLACKBURN, J.-Settling a child at once may require a large sum.]

The principle upon which the Courts have acted in holding that the existence of a charge was evidence of a devise in fee is that otherwise damnosa hæreditas might fall to the devisee. But according to Foley v. Parry (5 Sim. 138) there is a gift to the children of the expenses of maintenance, and the executrix is not bound to see to the execution of any trust. They cited Doe d. Small v. Allen (8 Tem. Rep. 497), Doe d. Ashby v. Baines (2 Cr. M. & R. 23; s. c. 4 Law J. Rep. (N.S.) Exch. 141), Bromitt v. Moore (9 Hare, 374; s. c. 22 Law J. Rep. (N.S.) Chanc. 129), Thorp v. Owen (2 Ibid. 607; s. c. 11 Law J. Rep. (N.S.) Chane. 129), Doe d. Knott v. Lawton (4 New Cases, 455), Doe d. Knocker v. Ravell (2 Cr. & J. 617), Burton v. Powers (3 Kay & J. 170; s. c. 26 Law J. Rep. (N.S.) Chanc. 330), and Jarman on Wills, vol. 2, 3rd edit. 247.

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Joshua Williams (June 9), H. G. Allen and C. Coleridge, in support of the rule. The executrix took under the will an estate in fee. Even before the Statute of Wills the intention of the testator was the chief criterion in construing a will-Biederman v. Seymour (3 Beav. 368), Jarman on Wills, 7th edit. vol. 1, p. 277. The words as touching such worldly estate" cannot be rejected. They shew that the testator intends to part with everything that he has. In Ibbetson v. Beckwith (Ca. t. Talbot, 157) it is said that where the testator sets out in his will to give and dispose of his worldly estate, this is a strong proof that he intends to dispose of the inheritance.

[BLACKBURN, J.-There the word "estate

body of the devise. ]

was brought down into the

In Smith v. Coffin (2 H. Black. 444) it is said by Serjeant Williams, arguendo, that the introductory clause when connected with the rest of the will, affords a good ground on which to reason in favour of the devisee. Loveacres v. Blight (1 Cowp. 352) is also strongly to the same effect. With regard to the direction as to the education of the children, it is contended that these words amount to a charge on the executrix. The Courts of Chancery have had much difficulty in deciding as to the existence of such charges. Costabadie v. Costabadie (6 Hare, 410) shews that the mere fact that the devisee has a discretion, does not prevent the trust from being enforced. There is no guardian appointed and no trustees, so that the charge falls upon the wife as executrix, They cited Doe d. Willey v. Holmes (8 Term Rep. 1), Doe v. Richards (3 Ibid. 356), and Cole v. Rawlinson (1 Salk. 236).

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BLACKBURN, J.-In this case we heard part of the argument on a former day, and it is unnecessary that we should take further time to consider our judgment. The question arises upon the construction of a will; and if the widow of the testator took under this will an estate in fee, the defendants are right and the rule must be made absolute. I have come to the conclusion that upon a true construction of the will the widow did take an estate in fee, and the rule must consequently be made absolute. The general rule by which a case like this is decided, is to look at the will and endeavour to collect from it the intention of the testator. This word "intention" must not, of course, be understood in its ordinary sense, but must mean an intention expressed in proper words, according to the ordinary rules of law. Now, at a very early period. before the Wills Act, it was established that a plain gift or devise of lands, farms or tenements, or words to that effect, would only operate to convey to the devisee an estate for life, and would not disinherit the heir unless, from the express words or provisions of the will, it should appear to have been the intention of the testator that an estate of inheritance should pass. But it has often been held, that if the word "estate," or some equivalent term, be used in the devise, as if the testator had said, I devise all my estate in Blackacre to A. B," that there would be sufficient to explain the intention of the testator, and that a devise of the estate would carry the inheritance. But I do not think that the mere introduction of these words at the beginning of the will," touching all my wordly estate," shewing that the devisor did not intend to die intestate. will alone make a subsequent devise carry the fee. The distinction is rather a nice one, but where it is shewn that the introductory words may be brought down into and united with the devise, so that the testator may be supposed to have said, "I do not intend to die intestate, but to dispose of all my estate, and I give and devise it accordingly," the Courts have adopted that construction, so that the estate is included in the devise, and the inheritance is conveyed. But the two cases, Denn v. Gaskin (2 Cowp. 657) and Doe d. Small v. Allen (8 Term Rep. 497) distinctly shews that where the word "estate" is not brought down and incorporated in the devise, the inheritance cannot be enlarged. These cases Mr. Williams endeavoured to distinguish from the present one, on the ground that here there is but one devise to one devisee. But in Denn v. Gaskin (2 Cowp. 657) an equal interest in the whole of the lands was devised to the same persons; and in Doe d. Small v. Allen (8 Term Rep. 497), it appeared that

