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1798.

BURNSALL

Davy,

reftrain the general expression of heirs, to heirs in tail. 19H. 6. 74.6. cit. Dougl. 266. in notis, and if that be the case, where a fee is expressly given, a fortiori it will be fo where the estate given is not so large. The case of Doe v. Laming, 2 Burr. 1100., is much stronger than this, for “heirs” is a more technical expression than “iffue,"and yet the Court there in order to effectuate the general intention of the teftator restrained the estate of the firft taker to an eftate for life. So in Doe v. Reafon, cit. Doe v. Holmes, 3 Will. 245. Ryder Ch. J. said, that “after the death of the tenant for life, the islue (which in a will is a word that operates as effectually to make an eftate tail as the words heirs of the body do in a deed) are to take as purchasers, for the devise is to the issue of the body of the niece, and to the heirs of such itfue.” The words used by the devisor in this case “ without leaving lawful issue” are fufficient to give an estate tail; nor does the addition of the words “ if they shall all die under the age of twenty-one years” make any difference, for the remainder could not take effect till failure of issue. Soulle v. Gerrard, Cro. Eliz. 525. Moor 422. Brownsword v. Edwards, 2 Vez. 248. If the children were to take an estate in fee, why should the teftator have limited over to Peter Davy, and have required him to obtain an act of parliament in order to take the name of Burnfall, fince if they were once possessed of a fee they might dispose of it to a stranger to that name? Such a construction would defeat his apparent intention of giving the estate over to a collateral relation who should take his name, on failure of iffue of the children of M. O. At all events, whether the children of M. O. would have taken an estate in fee or in tail, Peter Davy is equally entitled to the leasehold.

In Doe v. Lyde, 1 Term Rep. 596. it was laid down as a general principle, that “ where there is an express limitation of a chattel, by words, which if applied to a freehold would create an express estate tail, the whole interest vests absolutely in the first taker, and a kimitation over of such a chattel is too remote to take effect. But where there is no fuch express legal limitation the Court will confider the intention of the testator.” The recovery in this case certainly could not affect the leaseholds, for they did not pass to make a tenant to the præcipe.

Palmer in reply. No doubt a remainder limited to a person in being, after preceding limitations to persons not in being, may open and let in those persons when they come in esse; but the idea of Festing and afterwards devesting would destroy the distinction be

tween

7798.

LURNSALL

DAVY.

tween vestedand contingent remainders. As long as it is uncertain whether the party willevertake any thing, the remainder is contingent, but a vefted remainder takes effect immediately, in intereft, and will take effect in poffeflion by lapse of time; it may open, but continues vested because certain. The remainder to Peter Davy was therefore contingent, since if any of the children had arrived at the age of twenty-one, he could have taken nothing. The case of Doe v. Hainewright proves nothing, for cross remainders were there created, though not in technical language. Indeed the distinction with respect to cross remainders is this, between two the presumption is in favour of them, between more than two, againit (a) them. If the Court can imply cross remainders in this case, they might have been implied in Doe v. Any lin. It is not disputed that if the estate had been limited to the flue of M.O. and their heirs, the word “heirs” might be qualified to mean heirs in tail; but here no such qualification can take place, as no such words of limitation are added. There is no cafe where the Court has enlarged the eftate of the second taker for the purpose of effectuating the general intention of the testator; if in Robinson v. Robinson they could have done so, they might have effectuated the intention of the testator more completely.

Eyre Ch. J. Technical rules are not to be relied upon in explaining the intention of teftators : and yet cases of intention are much embarrassed by authorities. If this case were stripped of all authorities I would inquire what was the intention of the teftator, as it appeared from the circumstances of his family, and the words of the will: and next I would examine the rules of law, to see how far the intention of the teftator was confiftent with them. An anxiety to effectuate what has been considered as the leading intention of teftators has introduced all the difficulty in this kind of cases. It often happens that a teftator means to limit his estate in a way which the law does not allow. The only words in this case which raise any difficulty in my mind are these 66 if they shall all die under the age of twenty-one years;” if they were omitted it would be a simple cafe. There were two branches of the teftator's family on whom, being the principal objects of his bounty, he intended to settle his property in fucceffion, and on failure of whom he intended that it should go over to Peter Davy. He devises first, to Mary Owsiwick, and secondly to the issue of her body: if the first taker died without issue he meant that the

() Pery and Others v. W bite, in Error, Corp. 780.

estate

Davy.

234.

efvate should go to another person; again, if the first taker left 1798. iffue, and they all died without issue, the objects of the testator's

BURNSALL bounty in his own family being gone, the property was to go over. This being clearly the intention, how is it to take effect? If it were not for the words “ if they shall all die under the

age

of twenty-one years," I should be of opinion that this must be conftrued to be an estate for life to M. O. remainder in tail to her illue as purchasers, with cross remainders to every one of that family, and then over to the next branch. But I am at a loss to know what to do with those words. If I were perfectly satisfied with the rejection of the word“amongst”in Doev. Applin(a) I would • Easi's Rep. reject them, and consider this as a devise over in case the issue of M. O. fhould die without leaving lawfulifsue of any of their bodies.

