Richard Jesson, Joseph Hately, William Whitehouse, Joseph Walton, Edward Dangerfield, the elder, and Thomas Dangerfield, Plaintiffs in Error v. John Doe on the several Demises of Ezekiel Wright, John Wright, Thomas Wright, Geo. Wright, Isaac Wright, William Wright, the younger, Lucy Wright, Mary Wright, Daniel Wright, Elizabeth Mosley, and Thomas Stokes, Defendants in Error [1820] UKHL 2_Bligh_1

UKHL
Richard Jesson, Joseph Hately, William Whitehouse, Joseph Walton, Edward Dangerfield, the elder, and Thomas Dangerfield, Plaintiffs in Error v. John Doe on the several Demises of Ezekiel Wright, John Wright, Thomas Wright, Geo. Wright, Isaac Wright, William Wright, the younger, Lucy Wright, Mary Wright, Daniel Wright, Elizabeth Mosley, and Thomas Stokes, Defendants in Error
[1820] UKHL 2_Bligh_1
REPORTS OF CASES HEARD IN THE HOUSE OF LORDS, UPON APPEALS AND WRITS OF ERROR, And decided during the Session , 1820.1 Geo . IV.ENGLAND.WRIT OF ERROR FROM THE COURT OF KING'S BENCH.

No. 1

Between Richard Jesson, Joseph Hately, William Whitehouse, Joseph Walton, Edward Dangerfield , the elder, and Thomas Dangerfield , Plaintiffs in Error v. John Doe on the several Demises of Ezekiel Wright, John Wright, Thomas Wright, Geo. Wright, Isaac Wright, William Wright , the younger, Lucy Wright, Mary Wright, Daniel Wright, Elizabeth Mosley , and Thomas Stokes , Defendants in Error1820 .

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Subject_ Devise . —

To W. (a natural son of the testator's sister) for life, and after his decease to the heirs of his body in such shares and proportions as W. by deed, &c. shall appoint; and for want of such appointment to the heirs of the body of W. share and share alike as tenants in common; and if but one child the whole to such only child, and for want of such issue to the heirs of devisor. Held—that an estate tail vested in William by this devise.The rule is, that technical words shall have their legal effect, unless from subsequent inconsistent words it is clear that the testator meant otherwise.Semble—that under such power an appointment to an only child, before others born, is effectual.Whether a power, under which all children have an interest, can be destroyed by forfeiture. Quære.Doe v. Goff , 11 East, 668, held not to be law.This was an ejectment brought in the Court of King's Bench against the Plaintiff in Error, to recover the possession of tenements in the county of Stafford.This cause came on to be tried at the assizes for the county of Stafford, holden at Stafford, on the 16th day of March, 1815, before the Honourrable Mr. Justice Dallas, when the jury, by the consent of the parties, found a special verdict.The special verdict states,Ezekiel Persehouse seized. 24th April, 1773.That one Ezekiel Persehouse, being seized in fee of the premises set forth in the declaration, made and published his last will in writing, on the 24th of April, 1773, executed and attested as the law requires, for passing real estates by devise, and that thereby, among other things, he gave and devised

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“I give and devise unto William, one of the sons of my sister Ann Wright, before marriage, all that messuage, tenement, or dwelling-house, malt-house, stable, buildings, garden, hereditaments, and premises, with their and every of their appurtenances, situate and being in the parish of Tipton, otherwise Tibbington, and county of Stafford, now in my own possession: and all those two dwelling-houses, barn, shops, buildings, gardens, hereditaments, and premises, situate in the said parish of Tipton, otherwise Tibbington, now in the occupation of John Law, and Timmins: and also all those seven closes, pieces or parcels of land, or ground, to the said two dwelling-houses and buildings adjoining, or nearly adjoining, and belonging, with their and every of their appurtenances, now in my own possession: to hold the same premises unto the said William, son of my said sister Ann Wright, for and during the term of his natural life, he keeping all the said dwelling-houses and buildings in tenantable repair: and from and after his decease, I give and devise all the said dwelling-houses or tenements, buildings, garden, lands, hereditaments, and premises, with their and every of their appurtenances, unto the heirs of the body of the said William, son of my said sister Ann Wright, lawfully issuing, in such shares and proportions as he the said William, in and by any deed or writing, deeds or writings, or in and by his last

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Ezekiel Persehouse dies seized on the same day.Tho. Stokes, Ann Wright, and Elizabeth Persehouse, his co-heirs. Ann Wright and Elizabeth Persehouse dying, Daniel Wright and Elizabeth Mosley suceeded as heirs. Said Wiliam Wright entered.The special verdict then states, that the said Ezekiel Persehouse died on the same day, seized of the said premises, without altering his will; and that, upon the death of the said Ezekiel Persehouse, Thomas Stokes, Ann Wright, and Elizabeth Persehouse, were his co-heirs, of whom Ann Wright and Elizabeth dying, respectively, Daniel Wright and Elizabeth Mosley succeeded, as heirs, which said Thomas Stokes, Daniel Wright, and Elizabeth Mosley, are three of the lessors of the Plaintiff.13th December, 1774, marries. And has issue, Edw. Wright, Eliz. Wright, Lucy Wright, Ezek. Wright, Jone Wright, Tho. Wright. Geo. Wright, Isaac Wright, Mary Wright, and William Wright, the younger.The special verdict further states, that immediately after the death of the said Ezekiel Persehouse, the said William Wright named in his will, entered in the said premises, and became seized of such estates as legally passed to him under the will of the said Ezekiel Persehouse; and that, afterwards, on the 13th December, 1774, he married one Mary Jones, by whom he had issue, Edward Wright, Elizabeth Wright, Lucy Wright, Ezekiel Wright, John Wright, Thomas Wright, George Wright, Isaac Wright, Mary Wright, and William Wright, the younger, born in the above order, of whom Elizabeth, afterwards, on the 23d February, 1798, died without issue; and Lucy, Ezekiel, John, Thomas, George, Isaac, Mary, and William, the younger, are the other lessors of the Plaintiff.23d February 1798, death of Eliz. Wright. 16th and 17th January, 1800. Indentures between William Wright, and Mary, his wife, and Edward Wright, their eldest son, to Robert Long, for suffering a common recovery.Hilary Term following. Recovery suffered accordingly, Wherein William Wright, and Mary, his wife, and Edward Wright, were vouchees. Entry of the lessors of the Plaintiff.The special verdict further states, that afterwards ,

