This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
All rules of construction (i.e. for determining the meaning of wills) under the Act are subject to the exception "unless a contrary intention appears in the will."
The object of the Act is to ensure, as far as possible, that the intention of the testator shall prevail. The intention to which the courts give effect is, his intention as expressed in Ids written words) and the court will not listen to evidence which is intended to prove that, though the testator said one thing, he meant another; nor will it make guesses at what the testator meant to say.
Further, for the guidance of persons who are drawing wills, and wish to make the intention absolutely clear, there are certain fixed rules of construction of particular words and phrases, and these will not be departed from, except on very strong expressions of a contrary intention.
Gunliffe v. Branker (1876), 3 Ch. D. 393.
A testator gave land " unto my trustees to the use of A for his life with remainder to the use of such of the children of A as shall be living at the death of A and his wife."
Held, the testator had used a legal phrase, "to the use of," and this must receive its legal meaning, and therefore the legal estate vested in the son for life with a legal remainder to the children if they should survive both A and his wife (n).
But evidence of the circumstances of the family of the testator, and of the facts when he made his will may show that the testator used words in a peculiar sense.
(n) (Note on second reading. This construction was adopted, although the result was to destroy the gift to the children of A. See the same case on p. 157.) This case also shows that, although the statute of uses does not necessarily apply to a gift of lands by will, the statute will he applied to them, if technical words are used.
Dowset v. Sweet (1753), Ambler, 175.
The testator gave property "to John and Benedict, sons of John Sweet." John Sweet had no son named John, but he had a son named James.
Evidence was allowed to be given that the testator used to call this son "Jackey."
I. A devise of land without words of limitation passes the fee simple or, if the testator has not got the fee simple, then the whole of the testator's estate in the land (o).
It is not now necessary in a will to give land "to A and his heirs," or "A" in fee simple: if you wish to give him the fee simple, a gift "to A" is sufficient (and see p. 37).
Before the Act a gift of "land" did not include leaseholds, for they were personal estate. If, however, the testator had no freehold land it was obvious that he intended the leaseholds to pass, and they were held to be included in the gift.
III. A devise of "all my land" includes all the land which the testator has at his death.
By s. 24. The will speaks from death with reference to the property comprised in it.
(a) Before 1837 a will spoke from the time of making.
Thus a gift of " all my lands " passed only the lands which the testator had when he made his will. If he acquired other land afterwards, he must make a new will (or re-publish the old one), otherwise the newly acquired land would go to his heir.
(b) by the Act. All land acquired after the will is made, is included in a gift of "all my lands "; but any land which is sold or disposed of before the testator's death, is of course not included.
(o) 8. 28.
(p) 8. 26.
"With reference to the property comprised therein:"
The will does not speak from death for all purposes. Thus for the purpose of ascertaining the intention of the testator as to the persons named in the will, the circumstances when he made the will should be regarded.
Re Whonvood (1886), 34 Ch. D. 446.
The testator gave "to Lord Sherborne my Oliver Cromwell cup as an heirloom." The person who was Lord Sherborne at the date of the will died before the testator, and another person succeeded to the title.
Held, the gift was to the person who was Lord Sherborne at the date of the will, and the legacy lapsed.
IV. A devise of "all my land" includes land which does not belong to the testator, provided he has an absolute power to dispose of it by will (q).
It is possible to give to A a power or authority to give certain land to any one by his will, or by deed, without giving to A any estate or interest in the land itself. This is called a general power (see p. 162). A testator would often consider that this land was really his, but before the Act a devise of "all my land " would not amount to a gift of the land under the power, because the land did not belong to the testator; but now -
A general devise operates as an exercise of a general power of appointment.
The devise or bequest must be of a general nature.
Re Jacob,  1 Ch. 445.
The testatrix had a general power of appointment over some bank shares. By her will she gave "all stocks shares and securities which I possess or to which I am entitled" to her sisters.
Held, the power of appointment was well exercised.
(q) S. 27.
If the power is special, e.g. limited to children as in the example on p. 163, it will not be exercised unless it is specially referred to.
V. Construction of a gift "to A, but if he shall die without issue, then to B."
The meaning of this gift seems clear - namely, that A is to take the fee simple, but if on his death he leaves no children or issue, then B is to have the fee simple. But this was not the construction before the Act.
(a) Before 1837, this gift was construed to mean that if A died leaving no issue at his death, or if his issue failed after his death, the land was to go to B. And it was held therefore that A had an estate tail, which he could bar.
(b) By the Wills Act, the natural construction is to he followed, and B takes, if A leaves no issue living at his death (r).
This rule has been again altered, for it was found very inconvenient that A should not know until the moment of his death whether he had a fee simple, or whether all his children would die before him, and thus cut down his estate to a life estate. Consequently -
(c) By the Conveyancing Act, 1882(.s), s. 10, if any child or issue of A who is capable of taking under the gift, reaches 21 during the life of A, the gift over to B fails and A takes an absolute interest.
This is a curious rule which overthrows the testator's intention for the sake of convenience. It should be carefully remembered as it stands by itself and is sometimes overlooked in practice. The full text of this section is given on p. 322.
(r) S. 29.
(s) 45 & 46 Vict, c. 39.