all my messuages, lands, tenements, and hereditaments, in St. Helen's, Auckland, and elsewhere in the county of Durham, and all other my real estate, to Sir Ralph Milbank and Hedworth, and to their executors and administrators, for 500 years [on various trusts;] and, after the determination of the said term I give all the premises to my wife for and during her natural life, without impeachment of waste." The copyholds were not surrendered to the use of the will, the testator having an equitable estate only in them, the legal estate being in trustees. By Lord Hardwicke: "I am of opinion the trust of these copyhold estates will pass without a surrender to the uses of the will. This being out of the case, the next question is, whether here is a sufficient indication of the testator's intention that the trustees should have the copyhold as well as the real [freehold] estate. As to this, the words of the will and the nature of the case must determine it. There is no dispute but the words are large enough to pass the copyhold lands. There cannot possibly be larger to pass any real interest a testator has in lands, than all other my real estate.' The words, then, being large enough, the next question is, whether it appears to be the intention of the testator they should pass. The real estate was originally the inheritance of the wife, consisting of part *freehold and part copyhold. Upon the marriage, the freehold lands were by settlement conveyed, by the fine of the husband and wife, to Sir Ralph Milbank and Hedworth, in trust for the husband and wife, during their joint lives, and the survivor, with remainder to the heirs of their two bodies, remainder in fee to the husband. Mr. Car and his wife likewise made a surrender of the copyhold lands to the same trustees, and for the same purposes, with the freehold lands. After this, the husband makes his will. What appears to be the intention? Why, as the wife had been so generous as to give the remainder in fee to him, he was willing to return the compliment to her. It cannot be presumed that the testator intended to sever the copyhold, which came at the same time with the freehold, and, therefore, this is a strong circumstance to indicate the testator's intention; and to construe it otherwise would be to dismember the estate, which could never be meant, when he devises to the same trustees as were under the settlement. The material circumstance here is, the intention of the testator to restore the estates to the wife, from whom they originally came; and, therefore, he could not mean to dismember and sever the copyhold estate from the freehold." His Lordship decreed the copyhold land passed to the trustees by the general words of the will.(b) [ *174 ] It farther appears, that a surrender of copyholds to the use of a will (for the statute of George III. does not invalidate a surrender,) is, at least in equity, admissible collateral evidence to prove that copyholds are meant by the testator to be included in the general devise in his will. In Tendril v. Smith, it is stated by Lord Hardwicke: "Where copyhold lands are surrendered to the use of a will; by a devise of lands generally, the copyhold will pass, notwithstanding *there are freeholds to answer such devise." (c) And, again, in Goodwyn v. Good- [ *175 ] wyn, where a testator devised all his messuages, lands, tenements, and hereditaments whatsoever, in Norfolk;" Lord Hardwicke was of opinion, "that the copyhold lands were comprised, from the intent to pass them; although there are several cases, that a devise in general words of all lands and tenements will not comprise copyhold lands, which are not surrendered to the use of the will, so as to show an intent to comprise them. And where the intention of the testator of raising portions or payments of debts may be answered by freehold lands, the court will not suppose he intended to pass the copyhold. And, although surrendered, yet if the words are not sufficient to take them in, they will not pass. But here they are sufficient, and the surrender effectuates that intent."(d) In Doe v. the Earl of Lucan, it is said by Lord Ellenborough: "In construing the devise in question, I shall proceed merely on the testator's intention, as I collect it from the face of the will; for I am afraid to look at any argument of intention to be derived from the surrender to the use of his will; although perhaps it may be proper to be regarded even in this Court, as it certainly would be in another court, but it is not necessary for me to give any opinion upon that point, for I profess to determine this case on the intention, as collected from the words of the will only."(e) On this passage it is observable, that it appears from many authorities, that, in general cases, if an intention is discovered in a will, (ƒ) collateral evidence, unless it tends to have no legal effect,(g) is admissible to explain it; that the evidence is *admissible at [ *176 ] law and in equity; that it appears, in equity, a surrender to the use of a will is, on a devise of land generally, evidence sufficient of an intention to include the copyholds; and that in Tendril v. Smith, and Goodwyn v. Goodwyn, the expressions of Lord Hardwicke are general, without distinction of courts. It remains to notice, that copyhold lands will pass by the same clause which devises the freehold lands of the testator, if the copyholds appear to be separately named by any word in the devise. In Doe v. the Earl of Lucan, they were held to pass principally under the word 'farms' in the devise.