Shaw against Bull
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1796 |
| Date | 01 January 1796 |
| Court | High Court |
English Reports Citation: 88 E.R. 1541
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER
Referred to, Hamilton Corporation v. Hodsdon, 1847, 6 Mod. P. C. 84. Not applied, Murphy v. Donnelly, 1870, Ir. R. 4 Eq. 114.
case 981. shaw against bull. [Referred to, Hamilton Corporation v, Hodsdon, 1847, 6 Moo. P. C. 84. Not applied, Murphy v. Donnelly, 1870, Ir. R. 4 Eq. 114.] One seised of two houses devises one house to A. and her heirs, she paying his legacies, in case hia gooda and chattels were not sufficient; and if she did not make provision for the payment of them in her life-time, the legatee might sell the same : and all the overplus of my estate to be at A.'s disposal: and made her executrix. The second house doea not pass.-S. C. 2 Eq. Abr. 320. Salk. 234, 236. 6 Mod. 106. Making one executor, and giving the overplus of the estate, gives only the personal estate. One seised in fee of five messuages, by his will devised two of them to his wife for life, remainder to hia two daughters in fee ; and devised the third to the wife and her heirs; the fourth he devised to the wife and her [593] heirs, she paying his legacies, in case his gooda and chattela did not anawer them all; and if she did not make provision for the payment of his legacies in her life-time, that it should be lawful for the legatee, after her death, to sell the said messuage to satisfy the legacies out of the value thereof. And then follows this clause, on which the doubt arises, " and all the overplus of my estate to be at my wife's disposal, and make her my executrix." And the Court delivered their opinions seriatim thus : Bleiicowe, Justice. It appears he had five messuages, and devised four of them, and says nothing expressly, or at least particularly, of the fifth ; but the question is, whether there be words enough to shew his intent was to pass the fifth messuage to his wife; for if that appear to be his intent, it ought to go to her. If he at first had devised her " all his estate," this house would have passed to her; but compare this clause to the subsequent worda, "and make her my executrix," it shews his intent was to grant her such estate as she waa capable of as executrix, and that is only personal estate; so the sense would be, " And I give my wife all the overplus of my personal estate, and make her my executrix." If he had aaid, " I make my wife my executrix, and give her the overplus of my estate," that would only give her personal estate, or chattel; and will it not be the same thing to invert the sentence'! Again, to consider this clause as it atanda with the precedent words, there ia a devise of the fourth messuage to her and her heirs, paying his legacies, &e.; and if she does not provide for payment of them, that it shall be lawful for the legatee to sell it; and all the overplus, &c. which may very well be satisfied by making a devise of the overplus of the price of the house, when sold by herself or legatee ; for if she in her own life-time had sold the house, it would...
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