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Ejectment and ouster.The special verdict then states the entries of the several and respective lessors of the Plaintiff, on the premises, and their seizin, according to law; and the several demises to John Doe, the Plaintiff in Ejectment, who entered and was possessed, until the Plaintiffs in Error entered on the premises and ejected him thereout.Easter Term, 1816. Special verdict argued.Judgment for Plaintiff below.This special verdict was argued in Court in Easter Term, 1816, the Plaintiff below arguing that William Wright, the devisee, took an estate for life only, with remainders to his children for life, respectively, as tenants in common, while the Defendants below contended that the said William Wright took an estate tail. The Court gave judgment for the Plaintiff below. *

Footnote

* See the arguments and judgment, 5 Mau. and Sel. 95.

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Writ of error and errors assigned.Against this judgment a writ of error was brought. The principal error assigned was, that the Court below, by their judgment, had decided, that “William Wright took only a life-estate under the will of, &c., with remainder to his children for life; and that the recovery suffered by William Wright, Mary, his wife, and Edward Wright, was a forfeiture of their estate. Whereas the Plaintiffs in Error contended, that the testator intended to embrace all the issue of William Wright, which intention could only be effected by giving William Wright an estate tail, for which purpose the words of the will are fully sufficient”For the Plaintiffs in Error— Mr. Jervis and Mr . Sugden .Argument for Plaintiff in Error.7th, 9th, 12th, and 14ht of June.It was the intention of the testator to include all William's issue, and sufficient appears on the face of the will to enable a court of law to effectuate his intention. The decision in the Court below attributes this meaning to the testator,—That if William had only one child born who survived him, such child should take the whole estate for life; but if he had twelve (for example), and eleven died in his lifetime, the surviving child should have only a twelfth of the estate for his life. Is this a probable intention?—Again, if he had twelve children, and they all died in his lifetime leaving issue, according to this decision none of the issue could take? If their parents, indeed, had lived, they might have been supported out of the estate, but if their parents chanced to die in William's lifetime, they could derive no benefit from

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The testator has given the estate to the heirs “of the body of William lawfully issuing.” Those words clearly include all the posterity of William. But it is said that he has translated his words to mean children. There is no doubt but that he intended the children to take. But the translation is too narrow. It makes the testator say that William's children shall take only for life, and that none of their children shall take after them. What warrant is there for this in the will? Can it be argued, that because under the latter words in the will, had they stood alone , William's children would merely have taken estates for life, therefore, they shall in this case take only that quantity of interest, although the testator has expressly given the property to

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It seems impossible to contend, that William under this power might not have appointed an estate, of inheritance * to a grandson, or more remote issue, born in his lifetime, and this of itself decides the case. This, it is argued, the rule of perpetuity forbids. It may be admitted, that he could not appoint to a child, with remainder to the issue of that child, to take as a purchaser; but where, as in this case, the power is to appoint to heirs of the body a class of unborn persons as

Footnote

* The power is to appoint to heirs of the body of William in such share and proportions as William shall appoint, not in such manner and form , (as well as in such shares and proportions,) according to the power in the King v. the Marquis of Stafford , 7 East, 521; nor for such estates according to the power of devise given in Leonard Lovie's case: nor is it a power to dispose of the estate, as the donee should think fit, as in Liefe v. Saltingtone . It may be said, that an appointment to a living grandson of William, and the heirs of the body of the grandson, would be an appointment to the heirs of the body of William. In this sense of the argument, “ estate of inheritance ” means estate tail. On this point see farther, p. 23, and note.

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Let us consider this proposition. A devise to A. and the heirs of his body; of course he takes an estate in tail. A similar devise with a power to A. to appoint to any of the heirs of the body. Is it possible to contend that this right to defeat the estate so given to him, and to make those take by purchase, who, if the power remained unexercised , would take by descent, can

Footnote

* At this part of the argument, the Lord Chancellor observed, as to the distribution under the power, that, although the words heirs of the body, in a legal construction, could apply to one person only, it might be contended, where a power was given to appoint to heirs of the body, that it meant a class of persons. The ulterior limitation to one child, in default of appointment, might operate as a description of the person, and would not conclusively prove that no estate tail was intended to be given.

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This case was decided in the Court below, upon its own merits, without reference to authorities; but the decided cases are strong authorities against the judgment. In the case of Seale v. Barter , * which was a devise of all the testator's lands to his son, John, and his children lawfully to be begotten, with power to settle the same, or any part thereof, by will or otherwise, to them or any of them as he should think proper; and for default of such issue , over—it was held that John took an estate tail, and that this construction

Footnote

* 2 Bos. and Pull. 485.

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Footnote

* 7 Taun. 209. 2 Marsh. 517.

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The Lord Chancellor . The gift is to the heirs of the body share and share alike as tenants in common.Mr. Sugden . If it can be made consistent with other words in the will, to give the children estates for life only,—then they must take by way of purchase, as tenants in common. But the words, share and share alike, may be construed by reference to the power which contains an implied or possible gift, under which they would take as tenants in common.Lord Chancellor . If I had lived 200 years ago, I should have had no doubt that such limitations, as we see in this will, would have given an estate tail. But your argument supposes, that the donee of the power might appoint among grandchildren, &c. to the remotest posterity. That I should have thought impossible, if I had lived 200 years ago.Mr. Sugden . Keeping within the rule of perpetuity, he might have appointed to any the remotest heir of the body.It may be admitted, that if “heirs of the body” means children,—such heirs, or such issue, must mean the same thing. The same words cannot have different meanings, in the different parts of a will. But the supposed virtue of the word such ,

