pasture-land, and orchards. Edward Clarke, the testator in this case, devised in the words: "I give and devise to Elizabeth Whalley, all that my capital mansion-house, wherein I now live, and the lands and grounds thereto belonging, and therewith held and enjoyed, with the appurtenances; and also all that my manor or lordship of Chipley, and all other my manors or lordships, messuages, farms, land, tenements, hereditaments, and premises, whereof I have a disposing power; to hold the same to the said Elizabeth Whalley, for and during the term of her natural life; and after her decease, I give and devise my said capital mansion-house, &c., to John Nurton, his heirs and assigns for ever. And it is my express will and desire, and I do hereby direct, that the said John Nurton shall hold and enjoy my said capital mansion-house, with the appurtenances, for the space of one year next after my death." The testator, for many years previous to, and at his death, occupied all the land (the subject of the ejectment) with his capital mansion-house, and the gardens and pleasure-grounds of Chipley. It became a question, whether this land, or any of it, passed to John Nurton, by the clause in the will, which directs that he is to have the mansion-house, with the appurtenances, for a year after the testator's death; and all the Court determined, that, [ *128 ] *excepting the orchards, it did not pass. By the Chief Justice Eyre, it was said: "I have no doubt upon the case, unless it be with respect to the orchards. Lands will not pass under the word appurtenances taken in its strict technical sense: they will pass, if it appears that a larger sense was intended to be given to it. Every testator ought to be supposed to take legal words in a legal sense, unless, according to the marginal note to the case in Hobart, (b) there be demonstration plain of an intent to use them in a different sense. In the former part of the will, there is a devise of a house with lands, in terms express, to which is added," with the appurtenances," in order to comprise all which might not fall within the description. Then follows a declaration, that the defendant shall have, for one year, something which was included in the above devise. The testator must be supposed to have understood what he was talking about. If he had intended to have given the whole, the words were before him, and he ought to have used them. Suppose there had been nothing stated to let us into the intention of the testator, but the mere devise to the defendant, we must have examined what was occupied by the testator; and if we had found a house situated in a park which had always been occupied with it, and was, as it were, an integral part of the thing, this might have proved the intention of the testator to pass the whole together. There, if nothing to the contrary had appeared, we might have supposed the testator to have used the word appurtenances in a sense different from its technical sense: but this is not that case. It is true that the premises were occupied for a considerable time together with the house; but, first, the whole of the premises are not necessarily connected; in the next place, there is here solid ground to argue, that the testator understood the meaning of the *words employed in [*129] the devise, having sometimes used the word lands as a part of the description, and sometimes dropt it. The defendant being the testator's executor, and having been his steward, affords a fair ground of argument. The testator gave him the exclusive enjoyment of the mansion-house, with the appurtenances,' for one year only, after having de(b) 33. vised the mansion-house and lands also with the appurtenances,' to Mrs. E. Whalley, for her life, with remainder to the defendant. Now with what view was this done? Most probably for the convenience of the defendant in the execution of the duty imposed on him. The general intent, therefore, as collected from the devise, and the relation in which the devisee stood to the testator, does not call upon us to go beyond the strict rule in construing the technical word appurtenances."(c) In Doe v. Martin, Richard Tonson was seised of a messuage called Passars, with a parcel of land thereto belonging, being copyhold of inheritance, under the manor of Fulham, in Middlesex, in his own occupation. Matthew Ramsey was seised of several other copyhold messuages and gardens, adjoining in part to Passars; and by indenture of 10th July, 1762, demised to Tonson a messuage and two acres of garden, adjoining to Passars, for 21 years. Ramsey devised all his copyhold estates to his wife, Juliana Ramsey, for life. On 18th October, 1762, Juliana Ramsey, the widow, demised to Tonson several cottages, part of the said copyhold estates, for 99 years, if she so long lived. Tonson, on taking the lease of the 10th July, 1762, laid the greater part of the garden thereby demised into his own premises, called Passars, and let the rest, together with the messuage, to Elizabeth Bibby. He also pulled down the cottages *demised by Juliana Ramsey, and laid the scite of them into his own court-yard. In [*130 ] 1767, Tonson devised to Catherine Whitburn, and her heirs, "all that his copyhold messuage, with all out-houses, gardens, and appurtenances to the same belonging, situate and being at Fulham, in the county of Middlesex, and then in his possession.' "What," inquired the counsel for the plaintiff "is devised? 1. Not the premises let to Bibby, for the testator devises only one messuage, and restricts his devise to what was then in his possession. 