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1798.

DOE ex dem.

DACRE

DACRE.

case, i Leon. 285. 3 Leon. 106. Holcroft's case, Moore 486 and 520. Holt v. Burley, 2 Vern. 651. Besides there are many cases in which the Court has even added words with a view to effectuate the apparent intention of the testator. Spalding v. Spalding, Cro. Car. 185. Evans v. Astley, 3 Burr. 1570. White v. Barber, 5 Burr. 2703. Ambl. 701. The word " default," in law, means failure, whether there have been fons, and such fons have died, or whether there have been any fons. Thus if issue die without leaving issue, they are said to have died without issue. In a formedon the writ always supposes the donee to have died without issue, and it is no variance if it appear that there has been issue, and that iffue has since failed. There is however one case in modern times which seems to militate againft the lessor of the Plaintiff, namely, Keene (a)

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(c) A note of that case to the following spective bodies, in whom the eftates should effect was read by Mr. Justice Buller, in become vested, should take the teftator's his judgment. Kerne ex dem. Pinnock &

Henry Dakins the teftator died ux, v. Dickson, B. R. M. 23 Geo. 3. ift Otober 1748, leaving his brother P.D.

In ejectment between these parties, tried and Grace the wife of one Philip Pinneck, before Lord Mansfield at the Guildball his niece and heir at law. P. D entered, Sittings after Eafter Term 1783, a special and on ist May 1749 died; after whose verdict was found, ftating (as far as is ma- decease Philip Pinnock and Grace his wife terial, as follows:

became seised. Philip Pinnock and Grace Henry Datings being seised in fee of the his wife had issue one son, Dakins Pinnock, premises in question, on the 5th Aug.1747, who was born after the death of the terdevised the same to his brother P. D. for tator and died an infant, and three daughlife, and after his decease to his niece Grace ters, namely Elizabetb, born in the lifePinnock for life, then to trustees to pre- time of the testator, and Mary and Grace, serve contingent remainders, and after the born after the decease of the teftator. Da. decease of P. D. and Grace Pinnocke " in kins Pinnock the fon, and Elizabeth the trust, and to and for the use and behoof of daughter, died without issue in the lifetima the first son of his niece Grace Pinnock, of Pbilip and Grace Pinnock ; Grace Pinlawfully to be begotten, and the heirs of rock, the mother, died ift August 1769, the body of such firit son lawfully issuing, leaving Mary and Grace: Pbilip Pinnok and for want of such issue to the second, died ift Márcb 1778. Mary, on ist third, fourth, fifth, and fixth, and all and June 1774, married James Dickson, and every other the son and sons on the body died in the lifetime of Pbilip Pinnock, her of his faid niece to be begotten, and the father, leaving Mary, the Defendant, her heirs of the body of such son and sons law, only daughter and heir at law. Gracz fully issuing, according to the seniority of Pinnock, the only surviving daughter of age and priority of birth, the elder and the Philip and Grace, intermarried with George heirs of his body to be always preferred Pinnock the lessor of the Plaintiff. Groce and take place before the younger and the the lessor of the Plaintiff and Mary the heirs of his body, and for want of such Defendant are co-heiresses at law to the iffue male then to ihe use and behoof of teftator. all and every the daughter and daughters The case was firft argued by Graban of his said niece Grace Pinnock thereafter for the Plaintiff, and Wilfon for the Deto be begotten; and for default of such fendant; after which Lord Mansfield desired issue then to the use and behoof of Richard that it might stand for a second argument, Corbin, and the heirs of his body lawfully and that the remainder-man might be heard; to be begotten; and for default of such accordingly it was again argued by the Soillue to the use and behoof of the second licitor General for the Plaintiff, Pigott for son of Gawin Corbin deceased, and the the Defendant, and Bower for the Reheirs of his body to be begotten for ever." mainder-man. For the Plaintiff it was Provided that R. Corbin, and the second contended, that the daughters took only son of G. Curbin, and the heirs of their re. eftates for life, or that if any thing more

was

1

DACRE

DACRE

ex dem. Pinnock v. Dickson, K.B. Mich. 1783. The words used 1798. in that case do not indeed materially vary from those now in question. But it is to be observed, that it was the interest of Dot ex dem. both parties in that case to glance at the words “ want of such iffue male,” because a vested remainder would have defeated the estate of both. Lord Mansfield saw that the remainder-man was interested, and ordered that he should be heard; but his case was never fully argued, no authorities were cited, nor was the Court reminded of any arguments from the tenor of the will. Besides, as the reason for putting a strict construction upon the words “ want of such iffue male," in that cafe, was in order to give effect to the manifest intention of the teftator, the Court may consider that case as an authority for construing similar words according to the intent of the teftator in this case.