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The inconvenience of the supposed intention has been already noticed. If only one child should be born, they imagine the testator meant that he should take the lands for life. If twelve children, and eleven died infants, according to one construction, the survivor would take the whole;—according to another construction, he would take only a twelfth part. If the eleven died, leaving families, the families would take nothing. It was argued in the Court below, that under the will, cross remainders for life were to be implied, as among the children of William. But this argument was adverse to the interest of the heir at law, by whose counsel it was urged. It may be necessary to ascertain on which of the counts in the declaration they have entered up the verdict.—Some are on the demise of the children, some on that of the heirs at law. The judgment itself does not furnish the information.Mr. Taunton . Lord Ellenborough said, that as there were counts on the demise of the heir at law, as well as the children, it was unnecessary to enter into the argument, as to the cross remainders, which might be material, as between the two sets of Plaintiffs; but was immaterial, as between them and the Defendants.Lord Redesdale . Is Edward Wright living?Mr. Sugden . Edward the son is living as well as the father. They put it as a forfeiture of the life estate.

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Lord Redesdale . If it is a forfeiture by Edward the son, it must be because he took under the appointment; and so it must be argued as a forfeiture of the whole.Lord Chancellor . Were other children living at the time?Mr. Sugden . That appears only by inference to be drawn from the special verdict. The word “afterwards” in that part of the verdict which states the conveyance, does not conclusively mean in point of time, after all the facts before stated in it.Lord Redesdale . Could the power be destroyed by forfeiture where all the children have an interest?Mr. Sugden . Such a question is now depending before the Vice-Chancellor, * and probably will go farther.Lord Redesdale . How could it be destroyed by such instruments as these? It must be by some instrument expressly renouncing it. How can a man, having a power for the benefit of children, destroy it?Lord Chancellor . The appointment ought to be stated. It appears by the verdict, that Edward

Footnote

* Smith v. Death , before the Vice-Chancellor, who delivered his judgment on the 19th of June, 1820. The decision was that the power could be destroyed. The same question was argued, but not decided, in West v. Berney , before the Vice-Chancellor in Hilary Term, 1819.—See Sugden on Powers, pp. 80, 81, third edition.

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Mr. Taunton . In the special verdict there is no appearance of appointment.

Lord Chancellor . We sit here to decide on cases as they appear on the record. *

Mr. Taunton . On the trial, the appointment could not be proved; and it was agreed that it should be put out of consideration. The recital of a fact in a deed is no evidence against strangers. A fortiori , the mere description, cannot be evidence against the Plaintiffs in the action.Lord Redesdale . Would not this instrument (in the absence of any other) operate as an appointment?Mr. Taunton . It was executed alio intuitu , merely to make a tenant to the præcipe.Lord Chancellor . The making Edward a party to the deed, is evidence that they did not choose to deal with William, as having an estate tail; and therefore took in Edward as having such estate. The question is, whether William so acting towards Edward, the deed of William must not operate as an appointment.

Footnote

* No appointment is stated in the special verdict; but, in the printed case of the Plaintiff in Error, William is described as appointee in tail general . Upon this point see the observations of the Lord Chancellor in giving judgment, pp. 51, 52. This part of the argument is preserved on account of the judicial observations.

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Mr. Sugden . A recital has in Chancery been held to be an appointment. * A covenant to levy a fine has been held not to operate as a destruction of the power, † because the court looks to intention. So even where a fine has been levied. ‡ A deed of covenant cannot so operate, because it imports an intention that something more should be done. And where a deed, declaring the uses (after the fine levied), was executed, in the manner required by the power, it was held, that the deed and fine taken together, operated as an appointment. ‡ Admitting that the description alone does not make the son appointee, yet it may operate to show an intention of appointment, and being followed by the declaration of uses in the deed of recovery, they altogether operate as an execution, and not as a destruction of the power. This is a stronger case than that of Lord Leicester, and others of that class. There the ground was intention, to be inferred from the nature of the transaction. But here is an express declaration, operating as an appointment to the son. There is nothing on the face of the verdict to show that any other child was living at the date of the appointment. The subsequent birth of issue, in such circumstances, could never defeat the estate of the son. The difficulty which occurs in other cases, where there

Footnote

* Wilson v. Pigott , 2 Ves. J. 351.† The Earl of Leicester's Case, 1 Ventr. 278. It is also reported under the name of Wigson v. Garrett , or Garrad, 2 Lev. 149. Raym. 239. 3 Keb. 366. 489. 510. 536. 572.‡ Herring v. Brown , 2 Shower, 185. 1 Ventr. 368. 371. Skinner, 35. 53. 71. 184. Carth. 22. Comb. 11.

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The argument that the children took mere life estates, is sufficient to destroy the Respondents' case. There is no authority extant, in which the words, “heirs of the body,” in such a case as this, have been cut down to life estates. The children have always been held to take the inheritance.The authorities cited in support of the adverse claim are not applicable to this case. In Goodtitle v. Herring , * the limitation to the “heirs male of the body,” was in a subsequent part of the will clearly explained, nay, even expressed to mean sons . In this case we have no such expression or explanation. In Archer's case, † the limitation was to the next heir , in the singular number, and words of limitation were superadded, viz. to the heirs of the body of that next heir . In Cheek v. Day , ‡ the devise was to the heir in the singular number, and words of inheritance in fee were grafted upon that limitation. In Walker v. Snow , § the same circumstances occurred, and it was, moreover, clearly a description of the person. Lisle v. Gray || was nearly similar to Goodtitle v. Herring , ** where the words heirs male of the body, were explained by the will, to mean sons successively. So in Lawe v. Davies , †† occurred the

Footnote

* 1 East. 264.† Rep. 66.‡ Moor. 593. 2 Roll. Abr. 417. (G.) pl. 7. Cro. Eliz. 313. Ow. 148. (cited Ld. Raym. 295. and Fitz. Gib. 24). See also White v. Collins , Com. Rep. 289.§ Palm. 359.|| 2 Lev. 223. Raym. 278.** 1 East. 264.†† 2 Ld. Raym. 1561.

