TIMMINS ROWLISON. this act could not leave it out by accident, having the other act before him. As to the words, mentioned and comprised, may not that be done in a parol notice? Certainly it may. I therefore think this a case within the mischief, the preamble and the enacting words of the statute 11 Geo. 2. WILMOT, J.-Same opinion. As to the notice being in writing, the different penning of the acts furnishes evidence [ *535 ] *of different intentions. The 4 Geo. 2 respects, in my opinion, chiefly leases for lives or for long terms of years, and if the tenant holds over, and the landlord gives notice in writing for him to quit, he shall recover not double rent (which would be frequently trifling), but double value (c). There is no power of distress in that act, because no certainty of the value.— There are two good reasons why one should be in writing and the other not: I. If the tenant gives such notice as will justify his leaving the farm, and does not leave it, that is the mischief which the act meant to meet, and parol notice is sufficient for that. 2. Landlords can usually write, and tenants cannot : therefore the landlord's notice is to be in writing, the tenant's This case is within the preamble and the enacting words; but had the preamble been confined, I should have been for extending the remedy according to the enacting words. These tenancies are the most usual of any. It has almost extinguished tenancy at will, which was a most unreasonable and inconvenient tenure to both parties. Then came tenures for a year certain, which were better, but still inconvenient; to turn out or quit at the end of the year without notice. This produced the present rule, that landlords and tenants should mutually give reasonable notice to quit; and there, if a landlord brings ejectment, it is always required that he shew he hath given reasonable notice. What is reasonable is matter of circumstances. This brings the present lease within the words of the act. They have power to quit and determine, upon giving reasonable notice. not. DENNISON and YATES, JS., absent. Judgment for the defendant. (c) See Cutting v. Derby, post, 1075, and the cases there referred to. FROGMORTON, Lessee of BRAMSTON, v. HOLYDAY and Others. S. C. 3 Burr. 1618. EJECTMENT. Verdict for plaintiff on this special case.- ย. HOLYDAY. rents and profits, till the same should be discharged, for the FROGMORTON benefit of her daughter Margaret Holyday. And if said John Haslewood should die in his minority, then the said house and gardens to the testatrix's daughters, Elizabeth Locking, Margaret Holyday, and Hannah Haslewood equally, share and share alike. To her daughter Hannah, and her heirs for ever, another house and garden. And after several pecuniary and specific legacies, she bequeaths the residue of her personal estate to her executors George Holyday and Elizabeth Locking; whom she appoints guardians to her son Haslewood, desiring them to cause him to be brought up to good education and learning." Her son David had been set up in business by his father, who gave him at times upwards of 5007., and two messuages, value 321. per annum. And the father also devised an estate of 401. per annum to his wife Margaret for life; remainder to his son John in fee. John was about seven years of age at the death of his mother, and David twenty-three; and the premisses, by her devised to John, were of the annual value of 10%. John entered, and died seised in 1762; and David his brother died before him, leaving David his son and heir, who, 20th September, 1758, conveyed said premisses to the lessor of the plaintiff in fee.-Qu. Whether an estate for life, or in fee, passed to the said John, by the said will? This case was argued last Term, by Wallace, for the plaintiff, who insisted-1. That although, where an estate is given paying a certain sum to a third person, the estate must be fee-simple, else the devisee is not secure; Collier's Case, 6 Co. 16; Cro. Car. 37 (d); Comyns, 353, Fowler and Blackwell: yet in the present case he cannot be a loser, supposing it an estate for life; as it is not a sum in gross, but is payable out of the growing rents and profits. 2. That in other parts of her will the testatrix has devised to other persons and their heirs, which shews she knew how to devise a fee-simple, when she intended to give it. *Hotham, for defendant.-Wherever such a charge is laid [ *537 ] on an estate, as would leave nothing to the tenant for life, it shall import an estate in fee. In the present case, for five years the devisee shall have nothing. 