the plaintiff her only son and heir at law; and the writ in this action was issued on the 24th of November, 1864.

The question for the opinion of the Court is, whether, under the will, Joseph Manning, the father of the plaintiff took an estate in fee or an estate for life in the fourth part of Castle Hayes. If the Court shall be of opinion that he took the estate in fee, judgment shall be entered for the plaintiff. If the Court shall be of opinion that he took an estate for life, judgment shall be entered for the defendant.

an

Joshua Williams (Anstie with him), for the plaintiff.— This devise carries the fee simple. Although before the Wills Act, 7 Wm. 4 & 1 Vict. c. 26, s. 28, a devise of real estate without words of limitation gave the devisee an estate for life only, yet a devise of an undivided moiety of land, of which the testator was seised in fee, was held to pass the fee. [Martin, B.-In Jarman on Wills, vol. 2, p. 264, 3rd ed., it is said that it was at one time a question whether, under a devise by a testator of his "moiety," "part" or "share" the devisee would take an estate in fee, but it seems now settled that he will."] A gift of “ undivided quarter" is a gift of the fee simple in that quarter. In Bebb v. Penoyre (a) Lord Ellenborough, C. J., was disposed to think that the words "my half part" were sufficient to carry the fee; but it was unnecessary to decide the point. That case was followed by Paris v. Miller (b), where it was held that the words "my share" passed the fee, inasmuch as they were used as denoting the interest of the testator. That decision was recognised and adopted, in Montgomery v. Montgomery (c), by Sir E. Sugden, C., who held that under a devise of the testator's "part" of the (b) 5 M. & Sel. 408. (c) 3 Jones & Lat. (Irish) 47.

(a) 11 East, 160.

lands the fee passed. In Doe d. Atkinson v. Fawcett (a)
the Court of Common Pleas held that a devise of “ my
moiety" of a house carried the fee, on the ground that the
words "my moiety" imported the interest which the testator
had in the house, and not merely that he had no more
than half of a house. [Martin, B.-It seems a strange rule
of construction, that where a testator is the owner of the
whole estate, and devises it without words of limitation, an
estate for life only should pass, but where he is the owner
of a moiety only, and devises that moiety, the devisee
should take an estate in fee. Probably the Courts consi-
dered themselves bound by the rule that a gift of land
simply gives an estate for life only, and were desirous of
relaxing it.] The distinction, however, is well settled, and
was acted upon in Green v. Marsden (b) by Kindersley, V.C.,
who held that a devise of "the five shares of the freehold
and leasehold messuages or tenements" which belonged to
the testator passed the fee. If this devise had been "my
undivided four parts," &c., there could have been no ques-
tion, and it makes no difference that the words are my
undivided quarters." The circumstance that the testator
has elsewhere, in express terms, given the fee, does not alter
the case.
Where the word "estate" in a will is sufficient
to confer the inheritance, its operation is not restrained by
express words of limitation in another part of the will:
Ibbetson v. Beckwith (c), Uthwatt v. Bryant (d), Jarman on
Wills, vol. 2, p. 257, 3rd ed.

66

Mellish (Lopez with him), for the defendant.-If there had been a simple devise of an simple devise of an "undivided quarter" it might have passed the fee; but the circumstances that the rent is to be received during the minority of the devisee

(a) 3 C. B 274.

(b) 1 Drewry, 646.

(c) Cas. temp. Talbot, 157.
(d) 6 Taunt. 317.

1866.

MANNING

v.

TAYLOR.

by his father and afterwards by himself shews that the tes-
tator intended to give a life estate only. There is no provi-
sion for the receipt of rent after the death of the devisee.
[Martin, B.-The testator seems to have thought that he
had an estate in the rent distinct from the estate in the land.]
Being possessed of a moiety of the land he has used the word
quarter," not to describe his interest in the land, but to limit
the devise to one quarter.
Whenever the testator intended
the fee to pass he has in express terms devised it together with
the rent. In Doe d. Atkinson v. Fawcett (a) the testator
had a moiety only, and he devised the whole. [Bramwell,
B. The 7 Wm. 4 & 1 Vict. c. 26, s. 28, is a legislative
recognition that the previous decisions were wrong.] The
principle of the decision in the cases cited is that the
testator intended to dispose of his whole estate.-He
referred to Vin. Abridg. "Devise” (I. a), pl. 11.