Arguments on the part of the Defendant. The remainder over to the daughters is only a contingent devise, in the event of there being no fon; and the birth of a fon rendered such remainder void. It has been contended, that if this construction should prevail, the cross-remainders and ultimate limitation will be defeated; but as they are made to depend on an uncertain event, no argument can be drawn from them. No case has been cited to Thew, that the words “default” and “want” are synonimous; and the extensiveness of the word “iffue," with which they have been connected, is the reason why the cases, in which either of them have been used, have been decided in the same way. If the words " in default of such fons," shall be held to mean, “if such fons be not born, or, if born, when they die," the eftate-tail, before

was necessary to satisfy the intention of nerally, and" for want of such iffue male," the teftator, they took joint eftates for life, (which must mean sons,) over. If there. with remainders in tail to their children: fore the estate is to go over for want of for the Defendant it was infifted, that the fons, the contingeney on which the daughdaughters cook an estate-tail: and for the ters were to take has not happened, for Remainder-man, chat on the birth of a son, there was a son who cook, fo no want of the eítate-cail vested in him, and then the fons, and the event in which the daughters remainder over vested also.

were not to take has happened. I am fae Lord MANSFIELD. No case exactly tisfied with this construction, because it the same as this has ever been decided, or effectuates the intention of the teftator, as perhaps ever will be; but the case of (1) the daughters will take in fee. Briddon v.

Page, which occurred laft week, WILLES J. On such an embarrassed will

like it. In my private opinion i it is difficult to find out a right construc. think that the whole was a blunder; but tion. It is clear that the line of Corbin was that conjecture is not a foundation for a ju- not to take until after a general failure of dicial determination. We cannot supply a illue of the Pinnocks. The estate to the limitation to the issue of the daughters, for daughters is a joint-cenancy. Co. Lits. 182. the words are express. The estate is given Cook v. Cook, 2 Vern. 5456 to the sons and the beirs of their bodies ge- Judgment for the Plaintiff for one

moiety, and for the Defendant (1) Vid. pof, p. 261.

for the other moiety.

was very

DACRE.

Dacre.

1798. given to the fons, will be restrained to an eftate for life; fince, in

the event of the fons dying, the daughters would have a right to DoE ex dem. take. The Plaintiff therefore muft infift, that the words 6 default

of such sons,” mean “ default of such issue;" which will hardly
be assented to by the Court. All that was decided, in Tuck v.
Frensham, was, that the teftator intended to use the word
" heirs” in the same sense in both clauses of the will. The same
observation applies to the case in the margin of Dyer. In Ives
v. Legge, 3 T.R.488. in the note, where the remainder over was
held to be vested, the words were large enough to comprehend
the issue of the children, which the'word “ fons" is not. Even
the word “issue” has been restrained to “children." Doe v. Per-
ryn, 3 T.R.484. The interest of the remainder-man in Keene v.
Dixon was taken into confideration ; for Lord Mansfield defired
that he should be heard by his counsel, and considered it in his
opinion, though he clearly thought that the words “for want of
such issue male” created a contingency. Mr. J. Buller, alluding
to that case in Doe v. Perryn, 3 T.R.495. seems to have thought
that the priimpal point decided.

Eyre Ch. J. I think that we do not want the authority of
cases at this time of day to establish the rule of law on which
we are to proceed to be this: that, in the construction of a
will, whether the words used be technical or not technical, or
even of vulgar and common parlance, the Court is to put that
sense upon them, in which, on a fair confideration of the whole
context, they collect that the teftator intended to use them.
In this case, the words on which the difficulty arises are by no
means technical; they may import' many things, according to
the subject-matter; and we are to inquire in what sense the tef-
tator meant to use them. If we can discover that, the next con-
fideration will be, whether the words will bear that fenfe; or
whether we are tied down by any rule of law to understand them
in any other; though indeed I can hardly put fuch a cafe.
Taking a general view of the whole will, the intent of this testator
appears to me to be obvious. He meant to make provision for
each of his feven fifters and their children; and he meant, that
if either of his fifters or her children should fail within a given
time, that there should be a survivorship in favour of the other
fifters and their children: and he also intended, that if neither
of his fifters should have children, or if the children should all
die under twenty-one and without issue, another branch of his
family should take. In some event or other, he meant, not only

that

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DACRE.