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In this case the testator by the word such , might mean to refer to children; children might have been the issue contemplated. But he had before expressed, and it must be presumed he intended an entail that all the issue of William might inherit. Here, therefore, are incompatible intentions, and the general must prevail against the particular intent. So in the case of Coulson v. Coulson , † it was argued, from the interposition of trustees, to preserve contingent remainders, that the testator contemplated, and intended to raise contingent remainders to be preserved, and probably it was so. But the general rule prevailed in that case, notwithstanding such probable particular intent to be inferred from that provision and limitation.William being an illegitimate son, he and his children were strangers to the testator. This has in all

Footnote

* 2 Burr, 1100. 1 Black. Rep. 265. Et vid Durnf. and East. Rep. a note on this case.† 2 Stra. 1125. 2 Atk. 246, et vid Hodgson et ux v. Ambrose . Dougl. Rep.

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As to the words “among the heirs of the body, share and share alike, as tenants in common, &c.” they have in many cases been rejected, where it has appeared that the testator intended to give to the whole line of the issue. It is necessary in such cases, to hold it to be an estate tail, to guard against the inference from the want of any express limitation or implication of cross remainders among the children, so as to give the estate of a child dying without issue, to the survivors. The cases show that it ought not to be implied that the father takes for life only, unless the court can raise such further implication, as to give the whole estate to all the children. In Doe v. Smith , * the devise was to M. A. and the heirs of her body, as tenants in common , which was held to give an estate tail, notwithstanding those latter words, and the reasoning of Lord Kenyon in delivering judgment in that case, is applicable to, and decisive of this case. Again, in Doe v. Cooper , † the devise was expressly to R. C. for life only; and after, &c. to the issue of R. C. as tenants in common; and in case R. C. should die without leaving lawful issue , to E. H. and her heirs. The court held

Footnote

* 7 T. R. 531.1 East. 229.

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Footnote

* 3 East. 548.† Before the Vice-Chancellor, 3rd May, 1820, not reported.— See the note at the end of the report of this case.‡ 1 Meriv. 654. Some of the children were unborn.

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If the gift had been to “ children ,” instead of “heirs of the body,” the same argument would have arisen. The word children, when used as a class , gives the same interest. That appears by the authority of the Court of K. B. in Doe v. webber , * a case in which there was a devise to M. H. and her heirs; and in case M. H. should die and leave no child or children to J. B., &c. The Court held that child or children meant issue, not confined to immediate, but extending to the remotest descendants. Such was the opinion of that Court upon a question, whether it was an estate tail, or an executory devise; whether the words child or children, in the contingent clause, introducing the remainder over, reduced the fee before

Footnote

*.1 B. and A. 713.

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12th June.As to the intention, the Respondents haveargued nothing. They rely on the rigid legal construction of the words. They contend, 1. that under the power, the heirs of the body must take as purchasers; and if so, as children. 2. That in default of appointment, they take as tenants in common; again, as they argue, as children. Lastly, they say, the limitation introducing the remainder over, viz. in default of such issue, directly refers to “ child ,” the last antecedent; and therefore issue in that place means children as before. To the first argument, the answer is, that the donee might have appointed to any of the heirs of the body, considering them as a class. Which of the words come first, and which last, is immaterial. The power is to appoint to heirs as purchasers, and not as descendants. Such a power cannot break the estate tail; it would not do so if the devise were to children. Taking the word to be “children,” according to their construction, he might appoint to any of his descendants. Liefe v. Saltingstone . * Under the power in this case, William might have

Footnote

* 1 Mod. 189. In that case the devise was to the wife for life; and “by her to be disposed of to such of my children, &c.;” and the judges being a majority who decided the case, relied on the word “ dispose ,” as implying such a power as the testator himself had, which was to dispose of the fee.—See the next page.

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As to Doe v. Goff , where the devise was to M. and the heirs of her body, as tenants in common, and not as joint tenants; but if such issue should die before he, she, or they respectively attain the age of twenty-one, then to J. M. and his heirs, it was held an estate in the children, in common in tail, chiefly upon the effect of the

Footnote

* Upon the general question, whether a fee simple may be given under a power to appoint among the heirs of the body, issue, children, &c. without any additional words to extend the power. See Sugden on Powers, 9. c. s. 10. In the King v. Marquis of Stafford , the Court said they would not determine the general question, but relied on the efficacy of the words manner and form . The power in Phelps v. Hay had the same words. Sugden on Powers. Appendix, No. 18.—See ante, p. 9.† 7 Tau. Rep. 209, and 2 Marsh. Rep. 517. Mr. Sugden added, arguendo , that the case was free from prejudice, because Doe v. Jesson was not cited or noticed. V. Post. 44.‡ That remainders in default of appointment are not suspended or kept in contingency by powers annexed to, or which accompany preceding estates. See Cunningham v. Moody , 1 Ves. 174. Doe v. Martin , 4 T. R. 39.; and the same doctrine as to personal property, 1 Ves. 210. 2 Ves. 208. Amb. 365.

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It is argued, that he meant the children to take, if more than one, because he gives to one child, if there should be but one. No doubt that was his

Footnote

* 6 Tau. 94.† In the K. B.‡ 2 Burr. 1100.§ 5 East 198. This was a devise to A. for life; and after him to his eldest, or any other son after him for life; and after them, to as many of his descendants, issue male, as shall be heirs of his or their bodies , down to the tenth generation, during their lives.|| 1 P. W. 332. This was a devise to trustees to convey , &c. to children of unborn children for life, which the Court, upon doctrines of equity modelled, by decreeing conveyances to existing children for life, and to unborn children in tail, &c.