Joshua Williams was not called upon to reply.

MARTIN, B.—I am of opinion that the plaintiff is entitled to judgment. In Jarman on Wills, vol. 2, p. 247, 3rd ed., the fundamental rule is thus laid down:-"Nothing is better settled than that a devise of messuages, lands, tenements or hereditaments (not estate), without words of limitation, occurring in a will which is not subject to the newly enacted rules of testamentary construction, confers on the devisee an estate for life only." And this is stated to be the rule, notwithstanding that, from a variety of circumstances, examples of which are given, a different intention might be inferred. The learned author proceeds to say: "This rule of construction is entirely technical, as according to popular notions the gift of any subject simply

(a) 3 C. B. 274.

EASTER TERM, 29 VICT.

comprehends all the interests therein. A conviction that the rule is generally subversive of the actual intention of testators always induced the Courts to lend a willing ear whenever a plausible pretext for a departure from it could be suggested. Hence have arisen the various cases in which indefinite devises have been, by implication, enlarged to a fee simple." I think that nothing is to be found in the rest of the will which throws any light upon the testator's intention, and that the construction must be given upon the words of the clause containing the devise. Something may, however, be said as to the interest which the testator had in these lands. He had two undivided fourth parts expectant on the termination of three lives; so that, in fact, he had a reversion. Bearing that in mind, when he says "I give all my undivided quarter of three fields at lease on three lives, he devised his reversion in the undivided quarter. If he had used the words "all my reversion in that undivided quarter" it would have passed the fee, and the language now used ought to receive the same construction. Therefore, even without the case of Doe d. Atkinson v. Fawcett, I should have come to the conclusion that this devise passed the fee, but I cannot distinguish between the words "my moiety" and "my undivided quarter:" if the one will carry the fee the other will also.

BRAMWELL, B.-I am entirely of the same opinion. Without the authority of Doe d. Atkinson v. Fawcett I should have come to the conclusion that this must be a devise of all the estate which the testator had, because it is a devise of an undivided quarter of a reversion. The land being leased for lives, and the devisee being a minor, the testator directs that the rent shall be received during hist minority by his father, evidently intending that the devisce

1866.

MANNING

17.

TAYLOR.

should have all the rent which would accrue under a demise of the reversion. But the case of Doe d. Atkinson v. Fawcett is in point, and concludes the matter.

PIGOTT, B.-I also think that the case of Doe d. Atkinson v. Fawcett is conclusive. It seems to me that it cannot be distinguished from this case, and I am glad that we are enabled to carry out the evident intention of the testator. Judgment for the plaintiff.

April 23 & 30. MANGAN, an Infant, by JOHN MORGAN, his next Friend, v. ATTERTON.

The defendant THIS was an appeal from the direction of the Judge of

exposed in a
market place
a machine for
crushing oil
cake, without
the handle
being fastened
or its being

thrown out of

gear, or in the care of any person. The

the County Court of Staffordshire holden at Lichfield.

The case stated that the particulars of demand were as follows:

:

This action is brought to recover the sum of 501.: For that the defendant, on, &c., did negligently and carelessly expose, in a public street in the city of Lichfield, a certain machine, to wit, a cutting machine, and did then and there negligently and carelessly permit and suffer the said machine to be and remain in the said street for a considerable length of his brother of time unprotected, and without having used ordinary and

plaintiff, a boy four years old, on returning from school

under the care

who was seven

years old, stopped with other boys at the machine,

and whilst one of them was turning the

handle put

his fingers in

reasonable precaution and care: Whereby the plaintiff was much hurt and injured.

It was proved that the machine was a crushing machine for the purpose of crushing oil cake, having on one side

the cogs of the wheels, on being told by his brother to do so, and three of his fingers were crushed.-Held, that the defendant was not liable, as there was no negligence on his part; and the injury was caused by the act of the plaintiff and the boy who turned the handle.