pretty hard to say, that, in any case, where one devises all the rest and residue of his real estate, the heir should be enabled to claim any thing out of it; and how can he claim or take these intermediate profits? He must claim them as part of the real estate undisposed of. As to the surplus interest and profits of the personal estate, they are admitted to pass; and both real and personal being comprised in the same clause is a strong argument against a resulting trust to the heir at law. On the whole, I am of opinion that these surplus rents must be received by the trustees, accumulated, and laid up."(h) In Glanvill v. Glanvill, a testator, after making a provision for the maintenance of his son Thomas William, and of his daughter Emily, gave the residue of his property in the following words: "And as to all the rest, residue, and remainder of my estate and effects, as well real as personal, or of what other nature or kind soever, I give and devise the same unto and to the use of my son Thomas William Glanvill, according to the nature of the same estates respectively, and to be a vested interest upon his attaining the age of 21; provided, that in case my said son shall happen to die before attaining the said age of 21, then all the rest and residue of my said real and personal estate, so given and devised unto him, shall go and belong to my daughter Emily Glanvill." On this devise, the rents and profits of the real estate were decreed to be accumulated until the devisee, Thomas William Glanvill (who was also the testator's heir at law,) [ *248 ] should attain 21; or, until his death, which should first happen. (i) In Genery v. Fitzgerald, a testator, after subjecting his real and personal estate to the payment of his debts, legacies, and annuities, and making provision for the maintenance of his reputed children, Edward, Thomas and William Fitzgerald, during their minorities, proceeded thus: "All the rest, residue, and remainder of my estate, real, personal, or mixed, or of what nature or kind soever the same may be or consist, and wheresoever situate, subject as aforesaid, I give, devise, and bequeath the same, and every part thereof, unto the eldest of my said three reputed children, who shall attain the age of 21, his heirs, executors, administrators and assigns for ever." The testator was seised of some real estates in the island of Jamaica (subject to a mortgage,) with the slaves, the cattle, and other stock upon them. The defendant, Thomas Fitzgerald, the brother and heir at law of the testator, claimed to be entitled to these premises, and to the rents and profits, subject to the mortgage, until one of the infant sons of the testator should attain the age of 21. A decree pronounced at the Rolls declared, that the defendant, Thomas Fitzgerald, was not entitled to the rents and profits during the minority of the infants; and, on appeal, Lord Eldon affirmed the decree. "I think," said his Lordship, "this decree is right. The general principles are these: When personal estate is given to A. at 21, that will carry the intermediate interest. If a testator gives his estate, Blackacre, at a future period, that will not carry the intermediate rents and profits. But when he mixes up real and personal estate in the same clause, the question must be, whether he does not show an intention, that the same rule shall operate on both. Here the property was partly real, partly personal, and partly of [ *249 ] such a description that the testator does not seem to have known whether it was real or personal. He does not by his will create any trust, but makes a legal devise and bequest of the whole together. (h) 1 Ves. 485. Amb. 93. (i) 2 Mer. 38. Then, is not the weight of authority in favour of the proposition, that when real and personal estate are given in this way, the intermediate profits of both must go together? I think it is, and the decree must, therefore, be affirmed."(j) In the following cases, intermediate rents of an estate, devised by an executory devise, have been held to pass under a residuary clause in the will.