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Footnote

* This case is reported in a former proceeding between different parties, but upon the same question and title, in 1 Ventr. 334, under the name of James v. Richardson . Upon the writ of error in the second proceeding it is reported, 2 Ventr. 311, under the name of Burchett v. Durdant ; and upon the point urged in the above argument, the Court certainly held that G. D. took an estate tail, upon the ground that heirs is nomen collectivum . But the Court further held, “that in case the first words, (viz.) heirs of the body now living, would carry but an estate for life to G. D. yet the subsequent words would make an entail in him, ( viz .) and to such other heirs , male and female, as he should hereafter happen to have of his body . This would clearly vest an entail in G. D. he being heir of the body of Robert, and surviving Robert.” This case is also reported by Keble, 3, 832, Pollexfen, 457, Jones, 99, Levinz, 2, 232, and Raymond, 330, as between James and Richardson: and in Carthew, 154, Skinner, 205, and Comberbach, 153, as between Burchett v. Durdant .

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As to the argument founded on the word such , and its reference to the immediate antecedent child; the words are “for want of such issue;” and the fair construction, even grammatically, is not by a narrow reference to the last preceding object designated, but generally to all the limitations, to “heirs, issue, or children.” Reading all the clauses of the will together, it means in default of all the issue before named or specified. It is said, the testator himself has explained what he means

Footnote

* This must be understood fee-tail, for such was the decision.† 2 Black. Rep. 1083.‡ It was to A. and his sons in tail male; and for want of such issue over, and A. had no issue at the date of the will, or at the death of the testator.—See Wilde's case, 6 Rep. 16.§ Dougl. Rep. 415.—See post, p. 38.|| 1 B. C. C. 206.

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The question, whether cross remainders are to be implied between the children as tenants for life, ought to be decided for the satisfaction of the Plaintiffs in Error, if the judgment is against them. It ought to be ascertained by the judgment, which of the Plaintiffs below are entitled, that the Plaintiffs in Error may know the grounds on which they are deprived of the estate, if that should be the result.The words heirs of the body having, in the present case, been considered to mean children , the subsequent words, “and for want of such issue,” were held by the judges in the Court below to refer only to children; for such , it was said, is a word of reference. But why, it may be asked, not extend it to the heirs of the body , to whom the estate was expressly given? There is certainly considerable evidence, on the face of the will, that the testator intended that William's children should take by purchase; but there is stronger evidence that he meant them to take such an estate as they could transmit to their issue, so as to include all, “the heirs of the body of William issuing,” for want of which

Footnote

* 1 Burr. 38, and 2 Ves. 225.† 5 East. 548.

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It is said, the provision and devise, if one child, to that one, includes the other case, viz. of there being more than one, in which case they were all to take. Granted. But still it remains to show, that, because the children were to take, they were to take life estates only. “If but one child, the whole to that one child,” i. e . the whole estate, and also the testator's interest in it. This is what the testator meant, although his meaning cannot in this way be effectuated. The gift over, “for want of such issue,” afforded irresistible evidence of the

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The will made by the judgment in the Court below is to William for life: remainder to his sons and daughters as he shall appoint, but not giving them more than life estates: in default of appointment, to his sons and daughters share and share alike for their lives; and if there shall only be one child born , the whole to that one for life; and after the death of each child, his or her share over.It was only by this construction that it was possible to weaken the force of the words “for want of such issue.” Lord Northington has observed, that “for want of such issue,” means for default of such issue. There is something, he adds, of peculiar force in this expression, and the law supposes the inheritance already attached in the first taker, but liable to be defeated by a subsequent event, his dying without issue. * So Mr. Justice Lawrence said, in † Pierson v. Vickers , that these words are always construed to mean an indefinite failure of issue, unless restrained by other words. In this case there are no such words, nor any authority in the books for the construction which has been put upon the words actually used by the testator.It is immaterial whether the words were heirs of the body or children , in either case the intention

Footnote

* T. R. 227, note.† 5 East. 552.

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The following rules may be safely laid down:I. That a devise may, in favour of the intention, include all a man's possible issue, although in terms only a particular class is included.II. That if words are used which denote an intention to give the estate to the children by purchase, they shall take in that character, where they can take by force of the will, such an estate as will include all the issue, so that the estate may not go over before a total failure of issue.III. That although such an intention is apparent, yet where the general intention, viz. to include all the issue, can only be effectuated by vesting an estate tail in the parent, he shall take that quantity of interest in opposition to the words of the will. The particular intent of the testator shall be sacrificed in favour of his general intent.The leading authority on the first rule is Robinson v. Robinson . * There the testator devised his estate to Lancelot Hicks, for and during the term of his natural life and no longer , provided that he altered his name to Robinson, and lived at his house of Boclyne. And after his decease to such son as he shall have lawfully to be begotten, taking the name of Robinson; and for default of such issue then, I bequeath the same to my cousin, Wm. R. and his heirs for ever. The judges certified

Footnote

* 1 Burr. 38, and 2 Ves. 225.

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The power in this case is in favour of the Plaintiff in Error; but we may strike out the power, without weakening the effect of the other words, upon the authority of Seale v. Barter . ‡In Robinson v. Robinson , the limitation, after Lancelot Hicks' decease, was to such son as he shall have lawfully to be begotten, taking the name; and for default of such issue over.Will any lawyer attempt to distinguish the cases, with a view to show that Mr. Robinson intended to include all Mr. Hicks' issue, and that Mr. Pershouse did not intend to include all Mr. Wright's issue.The case of Robinson v. Robinson is a decisive authority also in favour of the general construction of the words “for want of such issue.” According to the decision of this case in the Court below, the will in Robinson v. Robinson

Footnote

* And (it should be added, to complete the proof of the proposition,) the express devise to his son.†3 B. P. C. 180.‡2 Bos. and Pull. 485.

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In the case of Pierson v. Vickers , * which was decided by Lord Ellenborough , C. J. Lawrence , J. Grose , J. and Le Blanc , J . the limitations were to the testator's daughter, Ann, and to the heirs of her body lawfully to be begotten, whether sons or daughters , as tenants in common, and not as joint tenants; and in default of such issue, to his sisters for their joint lives; remainder to a trustee to preserve contingent remainders: and after the decease of either of them, to all and every the child and children of, &c. whether sons or daughters , and their heirs and assigns for ever, as tenants in common, and not as joint tenants: it was held that Ann took an estate tail, notwithstanding the argument, that the testator had explained heirs of the body to mean children, viz. sons and daughters. How, said Lord Ellenborough , do you get rid of the words, “in default of such issue?” Such , it was insisted, had reference to sons and daughters. The testator, it was said, meant the estate to go over, if Ann left no sons or daughters living at her death. But

Footnote

* 5 East. 518.

