페이지 이미지
PDF
ePub

1798.

WRITETOCK

HIDDON.

annuity of 10l. for life to his daughter E. Heddon wife of W. Heddon of Baldersby, Yeoman, charged on the same eftates, and for her separate use; he devised as follows: “ Item I give “ devise and bequeath unto my grandson John Heddon fon of “ 18. Heddon of Baldershy aforesaid Yeoman all my freehold “ leasehold fountainshold lands tenements hereditaments and “ citates whatsoever to him his heirs and assigns for ever, fave “ and except as hereinafter mentioned, that is to say, provided “ that in case my faid fon John Whitelock shall have any fon

or fons begotten and born in lawsul matrimony then I give “ devise and bequeath all my faid freehold leasehold fountain« fhold lands tenements hereditaments and estates whatsoever “ hereinbefore given and devised to my grandson John Heddon “ to such male issue as my faid son John Whitelock shall or may “ have at the time of my faid grandson John Heddon attaining “ the age of twenty-one years, but I will order and direct that “ in case my faid fon John Whitelock fhall have any male iffue 56 then I order and direct that the said John Heddon shall re“ ceive the rents and profits of my faid freehold leafehold “ fountainshold lands tenements hereditaments and estates what“ foever until he shall attain the said age of twenty-one years “ as above mentioned.” He next proceeded to give feveral legacies to his grandchildren, the Heddons, to some of his friends, and to the poor of Bishop Monckton in the county of York, and then devised thus: “ Item as to all the rest and residue of “ my real and personal estates of what nature or kind foever “ not hereinbefore disposed of I give devise and bequeath the “ fame to my grandfon John Heddon his heirs executors ad66 miniftrators and assigns for ever.” Thomas Whitelock the teftator died 28th December 1780, leaving John Whitelock his only fon and heir at law. The devised estates were taken poffeffion of for the use 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 those eftates. After the death of Thomas Whitelock the teftator, and before John Heddon attained the age of twenty-one, John Whitelock had a son 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 en pent with a child which was born 3d August 1792, being fomething less than three months after John Heddon attain

[merged small][merged small][ocr errors]

age

ing the age of twenty-one. This child was christened Thomas, and died 24th January 1795.

The quettion for the opinion of the Court was, Whether the above-named John II hitelock the first fon of the Plaintiff John Whitelock, or the faid Thomas IV hitelock the second fon of the faid Plaintiff' John Ilhitelock, or either of them, were or was entitled to any and what estate 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 grandson John Heddon attaining the “ of twenty-one years' are not defcriptive of the persons 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 sa mere at the time of John Hed:lon's attaining his age of twenty-one, comes within the description of the above words. Doe d. Clarke v. Clarke, 2 H. Bl.

1.399. Doe d. Lancashire v. Lancashire, 5 T.R. 49. Miller v. Turner, i Vez. 85. (a) (the Court said that point need not be contended, as it was now fully settled). However it is inmaterial which of the fons did take; I only contend that if either took, the eftate given was a fee. The teftator devised all his ettates to his grandfon by his daughter, but foreteeing that his fon might have a fon, he meant to fubititute that fon, if any such there should be, in the place of the first devilee, who was then living. Now if the fons of the fon shall not be held to have taken a fee, they will have a less estate than the fon of the daughter. Besides a devise “ of all my eftate or eltates” will carry a fee unless the Court fees words to narrow the construction. As to the supposed words of limitation which are fuperadded; “ male illue" may be conftrued either as words of purchase or limitation, according to the intent of the testator, and the residuary claufe may have been dictated by unnecessary caution. Though the Plaintiffs will only be entitled to the freehold on the idea that either John or Thomas Whitelock took a fee, since nothing has been done to bar the remainders, yet if an estate-tail in the freehold pafled either to John or Thomas Whitelock, the leasehold will have vested absolutely in them, and the Plaintiffs will be entitled to that part of the estate; unless indeed the nature of the tenure under the Archbishop of York may make a difference. If " male issue of John Whitelock"

(s) Long v. Blackall and others, 7 Term Rep. 100.

1798.

WHITELOCK

HEDDON.

mented upon.

be construed to mean all male descendants of John Whitelock, so long as there shall be any, then the first and other fons muft take successively as tenants in tail male, or all the fons must take as joint-tenants with several inheritances in tail male.

