1798. WHITELOCK ข. HIDDON. 66 annuity of 10l. for life to his daughter E. Heddon wife of W. Heddon of Balderfly, Yeoman, charged on the fame eftates, and for her feparate ufe; he devifed as follows: "Item I give "devife and bequeath unto my grandfon John Heddon fon of "W. Heddon of Baldersby aforefaid Yeoman all my freehold "leafehold fountainfhold lands tenements hereditaments and "cftates whatsoever to him his heirs and affigns for ever, fave "and except as hereinafter mentioned, that is to fay, provided "that in cafe my faid fon John Whitelock fhall have any fon or fons begotten and born in lawful matrimony then I give "devife and bequeath all my faid freehold leafehold fountain"fhold lands tenements hereditaments and eftates whatsoever "hereinbefore given and devifed to my grandion John Heddon "to fuch male iffue as my faid fon John Whitelock shall or may "have at the time of my faid grandfon John Heddon attaining "the age of twenty-one years, but I will order and direct that "in cafe my faid fon John Whitelock fhall have any male iffue "then I order and direct that the faid John Heddon fhall re"ceive the rents and profits of my faid freehold leafehold "fountainfhold lands tenements hereditaments and estates what"foever until he fhall attain the faid age of twenty-one years 66 as above mentioned." He next proceeded to give feveral legacies to his grandchildren, the Heddons, to fome of his friends, and to the poor of Bishop Monckton in the county of York, and then devised thus: "Item as to all the reft and refidue of "my real and perfonal eftates of what nature or kind foever "not hereinbefore difpofed of I give devife and bequeath the "fame to my grandfon John Heddon his heirs executors ad"miniftrators and affigns for ever." Thomas Whitelock the teftator died 28th December 1780, leaving John Whitelock his only fon and heir at law. The devifed eftates were taken poffeffion of for the ufe of John Heddon the firft devifee, till he attained the age of twenty-one years, and when that period arrived, viz. 21ft May 1792, he entered on thofe eftates. After the death of Thomas Whitelock the teftator, and before John Heddon attained the age of twenty-one, John Whitelock had a fon born named John, who died when five weeks old, and before John Heddon attained twenty-one. At the time of John Heddon attaining the age of twenty-one, the wife of John Whitelock was enfient with a child which was born 3d August 1792, being fomething lefs than three months after John Heddon attain ing the age of twenty-one. This child was chriftened Thomas, and died 24th January 1795. The queftion for the opinion of the Court was, Whether the above-named John Whitelock the firft fon of the Plaintiff John Whitelock, or the faid Thomas Whitelock the fecond fon of the faid Plaintiff John Whitelock, or either of them, were or was entitled to any and what eftate under the will of the faid Thomas Whitelock their grandfather in the estates thereby devised ? Le Blanc Serjt. for the Plaintiff. The words of the will," at "the time of my faid grandfon John Heddon attaining the age "of twenty-one years" are not defcriptive of the perfons who are to take, but only of the time at which they are to take. If this be true, then an intereft vefted in the eldeft infant John Whitelock as foon as he was born. At any rate however the fecond fon T. Whitelock, who was in ventre fa mere at the time of John Heddon's attaining his age of twenty-one, comes within the defcription of the above words. Doe d. Clarke v. Clarke, 2 H. Bl. 399. Doe d. Lancashire v. Lancashire, 5 T.R. 49. Miller v. Turner, 1 Vez. 85. (a) (the Court said that point need not be contended, as it was now fully fettled). However it is immaterial which of the fons did take; I only contend that if either took, the eftate given was a fee. The teftator devifed all his eftates to his grandfon by his daughter, but forefecing that his fon might have a fon, he meant to fubftitute that fon, if any fuch there fhould be, in the place of the firft devifee, who was then living. Now if the fons of the fon fhall not be held to have taken a fee, they will have a lefs eftate than the fon of the daughter. Befides a devife ❝ of all my eftate or eltates" will carry a fee unlefs the Court fees words to narrow the construction. As to the fuppofed words of limitation which are fuperadded; "male itlue" may be conftrued either as words of purchase or limitation, according to the intent of the teftator, and the refiduary claufe may have been dictated by unneceffary caution. Though the Plaintiffs will only be entitled to the freehold on the idea that either John or Thomas Whitelock took a fee, fince nothing has been done to bar the remainders, yet if an eftate-tail in the freehold paffed either to John or Thomas Whitelock, the leasehold will have vested abfolutely in them, and the Plaintiffs will be entitled to that part of the eftate; unless indeed the nature of the tenure under the Archbishop of York may make a difference. If "male iffue of John Whitelock" (a) Long v. Blackall and others, 7 Term Rep. 100. 1798. WHITELOCK V. HEDDON. be conftrued to mean all male defcendants of John Whitelock, fo long as there fhall be any, then the firft and other fons muft take fucceffively as tenants in tail male, or all the fons muft take as joint-tenants with feveral inheritances in tail male. Shepherd Serjt. for the Defendants. John Whitelock took only an eftate for life. The exprefs words of the will give to John Heddon an eftate in fee; and when the teftator ufes the fame words of defcription in the provifional devife to the fon of John Whitelock, which he employed in the devife to John Heddon, he only meant to denote the premises, and not the quantity of the eftate. If it fhould be held that the fon of John Whitelock was intended to take a fee, then the refiduary claufe must be rejected altogether as having nothing to operate upon. There is no cafe where the word "eftate" or "eftates" has been held to give a fee, unless accompanied by other expreffions demonftrative of fuch an intention. In Denn d. Moore v. Mellor, 5 T.R. 563. it was held that the word "hereditaments" would not give a fee, and an expreffion of Mr. J. Buller, which was thought to convey a contrary opinion, was there commented upon. But it has been contended that the fons of John Whitelock by force of the words "male iffue" were to take an eftate-tail. Thofe words are only fynonimous to "fon or fons" before used, and though fuch a conftruction will give a better eftate to the children of the daughter than to thofe of the fon, yet that appears to have been the teftator's intention; ift, From the circumftance of his having given to John Heddon the rents and profits at all events, till he attained the age of twenty-one; and 2dly, From his having made him refiduary devifee. EYRE Ch. J. I apprehend that upon the queftion fubmitted to us we shall have no difficulty in faying that John Whitelock the firft fon took no eftate at all. I cannot read the will in the way which has been fuggefted by my Brother Le Blanc, in order to give him a vefted intereft, before John Heddon attained the age of twenty-one: becaufe I fee nothing in the will which affords any fufficient ground for fuch a conftruction. Indeed that which is to be collected from the words of the will, warrants a contrary inference, the teftator having declared that John Heddon should have the rents and profits until he should attain the age of twentyWith regard to the eftate which Thomas Whitelock took, if it had been asked of the teftator when he was making the difpofition in question, what interest he meant that such a fon being in one. ventre ventre fa mere at time of John Heddon attaining the age of twenty-one, fhould have, I think it very probable that he would have faid, that fuch a fon fhould take an eftate in fee; and probably he would not have thought of the limitation over. This queftion however has not been asked of the teftator, and it is but conjecture what anfwer he would have made if it had been afked; we therefore muft confider what he has faid, and muft put a reasonable conftruction on his words, with reference, where they are capable of different conftructions, to the reft of the will. He has faid clearly, that he meant to give an estate in fee-fimple to his grandfon John Heddon; but that if his fon John Whitelock fhould have a fon or fons, then he meant to give a benefit to fuch of them as fhould be living at the time when John Heddon fhould attain the age of twenty-one. It is moft evident that he meant all the fons of John Whitelock who should be living at the time when John Heddon fhould come of age, to have a benefit of fome kind or other: And the words "fuch male iffue" must be conftrued to be fo far fynonimous to fon or fons, as that in fome manner they fhould all partake of this benefit. Now there are but two ways in which this can be effected, either by their taking as joint-tenants, or in fucceffion in tail male. In the ftrict acceptation of the words "fuch male iffue," taken with reference to the words "fon or fons" before ufed, they mean no more than fon or fons; but when I confider that these fons were the fons of his own fon, who it appears were to have the benefit of his bounty in preference to the fon of his daughter, and that this word " iffue" is a collective term, capable of being defcriptive either of perfon or intereft, or both, I think it reasonable to understand the word "iffue" in its largest fenfe, fo as to deem it defcriptive of an estate in tail male to the fons of John Whitelock, as many as there fhould be in order of fucceffion. This is what the words will bear. As to the argument, that a fee is conveyed to the fons of John Whitelock by the word "eftates," I take the rule to be, that it may convey a fee if the Court fees, on the whole context of the will, that the teftator intended that it should do fo; but that, in its ftrict technical fenfe, it does not convey a fee. I apprehend therefore that we shall certify, that Thomas Whitelock took an estate-tail in the freehold. BULLER J. The first question here will be on the fenfe of the word "eftate" as ufed in this will. There are many cafes in which this word has received different interpretations. Nofcitur a fociis. Look to the words which accompany and are connected with it. What R 4 1798. WHITELOCK V. HEDDON. 1798. WHITELOCK V HEDDON. What I faid in a former cafe with respect to the word " hereditaments" has been mif-ftated. I never faid that it would in all cafes carry a fee; but that, accompanied with other words, it might carry a fee. Lord Kenyon thought it never could, and that was the only point in which we differed. Now if the word "eftate" will not pafs a fee in this cafe, the whole dispute with refpect to the freehold is at an end; for whether Thomas Whitelock took an eftate-tail, or for life, will make no difference; though I concur in opinion with my Lord, that the words ufed will give an eftate in tail male. HEATH J. I am of the fame opinion. The word "eftate" must be taken according to the context. There is a cafe in Eq. Caf. Abr. (a) where a man having devifed the refidue of his goods, leafes, mortgages, eftates, debts, ready money, and other goods whereof he was poffeffed, the word "eftates" was confined to perfonal eftate, being coupled with chattels. It may give an estate for life, in tail, or in fee, according as the intention of the teftator appears. Here I think it carried a fee-tail, from the manifeft intent of the teftator to prefer the line of the fon to that of the daughter. ROOKE J. I am of the fame opinion. The word "eftate" or "eftates" may or may not give a fee-fimple, according to the context. There is no expreffion in this will to fhew, that it was the teftator's intention to defcribe, by the word "eftates," the quantity of interest which was to país, but only the premises; and I think it does appear that he meant to give an eftate-tail, it having been his manifest intention to give an inheritance to the fon of his fon, in preference to the grandfon by his daughter. In Trinity Term, the following certificate was fent to the Lord Chancellor. We are of opinion, that John Whitelock, the first fon of the Plaintiff John Whitelock, was not entitled to any eftate under the will of Thomas Whitelock his grandfather: and that Thomas Whitelock, the fecond fon, took an eftate in tail male in the eftates which the teftator held in fee-fimple: and that, in respect to the leafehold eftates for lives, he and his heirs male took as fpecial occupants during the lives of the cefiui que vies. 12th June 1798. JAS EYRE. F. BULLER. J. HEATH. G. ROOKE (a) 1 vol. p. 178. Wilkinson v. Merryland, Cro. Car. 447. |