2. Ail devises must be supposed positively beneficial, not merely (negatively) not prejudicial to the devisee; 2 Mod. 25, Read and Hatton. Courts have adjudged, that gross charges carry a fee, and that charges on the profits, unconnected with other circumstances, an estate for life; Moor, 852. [The] circumstances here are: a woman providing for all her children, in low circumstances and illiterate, gives to both the others a fee expressly, [and she] had no reason to except the other son, whose age makes it impossible he should have offended. The clause of substitution, in case he dies under age, shews it to be a fee. It would be absurd to fix a period, when only the estate should FROGMORTON end, if a mere life estate was intended: Purefoy and Rogers, 2 Saund. 388 a. v. HOLYDAY. The case was again argued this Term, by Blackstone, for plaintiff. The words, on the face of them, carry only an estate for life. What are the circumstances alleged to shew a contrary intent of the testatrix? 1st, From the will itself; 2dly, From other collateral matter.-1. It is said, that, in the preamble, she declares her intent to dispose of all her estate. Where words have been doubtful, Courts have prayed in aid of these words to strengthen other probable arguments; Forrest. 157 (e). But there is no case, wherein any substantive determination has been formed, from these words only; which are the usual hackney preface to all wills, and inserted of course by every schoolmaster in the country.-2. It is said, that the largeness of the charge is such, that no considerable benefit will pass to the devisee, unless the estate be a fee; and there[*538] fore the rule in Collier's Case must be extended to take in the present. But the charge is only five years rent; the life estate of John was worth 16 or 17 years purchase. Besides, it is not necessary that the devise should be certainly beneficial. Sufficient, if it may be beneficial, and cannot possibly be prejudicial to the devisee; 2 Mod. 25, Read and Hatton.3. As to the cause of substitution. Purefoy and Rogers is only a note by the reporter, and is the case of a devise of an inheritance in express words, and the substitution is to the heir-at-law; in both which it differs from the present case, All the cases where an implied fee arises from a substitution, are where the heir is the substitute: and sometimes, even that has not been held sufficient; Comyns, 353.-4. That the testatrix mentions only the residuum of her personal estate; which shews she imagined she had disposed of all her realty. This argument proves too much; it proves, that wherever a testator is silent about his reversions in fee, his precedent devises must be intended to be fee-simple, and the heir shall never take an undevised residuum. When the testatrix meant to give away a fee, she knew how to do it, as appears by two of her devises. If these circumstances operate nothing singly, they can do nothing conjunctly. Twenty defective titles will not amount to one good one. Next, as to the circumstances of the family. Both sons pretty equally provided for by the father. John had an estate of 401. per annum in fee. This might be the reason why the mother substituted the sisters in case he died under age, and not otherwise. For then his 407. per annum must have descended to his brother David; but if he lived to twentyone, he might alien it from his brother; and therefore she directed, that the substitution of the sisters should then cease, and David be entitled to this reversion at all events. The Court will not set bounds to the discretion of parents, and say, they shall never be supposed to make a distinction between (e) Ibbetson v. Beckwith; see post, 891, n. HOLYDAY. their children, even in favour of an eldest son. And consider- FROG MORTON ing the savings that would be made during the infancy of John, the distinction she has made is not worth considering. Wedderburn, for defendant, insisted, that if none of the reasons before taken notice of would be sufficient separately to establish an estate in fee in the devisee, yet, taken conjunctively they might, and cited Scot and Aubrey, Comyns, 337. [ *539 ] And by * Lord MANSFIELD, C. J.-The will must be construed by taking the whole together, as in the Case of Coryton and Hellier (f), where an estate was given for 99 years, omitting the words, "if he shall so long live;" but this was set right by the other parts of the will. The question here is, whether John had a fee bequeathed to him. I believe that in most cases, where devisees have been adjudged not to have the fee, it has been contrary to the testator's intention, who did not know the difference between a devise of lands and of chattels. However, rules of construction there must be, and Courts of justice must stick to them, unless from concurrent circumstances they can gather the intent to be otherwise. Now here, 1st. The testatrix has declared her intent to devise "her worldly estate." That certainly will not make the will carry an estate that is clearly omitted; but if it be dubious, whether the estate is omitted or no, it will help the interpretation (g). She has specifically mentioned all the real estates she had, and disposed of them some how or other. There is a sweeping residuary clause of the personalty, but no mention made of the realty. 