— In Stephens v. Stephens, a testator devised to his grandson, William Stephens, his heirs and assigns; and added, "but in case my grandson, William Stephens, shall happen to die before he attains his age of 21 years, then I give and bequeath to my grandson, Thomas Stephens, all, &c.; to hold to him, his heirs and assigns for ever. But in case my said grandson, Thomas Stephens, shall happen to die before he attains his age of 21 years, then I give and bequeath all, &c., to such other son of the body of my daughter, Mary Stephens, by my son-inlaw, Thomas Stephens, as shall happen to attain his age of 21 years, his heirs and assigns for ever:" and further added the residuary clause, "all the rest and residue of my estate, real and personal, whatsoever and wheresoever, not hereby before bequeathed, I give and bequeath to my said son, Thomas Stephens, his heirs, executors, administrators and assigns for ever." The two grandsons, William and Thomas Stephens, died after the testator, and under the age of 21. It was first determined, that the limitation on the devise to Thomas Stephens, the grandson, was a good executory devise. With respect to the intermediate rents and profits of the land, the certificate of the court of King's [ *250 ] Bench, to whom the case had been referred, states, "As to the profits of the estate received since the death of William, the grandson, or to be received until it shall vest in any one person by force of the said executory devise, or shall go over to the remainder-man, we conceive that they belong to Sir Thomas Stephens, by virtue of the residuary devise in the will, as an interest in the testator's real estate, not before bequeathed or disposed of by his will." The Lord Chancellor Talbot decreed accordingly.(k) In Gale v. Gale, Joan Proctor being seised in fee of customary lands in two separate manors, surrendered them (according to the customs) into the hands of the lord of each, to the use of her nephew, Henry Proctor Gale, and his heirs, in trust to perform her will. She afterwards devised to her nephew, Henry Proctor Gale, and his assigns, for and during the term of his natural life; and from and after his decease, to the eldest son of her said nephew, that should live to attain the age of 21 years, his heirs and assigns for ever; and in case the said Henry Proctor Gale should happen to die without any issue male, that should live to attain the age of 21 years; then she devised the same premises to Ann Gale (sister of her said nephew,) and to Hannah and Ann Gale (daughters of Roger Gale,) and to their heirs for ever. after giving several specific and pecuniary legacies, the testatrix gave all the rest and residue of her goods, chattels, estates, and effects, to her said nephew Henry Proctor Gale, Ann Gale, his sister, and Hannah and Ann Gale. Henry Proctor Gale died after the testatrix, leaving Henry Proctor Gale, his eldest son, an infant under the age of 21 years, but who afterwards attained 21. On a bill filed in the court of Exchequer, on the title to the intermediate rents and profits between the death of (j) Jacob Rep. 468. (k) Cas. temp. Talb. 228. Se 1 Ves. 491. And Henry Proctor Gale, and his son's "attaining the age of 21, it was said by the Lord Chief Baron (who delivered the [ *251 ] judgment of the Court;) "This estate, which supports the contingent remainders, being in the trustees merely as channels and instruments of conveyance, the trust of the intermediate rents and profits, which accrued between the death of the tenant for life, and the time when some other person became entitled under the limitations of the will, must result somewhere, and, unless disposed of by the will, must go to the heir at law. In this case, there is a general sweeping residuary clause, giving all the testator's goods, chattels, estates, and effects, to Henry Proctor Gale, Ann Gale, the sister, and Hannah and Ann Gale. can scarcely imagine that the testatrix had this event in contemplation, or could mean to include these intermediate rents and profits in the residuary bequest, because they could not arise until after the death of Henry Proctor Gale, one of the residuary legatees; but still if she has used such large words in the will, as will comprehend these rents and profits, this interest must pass with the residue. On the whole of the case, therefore, I think the intermediate rents and profits passed by the residuary clause."(l) One [ *252 ] If a termor for years devises his term on a contingency, it appears that the rents and profits of the land, from the death of the testator, belong to, and are to be accumulated for the benefit of, the person who, under the contingent limitation, first acquires an estate in the land; unless, by the will they are, in the meantime, otherwise disposed of.