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Footnote

* Not so expressly to the children of the daughter.

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The case of Doe and Burnsall * was relied upon as supporting the judgment in the Court below, but there the children took the fee; the words being large enough for that purpose; and therefore that case, like many others, must be classed under the second rule above noticed, and cannot govern a case

Footnote

* 6 Term Rep. 30.

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The only cases which were relied upon in favour of the words “for want of such issue,” being construed “and after the deaths of the children,” were Hay v. Lord Coventry , * and Denn v. Page . † But those cases differ, toto cœlo from the present. There, after a regular provision for sons in tail, a limitation was added to daughters without words of inheritance; and for want of such issue over. That is not an improbable disposition, and cannot be compared with this case. Upon the judgment in Denn v. Page , Lord Kenyon has made the following observations: ‡ —landed property), it is not improbable that it should occur to the testator to provide for the present generation, and therefore he devised to all and every the daughters of the body of T. Nash, by his then wife, and for default of such issue, to the right heirs of T. Nash for ever. Now, when there is nothing in the will to lead to such a supposition, why should it be supposed that that was a blunder which brought forward the daughters of sons in preference to the issue of the sisters. I have known many cautious testators make limitations in their wills like that.”
“The case of Denn d. Briddon v. Page , has been relied on by the Plaintiffs in Error, where Lord Mansfield intimated an opinion that there was a blunder in the will. I find myself pressed by whatever fell from so great a judge, and it is always with doubt and distrust of my own mind that I differ from him in opinion; but I am not prepared to say that there was any blunder in that will. There the devisor gave to S. Nash, the son of T. and M. Nash, for life, remainder to trustees to preserve contingent remainders, remainder to the first and other sons of S. Nash, and the heirs male of his and their bodies; then having provided for the male heirs (who are generally the favourites in cases of

Footnote

* 3 Term Rep. 83.† And the note.‡ In Dacre v. Dacre , 8 T. R. 116.

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In the above case clearly all the children took by purchase; the sons express estates of inheritance, the daughters estates of freehold only. It was not a gift to children generally, but to daughters, a particular class of issue. And the words, “for want of such issue,” were satisfied by the previous estates of inheritance in the sons, and the life estates in the daughters. It never occurred to any judge that that case clashed with Robinson v. Robinson , or Pierson v. Vickers , which are clear and decisive authorities, that in a case like this, the words, “for want of such issue,” mean a general failure of issue.This is the first case in the books in which the force and operation of the words “heirs of the body” have been so frittered away; but even if it be conceded, that the testator has explained the words heirs of the body to mean children , yet it would equally follow, that all the posterity of William were intended to take.In Wilde's case * there was a devise to A. for life,

Footnote

* 6 Rep. 16, Mo. 397.

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So a devise “to William for the term of his life (as in the present case), and after his decease to the men children of his body; and if William die without man child of his body,” then over was held to be an estate tail in William . * There are other authorities to the same effect.The case of Hodges and Middleton , † bears closely upon this, if the words, heirs of the body, are to be read as children. There the devise was of real estate to A. and at her death to her children , and in case of failure of children, over. A. had issue living at the death of the testatrix, and at the date of the will. The court inclined to think that A. took in tail, but if she took only for life, they held that the children would take in tail. It is a powerful authority against the decision in the present case.

So in Seale v. Barter , ‡ where the devise was

Footnote

* 1 And. 43.† Doug. 431.‡ 2 B. and P. 485.

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No answer was attempted to be given to these authorities, which directly prove that William Wright became entitled to an estate tail under Pershouse's will.It is not necessary to demonstrate that the intention cannot be effectuated under the second rule. It is clear, that, if the children are to take by purchase, they cannot take all the interest which the testator intended. The very decision in their favour gives them merely life estates as tenants in common, which in event might not give to them any beneficial interest. In all the cases which it is possible to cite from the books, where the heirs have been held to take by purchase, the words of the will were sufficient to give them an estate, which would include all the issue for whom the testator intended to provide. There are several cases accordingly, in which, although the children taking by purchase, would take an estate tail; yet that construction was not adopted, because cross remainders could not be raised between them. *The consequence of the exclusion of the case from the second rule, is, that it falls within the third. Certainly the intention that the children should take as tenants in common is incompatible with an estate tail in the parent; but it has long been the settled law of the land, that that circumstance shall give way to the general

Footnote

* As to implication of cross-remainders, see post, p. 47, note.

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For the Defendants in Error— W. E. Taunton and C. Puller .The ejectment was brought on behalf of the children; and an attempt was made to argue the case, on the ground that cross remainders were to be implied among the children. But as the heirs were made parties to the action in a distinct count, the Court refused to hear that argument; and the judgment was entered up on the count for the heirs, which might be applied in favour of the children, If cross remainders can be implied, the entry of the judgment is wrong. But this does not affect the substance of the case. The proposition to be maintained is, that William took only an estate for life, with remainder for life to the children. On the other side they contend that the testator had two intentions, and that one is paramount; viz. that the estate shall not go to the ultimate remainder man, until after an indefinite failure of issue. There is no such paramount intent. The testator designates the class of persons among whom the power is to be exercised, and gives the estate over, on failure of the

Footnote

* Ambl. 379, 4 T. Rep. 296.† 4 T. Rep. 83.‡ 7 T. Rep. 531.§ 1 East. 229.|| 5 East. 548.

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In Lawe v. Davies , the devise was to B. and his heirs, lawfully to be begotten, that is to say, to his first, &c. sons successively to be begotten of the body of the said B.; and the heirs of the body of such first, &c. sons successively, &c. remainder over. That was held an estate for life in B. notwithstanding the subsequent limitation, to the heirs of the body of, &c. In the cases before cited, the words heirs of the body , or words equivalent, were contained in the instrument creating the limitations. Yet persons designated by those words were held to take by purchase. These words therefore may give less than the inheritance. In Goodtitle v. Herring , Lord Kenyon, speaking of

Footnote

* 1 Co. 66.† Palm. 359.‡ 2 Lev. 223. Raym. 278.§ Com. Rep. 289.|| 2 Lord Raym. 1561.** 2 Burr. 1100. 1 Black Rep. 265. et vide 3 Durnf. and East's Rep. a note on this case.†† 1 East. 264.