there were other lands as to which the testator intended to die intestate. I think, therefore, that these two cases are not to be distinguished, and that as far as they apply, they go to shew that the fee was not conveyed by the words of the present will. Proceeding further, we find the testator gives all his lands, messuages and tenements to the executrix, by her "freely to be possessed and enjoyed." Now, there can be no doubt that in Loveacres v. Blight (1 Cowp. 352) Lord Mansfield gave some weight to these words, " freely to be possessed and enjoyed." But there were other circumstances, to which his Lordship attached weight, to lead to the inference that an estate of inheritance was given; and in the subsequent case of Goodright v. Barrow (11 East, 220), where the same words occurred, and Loveacres v. Blight (1 Cowp. 352) was brought to the notice of the Court, it was distinctly held that by themselves these words were not sufficient. This case is the later one of the two; and I think that we ought to follow it, and hold that in the present instance these words alone are not sufficient. But we now come to that part of the will which, I think, is sufficient to give to the widow an estate of inheritance. After devising all his lands to his wife, to be by her freely enjoyed, with all his houses, household goods, and so on, the testator uses these words, My children to be educated and settled in business according to my wife's discretion." Now, it has been decided by the Court of Chancery that where there is a devise of lands, without words of limitation, and the devisee would incur any burthen by accepting the estate, the devisee must be presumed to have meant to convey the inheritance; for otherwise the devisee might be a loser. If the devisee were very old, and his life worth only a few years' purchase, the amount of the burthen might be equal to the value of his life, and there would be strong ground for concluding that the testator intended that the devisee should have an interest in the estate for a term larger than his life. On the other hand, if the devisee were young, and his life worth many years' purchase, and the only charge was a small annuity to a servant, there would not be the same ground for such a conclusion. If we are to ascertain whether the inheritance was conveyed, according to the magnitude of the estate, and the burthen placed upon it, there must always be some uncertainty. It has therefore been laid down, that the magnitude of the estate is not to be taken into account; and in Mr. Jarman's work On Wills, vol. 2, p. 220, it is said, "It has long been settled that where a devisee whose estate is undefined is directed to pay the testator's debts or legacies, or a specific sum in gross, he takes an estate in fee, on the ground that if he took an estate for life only he might be damnified by the determination of his interest before reimbursement of his expenditure; and the fact that actual loss is considered highly improbable, by the disparity of the amount of the sum charged relatively to the value of the land, does not prevent the enlargement of the estate." The question then arises in the present case, do the words relating to the education of the children cast a burthen on the widow if she accepts the devise, and will she be under an obligation to educate the children, and settle them in business according to her discretion? It may well be that this is a burthen which the Court of Chancery would compel her to undertake; not controlling her discretion, but looking upon it as a fiduciary discretion, so that she should not give away the property, but must bona fide apply it in satisfaction of the charge imposed on her. If that were so, the burthen of educating the children, putting them to some business, paying the premiums and other expenses, would be a considerable one. Now, the cases in the Court of Chancery leave me in considerable doubt as to whether this direction would in the present case be treated as an obligation and enforced. Whether it does amount to such an obligation, or is a mere expression of a wish on the part of the testator, without depriving the devisee of the power of obeying or disregarding it, must depend upon an examination of cases in Chancery; and I should give my decision with much diffidence and doubt as to whether it would be approved of by a Court of equity. It seems to me, however, most unlikely that the testator could have meant that his wife should have the estate clogged with a burthen; but if such a burthen were to fall upon it, he would be more likely to wish that the devisee should have the fee,