Shepherd Serjt. for the Defendants. John Whitelock took only an estate for life. The express words of the will give to John Heddon an estate in fee; and when the teftator uses the fame words of defcription in the provisional devise to the son of John Whitelock, which he employed in the devise to John Heddon, he only meant to denote the premises, and not the quantity of the estate. If it should be held that the fon of John Whitelock was intended to take a fee, then the refiduary clause must be rejected altogether as having nothing to operate upon. There is no case where the word “ estate” or “ eftates” has been held to give a fee, unless accompanied by other expreffions demonstrative of such 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 expression of Mr. J. Buller, which was thought to convey a contrary opinion, was there com

But it has been contended that the fons of John Whitelock by force of the words “ male issue" were to take an eftate-tail. Those words are only fynonimous to “ son or fons” before used, and though such a construction will give a better estate to the children of the daughter than to those of the son, yet that appears to have been the testator's intention; ist, From the circumstance 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 devisee.

Eyre Ch. J. I apprehend that upon the question submitted to us we shall have no difficulty in saying that John Whitelock the first fon took no estate at all. I cannot read the will in the way which has been suggested by my Brother Le Blanc, in order to give him a vested interest, before John Heddon attained the age of twenty-one: because I see nothing in the will which affords any fufficient ground for such a construction. Indeed that which is to be collected from the words of the will, warrants a contrary inference, the testator having declared that John Heddon should have the rents and profits until he should attain the age of twenty

With regard to the estate which Thomas Whitelock took, if it had been asked of the testator when he was making the disposition in question, what interest he meant that such a son being in

one.

HEDDON.

tentre fa mere at time of John Heddon attaining the age of 1798. twenty-one, should have, I think it very probable that he would

WHITELOCK have said, that such a fon should take an estate in fee; and probably he would not have thought of the limitation over. This question however has not been alked of the teftator, and it is but conjecture what answer he would have made if it had been alked; we therefore muft consider what he has said, and must put a reasonable construction on his words, with reference, where they are capable of different constructions, to the rest of the will. He has said clearly, that he meant to give an estate in fee-simple to his grandson John Heddon ; but that if his son John Whitelock should have a son or fons, then he meant to give a benefit to such of them as should be living at the time when John Heddon fhould attain the age of twenty-one. It is moft evident that he mcant all the fons of John Whitelock who should be living at the time when John Heddon should come of age,' to have a benefit of some kind or other : And the words " such male issue" must be construed to be so far fynonimous to son or fons, as that in fome manner they should 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 fuccession in tail male. In the strict acceptation of the words " such male iffue," taken with reference to the words “ fon or fons" before used, they mean no more than fon or fons; but when I consider that these fons were the sons of his own son, who it appears were to have the benefit of his bounty in preference to the son of his daughter, and that this word “ issue” is a collective term, capable of being descriptive either of person or interest, or both, I think it reasonable to understand the word “issue" in its largest sense, so as to deem it descriptive of an estate in tail male to the fons of John Whitelock, as many as there should be in order of succession. This is what the words will bear. As to the

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 sense, it does not convey a fee. I apprehend therefore that we shall certify, that Thomas Whitelock took an eftate-tail in the freehold.

BULLER J. The first question here will be on the sense of the word “eftate” as used in this will. There are many cases in which this word has received different interpretations. Noscitur a fociis. Look to the words which accompany and are connected with it. R4

What

[ocr errors]

1798.

WHITELOCK

HEDDON.
Po, 559-

What I said in a former case with respect to the word “ heredi-
taments” has been mis-stated. I never said that it would in all
cases 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
“estate” will not pass a fee in this case, the whole dispute with
respect to the freehold is at an end; for whether Thomas White-
lock took an eftate-tail, or for life, will make no difference;
though I concur in opinion with my Lord, that the words used
will give an estate in tail male.

HEATH J. I am of the fame opinion. The word “eftate"
must be taken according to the context. There is a case in
Eq. Caf. Abr. (a) where a man having devised the residue of his
goods, leases, mortgages, estates, debts, ready money, and other
goods whereof he was poflessed, the word “eftates” was con-
fined to personal estate, 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 manifest intent of the teftator to prefer the line of the son to that of the daughter.

Rooke J. I am of the same opinion. The word “eftate” or
6 estates” may or may not give a fee-simple, 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 pass, 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
son of his son, in preference to the grandfon by his daughter.

In Trinity Term, the following certificate was sent to the
Lord Chancellor.

We are of opinion, that John Whitelock, the first fon of the
Plaintiff John Whitelock, was not entitled to any estate under the
will of Thomas Whitelock his grandfather: and that Thomas
Whitelock, the second fon, took an estate in tail male in the estates
which the teftator held in fee-fimple: and that, in respect to the
leasehold estates for lives, he and his heirs male took as fpecial
occupants during the lives of the cestui que vies.

Jas EYRE.
12th June 1798.

E. BULLER.
J. HEATH.

G. ROOKE.
(a) i vol. p. 178. Wilkinfon v. Merryland, Cro. Car. 447.

1

« 이전계속 »