that the fons should take an estate-tail, but also that the daughters 1798. should take such an estate, failing the fons. Then let us consider in what sense the teftator fuppoted that he had used the words Doe er dem. which constitute the limitation to the daughters. Immediately after the difpofition to the daughters, he says, “In case any of my faid seven fifters last mentioned shall die without leaving any issue of her body begotten, and that issue shall die before he or she shall attain his or her age of twenty-one years, then I give her share to my surviving fifters.” He gives an interest to the surviving fifters in the event of one fifter dying without either fon or daughter ; and expressly says therefore, that there shall be no furvivorship if any of the daughters should have issue either male or female, Did he not then suppose that he had used words fufficiently strong to give an eftate-tail to the daughters in the event of the fons dying without issue? Next comes the limitation to Dr. Trevor, which was to take place in the event of every one of the fifters dying without either sons leaving issue, or daughters leaving issue, and such iffue dying under twenty-one. Did

he not then understand, that by the original devise, and by the clause of survivorship, he had given over every share of each filter, to the fons first and their iffue; and that limitation failing, to the daughters and their iffue? . Would he have confined the clause of survivorship to the death of the fons and daughters of his fifters, under twenty-one and without iffue, if he only meant to give a contingent limitation to the daughters in the event of no fon being born? Or would he have clogged the limitation to Dr. Trevor with the existence of persons to whom he had not given any intereft? The next confideration is, whether the words will bear that construction which the teftator palpably intended to give them. I do not feel disposed to go all the lengths which some of the cases on wills would warrant. I am for allift. ing, to a reasonable extent, teftators, who are not always affifted by the best advice, and whose state of mind often partakes of the ftate in which their bodies are; and whose advisers, if they have a little knowledge of law, frequently make a strange mixture of technical and common words. When I have got at the teftator's meaning, I will, if possible, give such a conftruction to his words as may carry his meaning into execution; but if he has not exprefled his will in such words as can bear out his meaning, then the will muft take its effect according to the construction which the words will bear, and his intention will be defeated. In short, I will depart from the technical sense of words to effectuate the intention of teftators as far as possible, without violating the rules [

[ 258 ] of law. The words used in this case are, “ in default of such VOL. I.

fons."

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fons.” It is impossible to say, without reference to the context, what the meaning of these words is. I do not know a larger or loofer word than “default.” Abstracted from other words, what does it mean? In the expressions “judgment by default,” and

a juror making default,” we understand it differently. In its largest and most general sense it seems to mean, failing. It has been argued, that the birth of a son would satisfy the words, and shew that there was no default, and consequently defeat the remainder. Is there any reafonable ground for so confining the word “default,” as to make the mere birth of a fon destroy the contingency contrary to the plain sense of the teftator, whoclearly meant the default of such a fon as would take the benefit of his devise; whereas a son dying in the lifetime of his mother could take nothing ? By the word “default” the testator meant to de note the failure of that fon at some time or other. Without referring to the context, natural death is the circumftance which he may first be supposed to have pointed at: if there should be fons, and they should dic, then the daughters should take. But if we look to the context, it will appear that he meant failure of those fons to whom an interest was given by the former part of the de vife.(a) “Such” is a word of reference, and may be referred either to the individual person, taken abstractedly from any thing connected with him; or it is powerful enough, where the intent appears, to include every circumstance'added to the description of the person in the former part of the devise. The most obvious meaning of “such son,” in a provision of this nature, is, that fon to whom, and to whose issue, he had given an estate in the former instance. Whatever the daughters were to take, they were to take when the provision to the fons should be spent. If there were no fons there could be noissue: there might be sons, and there might or might not be iflue. A conveyancer might have thought right to add words to include every poffibleevent: though Holcroftscafe fufficiently shews that this was not necessary. But I do not intend to incumber myself with cafes. Decisions upon other words something like those in question, in other wills, where the whole context of those other wills must be goneinto, can afford very little affiftance. The case of Spalding v. Spalding, which I mentioned in the course of the argument, is not in point; but the principle, that the whole context of the will must be looked into to effectuate the

(a) In Lee's care, i Leon. 285. where a died without issue : it was held that upon the devile was to William, and if he depart death of John the lands were subject to be this world not having issue, then that the sold. Vid. etian, Goodwin v. Clark, 1 Lee. land should be sold, and William had a 35. con Jobu, and died, and John afterwards

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