6 THOMAS In Shaw v. Bull (1), TREVOR, Ch. J. said, "In construction of POGSON wills generally, the words 'my estate,' the residue of my estate,' or the overplus of my estate,' may well pass an inheritance, where the intent is apparent to pass it; but such intent to carry an inheritance by such words must be very apparent, and necessary to be drawn from the words of the will and circumstances of the case. For if the words be indifferent to real and personal estate, or may be applied to personal estate alone, there the heir-at-law is not to be disinherited by the implication of such, or by any implication at all but what is a necessary one." In Hogan v. Jackson (2), the words of the residuary clause were "all effects, real and personal." In Bradford v. Belfield (3), the words were "testamentary estate," which includes real property; but in Tilley v. Simpson (4), Lord HARDWICKE said, "The Court hath restrained the word 'estate' to carry personal estate only, where it hath appeared that it was the intention of the testator it should be so understood; as where it hath stood coupled with particular descriptions of part of the personal estate, as a bequest of all my mortgages, household goods, and estate, in which the preceding words are not a full description. of the personal estate." Woollam v. Kenworthy (5) is much like the present case; and Doe d. Spearing v. Buckner (6), is decisive on the point in favour of the defendants. See also Doe d. Hurrell v. Hurrell (7), Doe d. Hick v. Dring (8), Newland v. Majoribanks (9), and Doe d. Bunny v. Rout (10). Coote, in reply: In the cases cited for the defendants on the first point, there was an attempt to make out the devise by evidence dehors the will; but here the words "Kesgrave aforesaid," can only refer to the estate at Kesgrave house. As to the residuary clause, in the cases cited for the defendants the reference to personal property was direct; not, as here, by way of inference only. The words "heirs" and executors" must be taken to mean representatives, according to the nature of the estate; and the real question here as to the residuary clause is, whether or not the testatrix meant to die intestate as to any portion of her property. The following Certificate was sent in Trinity Term: "We have (1) 12 Mod. 592. (2) Cowp. 304. (3) 29 R. R. 100 (2 Sim. 264). (4) 1 R. R. 577, n. (2 T. R. 659, n.). (5) 9 Ves. 137. (6) 3 R. R. 278 (6 T. R. 610). (10) 17 R. R. 448 (7 Taunt. 79). [ *344 ] R.R. -VOL. LIV. 52 POGSON v. THOMAS. [ *345 ] 1840. [ 358 ] heard this case argued, in the absence of the Lord Chief Justice upon the special commission at Monmouth, and of Mr. Justice Coltman, who was engaged at Nisi Prius: we have considered it; and we are of opinion that the lands in the parish of Little Bealings and Playford, in the pleadings in this cause mentioned, and which are stated to be parishes distinct * from, but adjoining to, the parish of Kesgrave, did not pass by the will of Emily Pogson the testatrix therein mentioned. "J. B. BOSANQUET. "T. ERSKINE. "W. H. MAULE." DEVAUX AND ANOTHER v. STEELE (1). (6 Bing. N. C. 358-372; S. C. 8 Scott, 637.) A French law provides that "the vessel which shall have fished, either in the Pacific by doubling Cape Horn, or by passing through the Straits of Magellan, or to the south of Cape Horn, at 62 degrees of latitude at the least, shall obtain on its return a supplemental bounty, if it brings back in the produce of its fishery one half at least of its burthen, or if it can prove a navigation of sixteen months at least: Held, that a vessel which had caught fish to the amount of half its burthen in the Atlantic, then doubled Cape Horn and fished without success, and was lost within sixteen months after setting sail, had not complied with the conditions of the law, so as to be entitled to the bounty: Held also, that the practice of the French Government to allow the bounty under such circumstances was a mere matter of expectation, and did not constitute a vested interest which could be the subject of insurance. THIS was an action brought upon a policy of assurance which stated the insurance to be made to the amount of 8001. " on bounty allowed by the French Government on the tonnage of the ship Le Henri, agreed to be valued at 8001." The declaration alleged that the said bounty would have been allowed by the French Government upon the tonnage of the ship, if the said ship with the cargo on board had arrived in France; it then alleged a total loss by the perils of the sea. The fourth plea, upon which the whole of the question between the parties arose, alleged that the bounty which was the subject-matter of the insurance was a bounty allowed by the French Government under a certain written law of France relating to the whale fishery, which being translated, is as follows: "The vessel which shall have fished either in the Pacific Ocean, by doubling Cape Horn, or by passing through the Straits of Magellan, or to the south of Cape Horn at sixty-two degrees of latitude at the (1) As to naval prize money, see now the Naval Prize Act, 1864 (27 & 28 Vict. c. 25), sects. 44, 55.