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The words of the will are to be weighed and considered, and also the fact that William was a natural son of the sister of the devisor. If the will had ended at the words “heirs of the body,” where it occurs in the limitation over, for want of appointment, William, though the previous estate is to him expressly for life, would undoubtedly have taken an estate tail. As to the argument founded on Seale v. Barter , * if it is supposed to show that such a power of appointment is sufficient to give an estate tail, no such thing was decided in Seale v. Barter : nor do we argue that such power of appointment cannot possibly subsist with an estate tail, or that it is inconsistent with its nature. The limitations in Seale v. Barter are very different from the limitations in this case. In Seale v. Barter the question arose upon the codicil, which the Court held ought to be construed without reference to, or not to be

Footnote

* 2 B. and P. 485.

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In this case there is no paramount intention that the estate should not go over, but upon indefinite failure of issue. The words “heirs of the body” must receive a limited construction. The testator himself translates the words, and shows what persons he means by “heirs of the body.” In the first instance, clearly he must mean the children . If so, can he in the subsequent use of the same words mean something different? To make the will consist with the construction attempted by the Plaintiffs in Error, a multitude of words must be struck out of the instrument, “ Share and share alike, as tenants in common; and if but one child, the whole to such only child .” All these words must be expunged. According to their construction, the former clause of these words is inconsistent, and the latter superfluous.The words, “in default of such issue,” must refer to the issue contemplated, as objects of the power of appointment, not issue indefinitely. Between a devise over to right heirs, and to a stranger, there is a material distinction. In the former case the party dies virtually intestate: for the devise is in

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The provision in default of appointment for the special event, if there should be but one child , that he should take the estate, manifests the intent of the donor, that the power should be exercised among children . There is but one case adverse to this construction, Doe v. Goldsmith . * It is an extraordinary argument to say that case is free from prejudice, because former cases were not there cited. That is rather a ground to impeach the authority of that case. If there is plain demarcation of the objects to which the words heirs of the body are applied, the power of appointment cannot be extended beyond them. The

Footnote

* 7 Taunt. 209.

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“Heirs of the body,” in the clause conferring the power, and the limitation in default of appointment, means such heirs within a limited time, the life of William, the donee of the power. In default of such issue , can only mean such specific issue as before designated. There is, therefore, a total absence of the supposed paramount intention to give the estate over, only upon indefinite failure of issue. If so, the secondary, as it is called, being in fact the only intent, must prevail.
There are no words of limitation superadded, and consequently the children must take for life, according to the doctrine established in Hay v. Earl of Coventry . * There the limitation was to F. C. for life, remainder to her first and other sons in tail male; and in default of such issue, to the use of all and every the daughters of F. C. as tenants in common; and in default of such issue to his right heirs. That it is to “children” in one case, and daughters in the other, makes no difference in principle; and the limitation, over, is in the same words. The argument in that case, was not that it was to be presumed the testator did not mean to give an estate tail to the daughters, because he had expressly given one to the sons; but on the contrary, that the gift to the sons furnished a presumption of a similar intention as to the daughters, as appears by the judgment of Lord Kenyon, in which, upon this point he says, “I cannot find any words in the will to warrant

Footnote

* 3 T. R. 83.

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In White v. Collins , * the first limitation was to F. for life, and after his death to the heir male of his body for life; and the limitation over was for default of such heir male. It was held to mean such as before mentioned, that is, an heir male who was to take for life. In the present case, for want of words of inheritance, it is, by construction of law, an estate for life in the children. That circumstance does not, in principle, make it different from the case of White v. Collins , where the estate is given to the heir expressly for life. These are cases directly applicable, as authorities to the words of this will.In the cases cited on behalf of the Plaintiff in Error, there was a paramount intent sufficient to over-rule the secondary intent. Robinson v. Robinson is the strongest of that class of cases, having words clearly indicating the intent, that the remainder should not take effect, but upon failure of all the issue of the particular tenant. The word used in the devise in that case, was son in the singular number. It was argued that the word was intended as nomen collectivum , meaning all the heirs for ever, and that the limitation over was to be construed and guided by that intent. In the certificate that argument was adopted: and it is to be noticed that in Robinson v. Robinson , the

Footnote

* Comyns. Rep. 289.

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In Wharton v. Gresham , * there was an express limitation in tail.As to the dictum quoted from Jones v. Morgan , there is no doubt that to enable all the heirs to take by descent, the ancestor must have an estate of descendible quality. That principle is not denied; but the words of the will in that case were different from the words in this.In Bennet v. Lord Tankerville , † the limitation over was in case of dying without issue of the body , referring to the words heirs of the body , which had been used before. The intent that all the issue should succeed in turn, could not be effectuated without giving an estate tail to the parent, which necessarily enlarged the estate for life. In Doe v. Aplin , Chandler v. Smith , Doe v. Cooper , and Pierson v. Vickers , the intent is clear, that the estate should not go over, but upon indefinite failure of issue. And it is to be observed, that in all those cases, the limitation over is to a stranger, who is a gratuitous object of the testator's bounty, and must bring himself within the clear intent. In this devise the limitation over is to the heir.Frank v. Stovin is the case of an estate tail by implication. So in Colson v. Colson , Mogg v. Mogg , and Doe v. Webb , ‡ which were decided on special

Footnote

* 2 Blac. Rep. 1083.† 19 Ves. 170.‡ 1 Tau. Rep. 234. The question in this case was upon a devise to F. and M. and A. and the heirs of their bodies respectively as tenants in common, whether cross-remainders could be implied between three devisees. It was decided in the affimative,

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In Hodges v. Middleton , † the word “ estate ” occurred in the first limitation, and it was given over on failure of children , that is, of children indefinitely, which creates an estate tail by implication, upon the same principle as the words issue, &c . Lief v. Saltingstone is not applicable. The power in that case was altogether different. The decision in that case established only this doctrine, that a power of appointment may extend to an appointment in fee. That is not inconsistent with an estate for life in the donee, but the contrary. By a decision in favour of the Plaintiff in Error, the doctrines of implication would be carried beyond all former bounds. Here the words of the will clearly import the immediate children of the tenant for life. These were manifestly the heirs of the body in the

Footnote

on the ground of manifest intent appearing in the will that the estate should not be divided, but upon the limitation over go as an entirety.—See Roe v. Clayton , 6 East. 668, 1 Dow, 384.* By Lord Holt in Broughton v. Langley , 2 L. Raym. 873. 2 Salk. 679.† Dougl. 431.