(h) SECTION XIV. OF A DEVISE WITHOUT WORDS OF INHERITANCE. THE technical effect of a limitation to A., without adding any words of inheritance, is to convey to A., a life-estate only. If, therefore, a person seised in fee, devises to A., without any words of inheritance, the legal effect of the devise is to convey to A. an estate for life only, unless there are farther words in the will which explain the intention to be, to give to the devisee a greater estate. (i) "Another distinction," said Lord Mans (i) Roe v. Blackett, Cowp. 235. Denn v. Gaskin, ibid, 657. Right v. Sidebotham, Dougl. 730. Roe v. Bolton, and Right_v. Russell, cited ibid, 732. Hay v. Earl of Coventry, 3 T. R. 83. Goodtitle v. Edmonds, 7 T. R. 635. Doe v. Allen, 8 T. R. 497. Foster v. Lord Romney, 11 East, 594. Denne v. Page, ibid, 603, note (b). Doe v. West field, in a case before him, after observing on prospective devises of lands of inheritance, "founded on the notion that a will affecting lands is merely a species of conveyance, and derived from the same source, is this: The law of England, in the conveyance of [ "177 ] real estates, requires words of limitation, in the donation or grant, to the creation of a fee. Without the word heirs, general or special, no man can create a fee at common law by conveyance. When wills, therefore, were introduced, and devises of real property began to prevail; being considered as a species of conveyance, they were to be governed by the same rule. Therefore, by analogy to that rule, in the construction of devises, if there be no words of limitation added, nor words of perpetuity annexed, which have been held tantamount, so as to denote the intention of the testator to convey the inheritance to the devisee, he can only take an estate for life. For instance, if a testator by his will says, I give my lands, or such and such lands, to A.; if no words of limitation are added, A. has only an estate for life.”(j) It frequently happens in a will, that two estates are separately devised to the same person; one with words of inheritance, and the other without them. In these cases, it appears, the devise of inheritance is not, by itself, evidence sufficient of an intention to devise both lands for an estate of inheritance. It is stated in Roll's Abridgment: "If a man devises in this manner; I devise Black Acre to my daughter F., and to the heirs of her body begotten. Item, I devise to my said daughter, White Acre; the daughter shall have but an estate for life in White Acre, for the word 'Item' does not amount to 'in the same manner.'-If a man devises Black Acre to one in tail and also White Acre; the devisee shall have an estate-tail in White Acre also, for this is all one sentence, and so the words which make the_limitation of the estate extend to both.”(k) In [ *178 ] Spirt *v. Bence, a testator devised in the words: "I give to my son Henry and his heirs freely my house in the borough of Wickwarr, in which I dwell. Item, I give to my said son Henry my house and lands in Impsteade. Item, I give to him two houses in Wickwarr, in the tenure of J. S. Item, I give to the said Henry my pastures, called the South Fields, and one meadow called Warhay, in Wickwarr (the land, in question.) Also, I will that all bargains, grants, and covenants, which I have from Nicholas Webb, my son Henry shall enjoy, and his heirs for ever; and, for lack of heirs of his body, to remain to my son Francis for ever." It was held" that Henry had but an estate for life in the land in question, and that the last clause, and for lack of heirs of his body,' shall extend only to the lands in that clause; viz., to the bargains and grants. And that when the testator gave to Henry in fee, and then to Henry only, not mentioning any estate, the law shall construe it that he shall have the lands but for life; and that the testator did not intend a greater estate; and for the word 'also,' it is no more than the word and,' and shall not extend to the quantity of the estate, but to the clause following." In Paice v. the Archbishop of Canterbury, a testatrix devised in the words: "I give and bequeath to the reverend Henry Tay ley, 4 Barn. & C. 667. Fawcett's case, 1 Roll. Abr. 834, 844. Roe v. Holmes, 2 Wils, 80. (j) Cowp. 306. lor, my farm and lands at Royston in Lincolnshire, to him, his heirs and assigns for ever, and I also give and bequeath to the said reverend Henry Taylor, my farm and manor of Eythorne Court, in the county of Kent." "The only question," said Lord Eldon, "on this devise is, whether the word also,' has precisely the same operation as the addition of the words 'his heirs and assigns for ever,' in the devise of the other estate immediately preceding. Upon reflection, although I believe the court of King's Bench has gone as far in the construction *of [ *179 ] the word also,' as Sir Arthur Piggott contended, it seems to me, that all the old rules against disinheriting an heir, except by plain words or necessary implication, are gone, if such a construction is to prevail. My opinion therefore is, that this devisee took an estate for life only in the farm and manor of Eythorne Court."