(m) *In Bullock v. Stones, a testator devised in the words: "I do leave all my real and personal estate at Ashgate, in trust to A., B., C.; my desire is, that all my debts and funeral charges be paid, and such legacies as I shall after mention." Then, after certain directions and legacies, he added, "My will and desire is, that the first son of John Stones, when he comes to 21, shall have all my estate, real and personal, at Ashgate." By Lord Hardwicke:-" The personal estate passes by this will to the trustees, first, for payment of debts; but the whole surplus of that will belong to the son of John Stones, when that son attains 21; which is a reasonable compass of time for such a bequest to take place; and, until then, the profits of that personal estate will accumulate."(n) In Studholme v. Hodgson, a person, by his will, gave several leasehold houses in St. James's, to Mary Procter, for life, remainder to Michael Hodgson, son of Cuthbert and Mary Hodgson, if he lived to 21; otherwise to such other children as the said Mary Hodgson should have, equally; and, for want of such children, then to the said Mary, his mother, her executors, and administrators. And the testator gave all the rest of his personal estate to the said Michael Hodgson, his executors, administrators and assigns. Afterwards by a codicil, reciting the bequests of the houses and the residue, the testator declared, that in case Michael Hogdson should die before 21, and the said Mary, his mother, should die without any other children or child by the said Cuthbert Hodgson, then all the legacies and bequests of the said (1) 2 Cox. Rep. 136. (m) Bullock v. Stones, 2 Ves. 521. Studholme v. Hodgson, 3 P. W. 300. Green v. Ekins, 2 Atk. 473. Atkinson v. Turner, VOL. VIII.-3 D ibid, 41. Butler v. Butler, 3 Atk. 58. Tre- houses and premises should go, descend, and come to the testator's nephew, William Studholme, his heirs and assigns for ever. The infant son, Michael Hodgson, died within a few days of his age of 21. Mary Hodgson having no other child, William Studholme, the "de[*253] visee over, brought his bill for an account of the testator's personal estate, and to have the same secured and set apart, to the end that, in case the contingency of the death of Mary Hodgson without children should happen, he might receive the same; and that, in the meantime, the money arising from the rents and profits might be placed out on securities, in order to wait the event of the contingency. It was decreed, "The profits of the residue from the death of Michael [the rents of the houses from the death of Mary Procter, the tenant for life,] till the contingency happens, are to accumulate and be added to the capital; and, if no child of the defendant, Mary, by her husband Cuthbert, then to go to the plaintiff."(o) In Green v. Ekins, a testator devised all the residue of his personal estate to any son he should have by his wife at his age of 21; and, if no son, then to his daughter Frances, to be paid her at her age of 21, or marriage; but if it should happen, that his daughter Frances, should depart this life before 21, or marriage, and he should have no other daughter born of his wife, who should attain 21, or marry; then, and in such case, if his daughter, Elizabeth Burnaby, should have issue of her body one or more son or sons, he gave and bequeathed the residue of his personal estate to such son of his said daughter as should first attain the age of 21. The testator died soon after making the will, and, within half a year after his death, Frances, his daughter, died an infant; and the plaintiff being entitled, when of age, to the estate bequeathed, it became a question, whether the interest of the personal estate, from the death of Frances, the daughter, to the time it would vest in the plaintiff, or any other son of Mrs. Burnaby, must be accumulated, and wait on the contingency; or whether it was an interest undisposed of, and went to the next of kin of the testator. By Lord [ *254] Hardwicke: "During the life of Frances, the daughter, the profits vested in her, because the residue did so; as it was a legacy payable at a future time, and devested on the contingency. As to the rest of the profits which have accrued and will accrue till the devise to the son of Mrs. Burnaby vests, I am of opinion, that the interest and profits must be considered as a part of the residue, and must accumulate. The case of Studholme v. Hodgson is in point. I do accordingly decree the profits to accumulate.”