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Gretton v. Haward , * Goodtitle v. Woodhull , † Doe v. Goff , ‡ are all authorities in favour of the Defendant in Error, applicable generally in language and in principle, if not in precise circumstance. As in those cases, so in this, “such issue” must mean such descendants of William, to whom he might, and by the will it was intended, he should appoint, that is, children. No paramount intent is to be collected from the circumstances of the case. The fact that William was an illegitimate son, is adverse to his claim.The Lord Chancellor . § “It is a general rule of law, to be collected from a consideration of all the cases, that a particular intent expressed in a will, must give way to a general intent. It is surprising that so much pains should have been taken to establish such a rule, the effect of which is, usually, to enable the first taker to destroy both general and particular intent. The words heirs of the body, prima facie , mean all descendants; and it is likewise a rule of law,

Footnote

* 6 Tau. 94.† Willes, 592. The devise, in that case, was to a son for his life, and to his male children for their lives , and to the male children descending from them. The Court held, it was a life estate only in the son.‡ Upon the citation of Doe v. Goff , Lord Redesdale observed, that the words there, “‘if such issue should depart this life before twenty-one,’ &c.” were insensible, if the estates are given to the children for life. The estates in such case would go over, whether they die before or after.—See the judgment, post, p. 58.§ At the conclusion of the reply.

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15th June.The Lord Chancellor . * The question to be decided in this case is expressed in the words to be found in the errors assigned, the principal of which is, that the Court, by their judgment, have decided “that the said William Wright took only a life estate under the said will of the said E. Pershouse, with remainder to his children for life; and that the recovery suffered by the said William Wright, and Mary his wife, and Edward Wright, was a forfeiture of their estate. Whereas, the said R. Jesson, J. Hately, W. Whitehouse, J. Watton, E. Dangerfield the elder, and T. Dangerfield, allege for error, that the testator intended to embrace all the issue of the said William Wright, which

Footnote

* On moving the judgment.

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This is a short will. The decision in the Court below has proceeded upon the notion, that no such paramount intent is to be found in this will. Here, I must remark, how important it is, that, in preparing cases to be laid before the House, great

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It has been powerfully argued (and no case was ever better argued at this bar), that the appointment could not be to all the heirs of the body in succession for ever, and, therefore, that it must mean a person, or class of persons, to take by purchase; that the descendants in all time to come could not be tenants in common; that “heirs of the body,” in this part of the will, must mean the same class of persons as the “heirs of the body,” among whom he had before given the power to appoint;

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Lord Redesdale . There is such a variety of combination in words, that it has the effect of puzling those who are to decide upon the construction of wills. It is therefore necessary to establish rules, and important to uphold them, that those who have to advise may be able to give opinions on titles with safety. From the variety and nicety of distinction in the cases, it is difficult, for a professional adviser, to say what is the estate of a person claiming under a will. It cannot at this day be argued, that, because the testator uses in one part of his will words having a clear meaning in law, and in another part other words inconsistent with the former, that the first words are to be cancelled or overthrown. In Colson v. Colson , it is clear that the testator did not mean to give an estate tail to the parent. If he meant any thing by the interposition of trustees to support contingent remainders, it was clearly his intent to give the parent an estate for life only. It is dangerous, where words have a fixed legal effect, to suffer them to be controlled without some clear expression, or necessary implication. In this case, it is argued, that the testator did not mean to use the words, “heirs of the body,” in their ordinary legal sense, because there are other inconsistent words; but it only follows that he was ignorant of the effect of the one or of the other. All the cases but Doe v. Goff decide that the latter words, unless they contain a clear expression, or a necessary implication of some intent, contrary to the legal import of the former, are to be rejected. That the general intent should over-rule the particular, is not the most accurate expression of the principle

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In this case even admitting it to be the general intent of the testator, to give to William an estate only for life, the remainders to the children, might as easily be defeated, because William might, by agreement with the heir, have destroyed their estates before they arose. Suppose he had had a child who died, and then he had committed a forfeiture, the devisee over would have entered and enjoyed the estate. Suppose he had several children, and some had died, and some had been living, the

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Judgment reversed.*** Franklin v. Lay . My friend, Mr. Sugden , has kindly furnished me with the following note of this case:—
“I give to my grandson, John Franklyn, all that my moiety or half part of and in all that messuage, tenement, and farm, lands and premises, situate, lying, and being in Great Bromley, in the county of Essex, called the Brush Farm, as the same is now in the occupation of my nephew, Wm. Barnard, of Lawford, in the same county, farmer, to hold the said moiety of the said farm, lands, and premises unto my grandson, John Franklyn, and to the issue of his body lawfully to be begotten; and to the heirs of such issue for ever, but subject and chargeable with the payment of the mortgage of 400 l . and interest to my brother-in-law, Thomas Barnard, of Lawford aforesaid, farmer. But if my said grandson, John Franklyn, shall die without leaving any issue of his body lawfully begotten, then I give and devise the said moiety of the said messuage, farm, lands, and premises, with the appurtenances, unto my said nephew, Wm. Barnard, and to his heirs for ever. Held to be an estate tail in John .” Franklin v. Lay , Vice-Chancellor, May 3, 1820.