2. Not the scite of the four messuages, for that cannot pass as appurtenant to an estate held by another title, although it had been used with it; Yates v. Clincard, Cro. Eliz., 704; Archer v. Bennett, 1 Lev. 131." "The consideration," said the Chief Justice De Grey, "is, what the testator meant to devise; for that is the rule of construing a will. The case in Cro. Eliz. is only that a copyhold cannot be appurtenant to a freehold. And here both are of a copyhold tenure, although held for a different term. And that in Levinz says only, that occupying one thing together with another shall not make it legally appurtenant. That also is the case of a deed, and not of a will. And even there it was held, that, if necessary for the use of the principal, the thing so occupied shall become appurtenant. And sure a court-yard is necessary for the use of a house. The testator's plain meaning was, to unite, as far as he could, the scite of the cottages to his house, and devise all that he so personally occupied; and, therefore, he meant to devise the scite of the four cottages as appurtenant to his house, but not the messuage and lands which he had demised to Mrs. Bibby."(d) The point determined in this case seems to be, that land near to, and appropriated' to "inseparable use with a house, will, if not against [ *131 ] the intention, pass under the word appurtenances in a will, although the land and the house are held by different leases. Technically, the word appurtenant seems to be a term of various application. The meaning of it, in a particular case, appears to be deter (c) 1 Bos. & P. 53. (d) 2 Sir W. Bl. Rep. 1148. mined by the description of principal to which it belongs. Buck v. Nurton does not decide that a park may not be an appurtenant of the capital mansion-house of a manor; it only decides, that in the particular case, by the intention, it was not. It seems, indeed, to be distinctly stated by the Chief Justice, that, if not against the intention, the word appurtenant will, technically, include a park, on the devise of a mansion-house situated in a park, the park being occupied with it. On the devise of a house with the appurtenances, the word appurtenances appears technically to include outbuildings of any kind, a yard, curtilage, (e) garden, and orchard;(ƒ) and it may be added, perhaps, any description of property near to the house, and made to be inseparably used with it. The meaning of the word appurtenances, like every other word in a will, depends, indisputably, in all cases, on the intention. The term has, it is to be admitted, a technical signification; but, clearly, it may be used in an untechnical sense; and if a testator explains his own meaning of it, on the universal principle of intention, that meaning will determine the effect of the devise. This is, besides, a plain inference from the words in Hearn v. Allen: "By the bare words' with the appurtenances,' without other circumstances to declare the testator's intent, lands shall [ 132 ] never pass."(g) And in Buck v. Nurton, *the Chief Justice stated in terms: "Lands will not pass under the word appurtenances, taken in its strict technical sense; they will pass, if it appears that a larger sense was intended to be given to it."(h) In Blackburn v. Edgley, it was objected on the particular devise, "that although the house at Clapham passed to the mother for her life, if she would live there, yet only the house and curtilage would pass, and not the land employed for the producing hay and corn, &c." But, by the Court: It is true that by the grant or devise of a house, with the appurtenances, only the garden and orchard will pass with the house; but the devise of a house, with the lands appertaining, will pass land. Now the intention of the testator was, that after his death, during the life of his kinswoman, Ann Edgley, every thing should be carried on and transacted as it was in his life-time, and this to such a nicety, as that the same number of servants, and even of coach-horses, was to be employed, the same hospitality observed, the same horses used in ploughing the lands; which could not be, unless the lands were to continue as before to be enjoyed with the house. Wherefore, as it seems to have been his intention not to part them, let those lands which were before constantly enjoyed with the house, and the profits whereof were applied to the maintenance of the house, continue to be so enjoyed."(i) If a person devises simply in the words, I devise my messuage to A.; the appurtenances of it, although not named, will impliedly pass by the devise. A person was seised of a messuage, to which a garden and curtilage belonged, joined together and enclosed with a wall, and there was no way to the garden but through the messuage. He devised the messuage, but did not mention the garden or curtilage, nor [ *133 ] say with the appurtenances. It became a question if the (e) See Spelman, Gloss. v. Curtilagium. (f) 1 P. W. 603. (g) Cro. Car. 58. (h) 1 Bos. & P. 57. (i) 1 P. W. 600, 602. See also Ongley v. Chambers, 1 Bingh. 483. garden and curtilage passed; and it was adjudged that they did pass; for it was agreed clearly, that a curtilage is a parcel of a house; and, like a stable or dove-house, will pass in the case of a feoffment without saying with the appurtenances. The Court doubted of the garden, because it is but a place of pleasure; but it was afterwards resolved that the garden. also passed, for it is as well for necessity as pleasure. (j) There appears formerly to have been a distinction, in respect to appurtenances, between the words messuage and house; the latter being considered not to include all the appurtenances implied in the word messuage.