BULLER J. I incline to think that it will be impossible to reject the words “if they shall all die under the age of twentyone years." There is a circumstance attending this will which might give reason to suppose that the teftator had something of a legal understanding. Suppose that he knew for how long a time he could tie up his property? By the words of the will the eftate is given to Mary Owstwick, and the heirs of her body as tenants in common if more than one; now “tenants in common" can only apply to the issue, for she and one of the issue could never take as tenants in common; the power of leasing given to M. O. while in possession confirms me in my opinion that the was to take an eftate for life only, and that the whole estate was to go to heriffue after her death. Possibly the testator reasoned thus: " I will give an eftate for life to M. O. with an estate tail to her children till they arrive at twenty-one, and then a fee, at which time the law will give them a fee by means of a common recovery.” If this conftruction be right the remainder to Peter Davy is contingent; for it does not folely depend on the determination of the preceding eftate. If a child of M. O. had attained the age of twenty-one, and afterwards died without iffue, the estate would have

gone to Peter Davy, for the contingency must happen before the estate can veft at all. With respect to the leasehold property it is perfectly clear, that it cannot be touched by fine or recovery.

The Court took till this term to confider of their opinion, when the following certificate was sent to the Lord Chancellor;

We are of opinion, 1st, That under the willof this testator Mary Owstwick otherwise Ellardtook an estate for life in the teftator's freehold estates with contingent remainders to the other persons mentioned in the said will, which contingent remainders were barred (a) Vid. Doe e Bear v. Halley, 8 T.R. 7. n. (c)

by

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BURNSALL

Davy,

by the fines and recoveries levied and suffered by Mary Owstwick, by force whereof Mary Owstwick became feised of an estate in fee in the said eftates.

2dly, That Mary Ow/twick took an estate for life in the said testator's leasehold estates.

3dly, That under the said will Peter Davy took an estate for life in remainder in the said freehold estates on the contingency therein exprefled, which eftate with all the subsequent limitations were afterwards barred by the fines and recoveries fuffered by Mary Owstroick.

4thly, That under the said will Peter Davy became absolutely
entitled to the teftator's leasehold estates on the death of Mary
Ow/twick without issue.
12th Feb.

Jas. EYRE.
F. BULLER.
J. HEATH.
G. ROOKE.

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Feb. 12.
2 Befi & Pul.

Shaw v. EVERETT,
I 2. 72. 549.
To affumpfit on

E BLANC Serjt. Thewed cause against a rule nifi for pleading a bill of exchange several matters to affumpfit on a bill of exchange, viz. the Court will not allow a De- ift, The general issue. 2dly, That the bill was given on a stockfendant to plead jobbing transaction contrary to 7 Geo. 2. c. 8. He contended and that the bill' that any thing which went to impeach the confideration of the was giren on a stock-jobbing

note might be given under the general issue, and that the only transaction con. object of this application on the part of the Defendant was to get trary to 7 Geo. 2. over the time in which a notice of trial might be given for the c. 8.

next fittings, by introducing a long replication.
And the Court being of this opinion,

Discharged the Rule. (a)
Adair Serjt. for the Defendant.

1 New Rep. 123.

(2) In this term in a case of Angerflein rance was discharged by the Court; Sbep, v. Vaughan a fimilar rule for pleading, berd Serjt. for the Plaintiff; Heyword ift, the general issue, and 2dly, alien ene. Serjt. for the Defendant. Vid. 2 Bl. 1326. my, to a declaration on a policy of insu.

Mr. J. Heath was absent from the 29th of January to the

end of the Term from indifpofition.

THE END OF HILARY TERM.

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In the Thirty-eighth Year of the Reign of GEORGE III.

contracts made

Court allow a

April 26th,

Vide autein this M.COLLAM v. Carr.

cale impeached, 8 Eaf, 28.

14 Eas, 302. ASSUMPSIT for seaman's wages. The declaration contained the decide on

two counts, one on a special contract, and another for work Conscience does and labour generally. At the trial the Plaintiffattempted to prove not extend

to that he had been pressed out of the ship with the collusion of the

on the high seas; Defendant, but failed to establish that fact. The Defendant had nor will the paid him a certain fum as wages up to the period of his quitting fuggefion for the ship, but having made a small mistake in calculating the time; double cofts un

der 23 6.2.c. 33. the Plaintiff obtained a verdict for il. 25. on the last count.

where the origiShepherd Serjt. now moved for leave to enter a suggestion on ginal debt being the Roll, under 23 Geo. 2. c. 33. that the Defendant was resident by a balance of in Middlesex, and liable to be summoned to the County Court. acoounts been He contended, that as the principal part of the debt had been that fum. actually paid, and was not merely to be done away by a set-off, the Plaintiff had no demand on the Defendant beyond the fum of il. 2s. at the time when he commenced his action.

EYRE

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