2dly. There is a charge on the rents and profits. A sum charged in gross, however small, gives a fee to the devisee charged; (before the Case of Cloudesley and Pelham (h), it was not looked upon as a charge upon the heir): But a charge on the annual profits may leave it an estate for life (i).This is a middle case. One reason why this mode of payment was ordered is apparently, because John was a minor; else, perhaps, it would have been charged in gross. 3dly. The limitation over, in case John died before 21, to his sisters shews, she meant the heir should not have it. Where an estate is directed to be taken away from an institute on a contingency, which does not happen, it shall not be taken away in any other circumstance: And so, vice versa, where it is to be taken away upon the not happening of a contingency, the substitute shall not take it on any other circumstance. (Cic. de Oratore). In (f) 2 Cox, 340; cited in 2 Burr. 923, 2 Ves. S. 195. (g) See Frogmorton v. Wright, post, 891, n. (8). (h) 1 Vern. 411; Beachcroft v. Beachcroft, 2 Vern. 690. (i) "In cases of this kind, the question has always been, whether the charge is to be paid out of the rents and profits of the estate, or whether it is to be paid by the devisee at all events; in the former case the devisee takes only an estate for life, [ v. HOLYDAY. FROGMORTON Jones and Wescomb (k), an estate was given on the contingency of the child, of which the testator's wife was then ensient, dying before 21. The wife proved not to be en*sient: The estate 540] did not pass. This was the only contingency on which the testatrix meant to give away the fee from John and his heirs (7). The reason given by Mr. Blackstone is too refined for people in such circumstances as the testatrix. As to the omission of the word "heirs" in this devise and mentioning them in another, little stress can be laid upon it (m). Therefore, as there is sufficient on the face of the will to carry an estate in fee, the intent thus collected must govern the interpretation. WILMOT, J., accord. This is a kind of loose evidence and must be twisted together. The reason of using the word "heirs" in the other devises, and of omitting it here, might possibly be this:-the will-drawer might think the substitution could not have taken place, if the first devise had been to John and his heirs. But the only event in contemplation of the testatrix, upon which she intended to take away the benefit she had given, was in my opinion the death of her son before the age of 21. DENNISON and YATES, JS., absent. (k) 1 Eq. Abr. 245, Pre. Ch. 316, Gilb. Eq. R. 74. (1) This doctrine was recognized and fully approved of by Lord Ellenborough in The plaintiff was nonsuited. Doe v. Cundall, 9 East, 400, where a similar construction was adopted. (m) But see Doe v. Martin, 4 T. R. 69, per Buller, J. Judgment, for THE KING V. KEARSLEY et Al. DEFENDANT was convicted on an information filed by the Attorney-General, (for printing the North Briton, No. 45) in Easter, 1763; to which he pleaded in Trinity Term, but was not brought to trial till the sittings after Trinity, 1764. He was brought up in Michaelmas Term following for judgment, when he made affidavit, "That, on 29th April, 1763, Lords "Halifax and Egremont, then Secretaries of State, told him, "that the object of their resentment was the author not the publisher. That, 16th November, 1763, he waited on Lord "Halifax, who assured him upon his honour he knew nothing of "the prosecution, and that, if he had any influence on the gen"tleman who conducted it, he should not be punished, unless [*541]" it appeared absolutely necessary, which he supposed it was "not:" Whereupon he was remanded to give the agents for the Crown an opportunity of answering this affidavit. Now on the first day of this Term Norton, Attorney-General, produced the original letter from Lord Halifax to Mr. Yorke, then Attorney-General, for filing the said information, dated 9th May, 1763, and declared, that no directions or even hint had been since given for stopping the same; wherefore he was obliged in duty to proceed upon it: Quod fuit concessum per curiam. But no affidavit was produced from Lord Halifax, the surviving |