(k) The modern case, however, of Doe v. Collins, seems to have exploded the distinction. It is there held, that on a devise simply of a house, the appurtenances of it impliedly pass with it.() "The distinction between house and messuage," said Mr. Justice Ashhurst, "seems too subtle to be relied on at this time; for I think that whatever would pass by the one, would equally pass by the other."(m) SECTION X. OF THE DESCRIPTION OF THE LAND DEVISED. Ir land devised is in part correctly, and in part incorrectly described, it should seem the exposition of the will is made simply on the correct description, and the misdescription remains ineffective. A person devised in the words: "I devise the house or tenement wherein William Nicholls dwelleth, called the *White Swan, in Old Street, to Henry Gallant, my daughter's son, for [ "134 ] ever." William Nicholls occupied only three upper rooms of the house, and other persons occupied the remainder; yet it was determined that the whole house passed by the devise.(0) Peter Blague, being seised in fee of two houses in Andover, the one a corner-house, in the tenancy of Binson and Nott, the other adjoining in the tenancy of Hitchcock, devised his house "called the corner-house, in Andover, in the tenure of Binson and Hitchcock," to J. S., in fee. On the misdescription in this will it was determined, that the corner-house passed by the devise, but not the house adjoining in the tenancy of Hitchcock; "for although the corner-house was not in the tenure of Hitchcock, but a misprision, yet the devise is good, for it is sufficiently ascertained before, namely, the corner-house in Andover. And the addition, in the tenure of Hitchcock, although it be not in his tenure, and is a mistake, yet it is but surplusage; and, although false, shall not vitiate the devise, because the devise was of a thing certain at the first, and shall be expounded according as the intent of the parties is apparent."(p) A person devised as follows: "I give to Katherine, my wife, all the profits of my houses and lands, lying and being in the parish of Billing and L., at a certain street there, called Broke-street." The devise was held to be good, although there was no village or hamlet in the county called Billing. The land supposed to be devised lay in Byrling-street. (9) On a devise in the words, "I devise to J. S. all those my lands in Bramstead, in the county of Surrey, in the possession of John Ashley;" it appeared the testator had not any lands in Surrey, but he had lands in Bramstead, in [135] *Hampshire, in the possession of John Ashley. And in an ejectment brought by the heir of the testator, for these lands in Hampshire, against the devisee, it was ruled by Holt, Chief Justice, that the lands in Hampshire would pass by this devise. (r) A person devised: "I give and devise to my dear wife my farm at Bovington in the tenure of John Smith." A part of the farm consisted of six acres of woodland, which the testator kept in his own hands, and were not in the possession of John Smith. It was held that the whole farm, including the woodland, passed by the devise. It is manifestly intended,' said Lord Mansfield, that the whole farm should pass by this will; and the testator never thought of any restriction of his devise, but meant these words, in the tenure of J. S.' only as an additional and fuller description of a thing sufficiently ascertained before.'(s) Thomas Bromley devised in the words: "I devise to J. Brittain and J. Marshall, their heirs and assigns, all that my messuage, dwelling-house, or tenement, with all lands, hereditaments, and appurtenances thereto belonging, situate and being in Blythbury, in the parish of Mavesyn Ridware, in the county of Stafford, now in the occupation of Thomas Willett, (except one meadow, called Floodgate Meadow, containing by estimation two acres, or thereabouts,) in trust," &c. Mavesyn Ridware is a parish containing three distinct townships, viz., Blythbury, Hill Ridware, and Mavesyn Ridware. At the time when the testator made his will, and also at the time of his death, his property in Blythbury consisted of a messuage and about 19 acres of land. The messuage, and rather more than two acres of land, were in the occupation of Thomas Willett. The remainder of the property in Blythbury was occupied partly by the testator himself, and partly by other persons. Thomas Willett never occupied [*136] the Floodgate Meadow. The devise was held not to be confined to the messuage and land in the occupation of Thomas Willett, but extended to all the lands in Blythbury, excepting the Floodgate Meadow. "I think," said Mr. Justice Bayley, "it was the testator's intention, by the devise of his messuage, with all lands, hereditaments, and appurtenances thereto belonging, situate in Blythbury, to give all that he had there under one title, excepting the Floodgate Meadow, which he particularly excepted; and then the question is, whether the words now in the occupation of Thomas Willett,' will restrain the other description. But if they were so construed, the exception would be altogether nugatory; and, therefore, that exception shews that he meant to pass something more than what was in Thomas Willett's occupation."() Goodtitle v. Southern, was an ejectment for two closes of land in the parish of Darley, in the county of Derby. It arose on the following devise, in the will of Richard Southern: "I give and devise all that my farm, lands, and hereditaments, called Trogues-farm, situate (q) Pacy v. Knollis, 1 Brownl. & Gold. 131. (r) Hastead v. Searle, 1 Ld. Raym. 728. (s) Goodtitle v. Paul, 2 Burr. 1089. |