(m) After devises of estates of inheritance, it sometimes happens that cross-remainders of the land are limited without words of inheritance. In these cases, unless there are farther words in the will to explain the intention to be different, the devisee takes an estate for life only in remainder. In Pettywood v. Cook, one Hawkins was seised in fee of three houses in Bury, and devised them to his wife for life, the remainder of one other of the messuages to Robert his son, and his heirs, the remainder of one other of the messuages to Christian, his daughter, and her heirs; and of the third messuage, to Joan, his daughter, and her heirs. And did further will that if any of them died without issue, that then the survivors should enjoy totam illam partem equally divided between them. All the Justices of the King's Bench held, " that, by the devise, only an estate for life is limited to the survivor; although the words are that the survivor shall enjoy totam illam partem; that is [for these words mean,] all the messuage, and not all the estate the party dying had in the messuage; for no estate being limited, it shall be intended but an estate for life."(n) In Woodward v. Glasbrook, a testator devised a house in Lime-street, to his sons James and Thomas, and the heirs of their bodies, in equal moities; and devised other houses to his other children in like manner; and then added, "but my will and mind is, that if any of my said children shall *die before 21, or unmarried, the part or [ *180 ] share of him or her so dying, shall go over to the survivors." On this will it was determined, "that, by the devise over, only an estate passed to the survivors for their lives."(o) SECTION XV. OF A DEVISE FOR LIFE, WITHOUT IMPEACHMENT OF WASTE. A COMMON devise is to a person for life, without impeachment of waste. Waste appears to be any injury illegally done to the estate, which depre (m) 14 Ves. 364. The argument of Sir A. Piggott is not reported. (n) Cro. Eliz. 52. Leon, 129, 193, S. C. (o) 2 Vern. 388. Hawkins' case, 2 ciates the value of the inheritance. To cut down timber, as an instance, is waste. To convert wood, meadow, or pasture into arable; to turn arable, meadow, or pasture into woodland; or to turn arable or woodland into meadow or pasture, are waste: for it not only changes the course of husbandry, but the evidence of the estate, when such a close, which is conveyed and described as pasture, is found to be arable, and e converso. And the same rule is observed, for the same reason, with regard to converting one species of edifice into another, even although it is improved in its value. To open the land to search for mines of metal, coal, &c., is waste; for that is a detriment to the inheritance; although, if the pits or mines were open before, it is not considered to be waste to continue to dig them, and the tenant is entitled to their produce, as an ordinary annual profit of the land. (p) The punishment of waste is the forfeiture of the place wasted, and treble damages. (q) He, then, who is tenant for life, "without impeachment of waste," is free of the liability to be sued for waste, and consequently of the punishment for it. But, farther, to be unimpeachable for waste, is not [ *181 ] merely the negative privilege of impunity; it is a license to commit waste.(r) In particular, a tenant for life, "without impeachment of waste," is entitled to cut down timber on the estate; and the moment it is cut down, it becomes his own property. (s) But although a tenant for life without impeachment of waste may legally commit many kinds of waste, he may be restrained by an injunction, out of the court of Chancery, from committing many other kinds of waste, which, in the consideration of the court, were not intended by the testator to be within the protection of the clause, " without impeachment of waste." In Vane v. Lord Barnard, the defendant was tenant for life without impeachment of waste, remainder to his son for life, and, having taken a displeasure against his son, got 200 workmen together, and began to pull down the family mansion, Raby Castle; but he was stopped by the Lord Chancellor Cowper, and decreed to repair it.(t) In Sir Herbert Packington's case, Lord Hardwicke granted an injunction to restrain the cutting down of timber in a park, the trees being an ornament and shelter to the mansion-house. (u) In Strathmore v. Bowes, the husband of a tenant for life, without impeachment of waste, was restrained from cutting down young saplins, not fit to cut as timber; and also from cutting down timber trees in pleasure plantations a mile distant from the house.(v) The principle of granting an injunction to prevent the cutting of trees applies to trees planted for the *ornament of the estate, as distinguished from the ornament of the [ *182 ] mansion-house, although they are distant, and even are not seen from the house; (w) and also to trees planted by a testator purposely for ornament, although, in point of taste, their effect is not ornamental; (x) and, farther, to trees planted for the purpose of excluding objects from view. (y) But it appears, the principle does not extend to a wood, covering thirty acres, (p) 2 Bl. C. 281, 282. (q) Ibid, 283. (r) Co. Litt. 220 a. (s) Lewis Bowles' case, 11 Co. 79 b. Pyne v. Dor, 1 T. R. 55. Williams v. Williams, 12 East, 206; 1 Ves. 265. 3 Bingh. 211. (t) 2 Vern. 738. (u) 3 Atk. 215. (x) Ibid, 110. Jacob Rep. 71. Lady San |