(p) SECTION XXVI. OF A DEVISE TO USES. Ir cannot, it is apprehended, at the present day be doubted, that the Statute of Uses, 27 Hen. VIII., c. 10, does, and was intended by the legislature to, operate on limitations to uses in a will.(q) There is reason (0) 3 P. W. 300. (p) 2 Atk. 473. (9) See Sugd. Powers, 3rd edit. 134139. Sugd. Gilb. Uses, 3rd edit. 356, note2. perhaps to be surprised, that the point was ever considered to be questionable. The Statute of Wills, 32 Hen. VIII., c. 1, did not originate devises, but simply extended the right to devise, which right has been farther extended by the statute 12 Car. II., c. 24, which abolished tenure by knight-service. That the Statute of Uses operates on uses in a will appears conclusive from the circumstances, that, by particular custom, it was legal to devise before the Statute of Wills; that the preamble of the Statute of Uses in enumerating the usual conveyances to uses, mentions, by name, conveyances by will; and that the enacting part of the same statute includes, also by name, a seisin to uses by reason of a will. *On a conveyance, by deed or will, to uses, the design and effect of the Statute of Uses are, immediately on the con[ *255 ] veyance, to take from the trustee the seisin conveyed to him. The statute operates, if at all, immediately; and when it does, the estate of the trustee passes to and from him in the same instant. In indulgence to testators, the effect of the statute on a will depends on the intention of the person who makes it. A will is construed not to be affected by the statute, if the seisin conveyed is intended, for any purpose of trust, to remain in the devisee. (r) The seisin of a devisee in fee is, in particular, construed to be intended to remain in him, when the words of the devise import that the devisee is himself to receive the rents and profits of the estate, and to pay them over to a married woman, (s) or other(t) person for life. In these cases the cestuis que use are, in consequence, held to take an equitable estate only under the will. But it appears, if the words of the devise import simply that the cestui que use, a married woman or other person, is to be permitted to receive and take the rents and profits of the estate, the devise is construed not to create a trust; and the will being then left to the ordinary effect of the Statute of Uses, the cestui que use is, in consequence, held to take a legal estate under the will. (u) It not being legal to devise a fee on a fee:(v) if, on a devise to A. in fee, the Statute of Uses does not affect the devise, it follows that, A. retaining the legal estate in fee, if there is a farther [ *256 ] devise to B., the interest of B. cannot, during the continuance of the estate in fee of A., be a legal estate; (w) and, also, that B. cannot be entitled to a legal estate devised to him, excepting by way of executory devise. But if a person, seised in fee, devises to A., in trust; with a farther devise to B.; if, on the intention, the estate of A. is a chattel estate only, B. may take a legal estate in remainder under the devise.(x) It may here also be observed, that a limitation to a person and his heirs does not invariably in a will convey a fee-simple; it is frequently, on the intention, construed to convey an estate pur auter vie only; in which case, a limitation over may convey a legal estate. (y) (r) Gregory v. Henderson, 4 Taunt, 772. (s) Nevil v. Saunders, 1 Vern. 415. Harton v. Harton, 7 T. R. 652. Gregory v. Henderson, 4 Taunt. 772. Tenny v. Moody, 3 Bingh. 3. See also South v. Alleyne, 5 Mod. 101, 1 Salk. 228. (t) Silvester v. Wilson, 2 T. R. 444. Cooper v. Wyatt, 5 Madd. 482. (u) Broughton v. Langley, 2 Ld. Raym. 873. Doe ex dem. Leicester v. Biggs, 2 Taunt. 109. (v) Tilbury v. Barbut, 3 Atk. 617. (0) Bagshaw v. Spencer, 2 Atk. 570; 1 Ves. 142. Wright v. Pearson, Amb. 358; 1 Eden, 119. (x) Cordal's case, Cro. Eliz. 316. Warter v. Hutchinson, 1 Barn. & C. 721. (y) Jones v. Lord Say & Seal, 1 Eq. Abr. 383. (See 2 Atk. 578; 7 T. R. 654; 3 Bos. & P. 179.) Shapland v. Smith, 1 Bro. C. C. 75. Doe v. Simpson, 5 East, 162. Doe v. Barthrop, 5 Taunt. 382. Hawker v. Hawker, 3 Barn. & A. 537. Biscoe v. Perkins, 1 Ves. & B. 485, |