-R. C. 66 STEELE. least, shall obtain on its return a supplemental bounty, if it brings DEVAUX back, in the produce of its fishery, one half at least of its burthen; or if it can prove a navigation of sixteen months at least:" And the plea, after stating the course of the fishing voyage made by the ship, concluded with a traverse, without this that the bounty in the policy mentioned would have been allowed by the said French Government on the tonnage *of the said ship, if the said ship with the said cargo on board had arrived in France, as in the declaration is alleged:" upon which traverse issue was joined. By a special case, it appeared that the plaintiffs were insurance brokers in London, and were the agents of the firm of Messrs. Jacques François, frères, French merchants at Nantes, who at the time of effecting the policy, and at the time of the loss, were the owners of the French ship Le Henri. On the 28th of October, 1835, the defendant subscribed the policy of insurance for the sum of 400l. The bounty referred to in the said policy, was the bounty allowed by the French Government to encourage the whale fishery. On the subject of that bounty the following law of the 22nd of April, 1832, and royal ordinance of the 26th April, 1833, were in force at the time of the insurance and loss, as set forth in the following translated extracts of such parts as have been deemed material to the present question. 66 'Article 1. The bounty granted to the fitting out of vessels for the whale fisheries, whether it be in the North Seas or in the Southern Ocean, shall be 70 francs per measurement ton, when the ships' companies shall without exception consist of Frenchmen. "Article 2. The vessel which shall have been fishing, whether in the Pacific Ocean, either by doubling Cape Horn, or by passing through the Straits of Magellan, or to the southward of Cape Horn at sixty-two degrees of latitude at the least, shall obtain on her return a supplemental bounty, provided she shall bring home in the produce of her fishing one half at least of the burthen; or it shall be proved that her navigation voyage has occupied sixteen months at the least. "Article 3. The supplemental bounty shall be reduced *one half for such vessels as shall have fished to the eastward of the Cape of Good Hope, at forty-five degrees at least of longitude from the meridian of Paris, and at forty-eight to fifty degrees of south latitude. "Article 4. In order to have a right to the bounty, the crews of vessels which shall be composed partly of Frenchmen and partly of [ *359 ] [ *360 ] foreigners, shall consist of not more than one third of foreigners, being officers, harpooners or masters of boats. "Article 7. Royal ordinances shall determine the nature of the applications which shall be required of the owners previous to paying the outward bounty, and the proofs to be furnished showing that the voyage has been accomplished." Decree of the King relative to the Bounties of the Whale Fishery 26th of April, 1833. "On returning from the fishery, every captain of a whaling vessel shall present himself before the Commissary of Marine of the port to which he returns, to declare the name and tonnage of the vessel, the port at which she was fitted out, the name of the owner, the date of his departure from France, the places where he effected his fishing, the duration and circumstances of his voyage, the date of his return, and the nature and net weight of the produce of his fishing. The Commissary of Marine, after having interrogated and heard collectively and separately the men composing the crew, to assure himself by their declarations compared with the ship's journals, and the report made by the captain, whether the destination of the expedition has been fulfilled, shall state at the foot of the declaration of the captain, the result of such examination. Independently of this declaration, the captain shall make application to the administration of the customs for the survey and immediate verification of the description and weight of the produce of the fishery forming his cargo. The result of this operation shall be noted in a procès verbal, of which shall be transmitted direct to our Minister of Commerce and Public Works, an authentic official copy, at the foot of which the administration of customs shall state whether the vessel has fulfilled the obligations of bringing home in the proceeds of her fishing at the least one half of her burthen. (Form No. 6.) The liquidation of bounties paid by articles 1, 2 and 3 of the law before recited, shall be subject to approval by our Minister of Commerce and Public Works on the transmission to him in due form of the under-mentioned documents-that is to say-(among others): Form No. 5. Whale Fishery. Declaration of Return. Marine, Port of Commissary of Marine of this port, I, the undercaptain of the French whaling vessel the v. STEELE declare that I came into this after having been engaged which sailed from France the having 'We Commissary of Marine at the port of interrogated and heard the men composing the crew of the ship -, and having compared their declarations with that of the captain, and with his ship's journal, consider that the said expedition has fulfilled all the conditions stipulated in the recognizance of the owner, conformable to the law of the 22nd of April, 1832, and the royal decree of the 26th of April, 1833.' Form 6. Whale Fishery. 6 We, the undersigned Procès Verbal of Verification of Cargo. of the customs of this port, upon the tons, fitted out at -, by demand of M. -, captain of the whaling vessel the The said ship, manned with French seamen, sailed from Nantes, a port in France, on the 28th of February, 1835, for the South Sea whale fishery, all the conditions required by the law and ordinance above set out to be fulfilled previously to sailing, having been fulfilled before and at the time of setting sail. The vessel fished, and caught twenty-one whales between the beginning of June and end of October, 1835. Six of those whales [ *362 ] |