1861.

HUTCHINSON

v.

BARROW.

with the orchard and piece of ground behind and adjoining thereto, containing about one acre and a half, which I hereby give and devise to the said Francis Brown and to Sarah his wife, successively, during their lives after the decease of my wife Mary Billyard Hutchinson, and subject to such estates for life, unto and to the use of my said wife, her heirs and assigns for ever."

After a bequest of personalty to his wife, the testator by his said will devised and bequeathed all other his real and personal estate whatsoever and wheresoever to trustees, their heirs, executors, administrators and assigns: upon trust as to his said real estate for his wife for life, with remainder (except as to an estate called Bolham) to the use (subject to certain annuities) of the plaintiff, his heirs and assigns for ever.

The testator died on the 4th of June, 1856, without having revoked or altered his said will.

Mary Billyard Hutchinson, the wife of the testator, survived her husband, and by a codicil to her will, duly executed for passing real estate, gave and devised the said close, called the "Townend Close," to the defendant, his heirs and assigns for ever.

The wife of the said testator had no right or title to dispose of the said close called the "Townend Close" by .her will, unless the same passed to her under the said will of her husband by the devise to her in fee.

At the date and time of the execution of his said will, and from thence until and at the time of his death, the said Henry Clarke Hutchinson was the owner of the messuage or dwelling-house, buildings, cottages and lands situate at Welham aforesaid, which are delineated on the plan which accompanies and is to form part of this case, and containing the quantities particularized on the plan. At the time of his death he was in the occupation of all the particulars

delineated on the plan, except the Hall Close, the cottage marked and the 26 perches of land adjoining, the cottage marked B and the 32 perches of land adjoining, and the cottage marked C.

At the date and time of the execution of his said will he was in the occupation of the same particulars, except the Townend Close in dispute. This close, containing 2 acres and 20 perches, and the Potato Patch adjoining, containing 2 roods and 35 perches, were, previously to the year 1847, part of a close called Townend Close, containing 6 acres or thereabouts, which formed part of a farm belonging to the testator at Welham aforesaid.

In the year 1847 the Manchester, Sheffield and Lincolnshire Railway was laid out, and soon afterwards constructed. It was completed before the testator made his will. This railway cut in two the old Townend Close, leaving one portion, consisting of the Potato Patch and the Townend Close in dispute, on one side of the railway. The said Henry Clarke Hutchinson, on the formation of the railway, and before the date or execution of his will, took the Potato Patch into his own occupation, and continued in the occupation thereof until the time of his death; but the Townend Close in dispute continued to be occupied, with the rest of the said farm, by a tenant of the testator down to the Spring of the year 1856, when the testator took the said close into his own occupation, and from that time until and at the time of his death he continued to occupy the said close with the said other premises so in his occupation as aforesaid.

The railway runs on a high embankment, and there can be no road to the Potato Patch except through the Townend Close in dispute or the land devised by the said testator's will to the said Francis Brown and his wife, successively, during their lives.

1861.

HUTCHINSON

V.

BARROW.

The testator occupied the Potato Patch by means of a gravelled cart road, shewn on the plan accompanying this case, leading from the turnpike road, at the point marked D on the said plan, past the said Francis Brown's house to the point marked E, and thence at right angles over the grass to the point marked F. The testator never occupied the Potato Patch by a road over the Townend Close, but always by the road above described. When the testator took the Townend Close into his occupation he had a gate opened into it at the point marked F on the said plan, and occupied that close by the same road as the Potato Patch.

Before and at the date and time of the execution of his said will, and from thence until and at the time of his death, the said testator was seised in his demesne as of fec (amongst other hereditaments and premises) of the said close called the Townend Close, and the said other hereditaments and premises herein before mentioned.

The question for the opinion of the Court is, whether the said close called the Townend Close, containing 2 a. Or. 20 p., passed under the said will of Henry Clarke Hutchinson by the devise in fee to his said wife.

If the Court shall be of opinion that it did, then judgment is to be entered for the defendant, with costs of suit. If the Court shall be of opinion that it did not, then judgment is to be entered for the plaintiff, with costs of suit.

Kemplay argued for the plaintiff in Hilary Term (Jan. 21). -The question is, whether the Townend Close passed by the testator's will to his wife in fee; if not, she had no power to devise it. The 24th section of the 7 Wm. 4 & 1 Vict. c. 26 enacts" that every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed im