the same quality. The life estate was given to trustees to permit Susanna not only to receive the rents and profits to her own use, but also to settle on any husband she might take the same or any part thereof for life. This implies a use given to her apart from her husband, which would require the intervention of trustees; so also would the maintenance which is provided for the education of a child during Susanna's life. The legal interest, therefore, during her life, was in the trustees; *and she, who had only the equitable estate, could not cut off legal remainders by suffering a recovery.

[*49

Wilson, contra. It is clear the testator did not intend the property to go over to collaterals, except on failure of issue of his daughter. The words "child,” "son," "issue," in wills, have been repeatedly construed, in such cases, as indicating a class; Bifield's case, cited in King v. Melling, 1 Ventr. 231, Milliner v. Robinson, Moor. 682, and Wyld v. Lewis, 1 Atk. 433, where Lord Hardwicke gives the reason for which that construction has been adopted. In Robinson v. Robinson, 1 Burr. 38, "son" was considered as nomen collectivum, and the father held to take an estate in tail male, though the devise to him was for his natural life "and no longer." So in Mellish v. Mellish, 2 B. & C. 520, "son" was interpreted as meaning any male descendant, and the reasons given by Bayley, J. and Holroyd, J. are applicable here. In Raggett v. Beaty, 5 Bingh. 243, "If G. B. die and leave no child lawfully begotten of his body,' was held to imply an indefinite failure of issue. In Broadhurst v. Morris, 2 B. & Ad. 1, a devise "to W. B. and his children lawfully begotten for ever, but in default of such issue at his decease to A. B.," was held to give W. B. an estate tail. Then, are the other parts of this will inconsistent with a like construction? The wife is empowered to settle the estate or any part of it on her husband if he should survive her; and it may be said that if she was to take an estate tail it is not likely such a provision would be made, because if the estate were of that nature he might take without any settlement, as tenant by the curtesy. But that would be only in case a child had been born, whereas the will gives power to settle on him, at all events; and it obliges the [*50 wife to add the condition of residence. It is true, if this was an estate tail, the daughter was enabled to defeat many of the testator's intentions by suffering a recovery; but, as Lord Tenterden observed in Doe dem. Garrod v. Garrod, 2 B. & Ad. 96, "the same consequence would happen in many of the cases in which the first taker has been held to have an estate tail, and in some that consequence had actually happened before the decision." It is said the provision of “a reasonable maintenance for the education of such child," shows that an individual child only was meant; but then it must be contended that the devise of the estate after the daughter's decease could attach only to a single child. The testator, however, says, "should my daughter have a child, I devise it to the use of such child;""should none of these cases happen" (one of which was the daughter's having a child) then I give my said estate to W. L., &c. That means, "should my daughter not have a child," which is the same as if he had said "a child or children."

Then, supposing an estate tail to have been devised, it was well barred by the recovery, for the daughter took a legal estate. A devise to A. in trust to permit B. to receive the rents and profits, gives the legal estate to B., Broughton v. Langley, 2 Ld. Raym. 873, Doe dem. Leicester v. Biggs, 2 Taunt. 109, Doe dem. Phillips v. Smith, 12 East, 455. The Court will not consider the trustees as having taken the legal estate unless the purposes of the will require that they should do so. Unless the trust for the daughter *amounts to a trust for her separate use, it does not require that the legal estate should be in the [*51 trustees. But it has frequently been held in equity that a mere trust to permit a married woman to receive the rents and profits of an estate or the interest of a fund to her own use does not amount to a trust for her separate usc.(a) In (a) See on this point Jacobs v. Amyatt, in a note to 1 Madd. 376; Johnes v. Lockhart in a note to Mr. Belt's edit. of Bro. Cha. Ca. vol. iil. p. 383.

this case, however, the devise gives also a power to appoint by the advice or consent of the trustees But there is scarcely any marriage-settlement in which some power is not given, to be exercised with such consent; that does not vest a legal estate in the trustees. It was not necessary for the purposes of this will that they should take such an estate. It cannot be said that the maintenance ordered for education of the child of Susanna required a legal estate in the trustees; if so, it might have been necessary that such legal estate should continue beyond her lifetime, and the trustees must have taken a fee, in which case Susanna's estate would be an equitable estate tail.

The testator evidently contemplated that in default of issue, his daughter should be enabled to suffer a recovery, or should have a power of appointment. He had a perfect confidence in her; his apprehensions seem to have been from the parties in remainder. He expressly declares that he does not mean to "restrain her as a tenant for life." In case of misconduct in the remaindermen, he recommends to her for want of issue to herself not to leave above a certain sum in legacies, (which cannot mean legacies of personalty, because the leaving of those would not depend upon her having or *wanting issue,) *52] and he advises her to entail the rest for the further support of his house. He must therefore have looked to her suffering a recovery, or exercising a power of appointment to bar the remainder-men, in case they should ill treat her, or prove immoral or bad members of society. Either, then, she took an estate tail, which is barred by the recovery, or she had a power of appointment, which is well executed by her will.

E. V. Williams, in reply. As to the first point, in the cases cited for the defendant, there were generally some words of inheritance used by the testator, which constrained the Court to hold that an estate tail passed, notwithstanding the expressed inconsistent intent. As to the second point, the trustees must have taken a legal estate during the lifetime of Susanna to enforce the condition of residence, which was a principal object of the testator. [PARKE, J. If so, the same observation would apply to the remainder by virtue of which you claim; for John Jones is to take on condition of residence if he shall be of age when the remainder vests in him; or if a minor, he is to give security to the trustees for residing when he shall come of age. LITTLEDALE, J. It was not necessary that the trustees should take a legal estate for the maintenance of Susanna's child: they could do all that was requisite as to that by the assistance of the Court of Chancery. It seems to me that the clause recommending to the daughter for want of issue not to leave more than 6007. in legacies, refers to the personalty.] Cur. adv. vult.

*53] *PARKE, J., in this term, delivered the judgment of the Court. The questions discussed in this case arise on the will of Henry Jones, and the one on which the argument has principally been, is what estate did the daughter of the testator, Susanna Maria, take? It being contended on the part of the lessor of the plaintiff, Mr. Jones, that she took only for life, and, consequently, the recovery was bad; and on the other side, for the defendant, that she took an estate in tail.

The will appears to have been drawn by the testator himself, and is one of those unfortunate instances of a person wishing to tie up his estate with limitations and upon contingencies, without knowing what language to use for the purpose.

The construction must be according to the plain and manifest intent of the testator, and although there be no words of limitation annexed to the devise in favour of the daughter, yet if the paramount intent cannot be satisfied without her taking an estate tail, and the language of the will will justify it, such must be the construction; and, upon the best consideration, we are of opinion. that she took an estate tail.

First with respect to the intent, the testator says, "if his daughter should die unmarried," he would not have his small estate, which he had been at the pains. VOL. XXIV.-3.

on any

of improving and enlarging, sold or frittered away after her decease, or left to any body who would be above residing upon it, but that it should be entailed, &c. Now, upon this a very strong inference arises, that the issue of the daughter if she married, were within his view, for he contemplates the possibility of the estate going over to the remainder-man in the event only of *his daughter [*54 dying unmarried; and this is made the foundation of the subsequent devise, for he goes on, "I therefore give, devise, and bequeath unto W. L., &c. all my real estate, but to permit my daughter, not only to receive the rents and profits to her own use, or to sell or mortgage any part if occasion require, but to settle husband she may take, the same or any part thereof should he survive her," but on certain conditions. Then he goes on, "But should my daughter have a child, I leave it to the use of such child, from and after my daughter's decease, with a reasonable maintenance for the education of such child in the mean time. Should none of these cases happen, I give and devise my said real estate from and after my said daughter's decease unto the said trustees, and the survivor of them, and the heirs of such survivor, to the use of my nephew John Jones," on certain conditions, "and to the first and every other son of the said John Jones." Now here the limitation over to the use of John Jones is only "if none of these cases should happen," of which the principal was his daughter leaving a child at the time of her death; which is equivalent to saying, if my daughter should die leaving no child; and shows an intent that the estate should only go over on failure of the issue of the daughter. If it were otherwise, if the daughter had had a child, and that child had died in her life time leaving issue, the estate would have gone over.

This brings us, secondly, to the consideration, whether the words will warrant the construction of the daughter taking an estate tail. At the the time of makthe will, and at the testator's death, the daughter was unmarried, and had no child. We think, then, that the word "child" was not a designatio personæ, but *comprehended a class, and this case is like Bifield's, cited and relied on by Lord Hale in King v. Melling, 1 Ventr. 231, "A devise to A., and if he dies not having a son, then to remain to the heirs of the testator. Son was there taken to be used as nomen collectivum, and held an entail:" and other cases to the same effect were cited in the argument.

[*55

Another question was raised in favour of the lessor of the plaintiff, that the recovery was insufficient in consequence of the estates not being of the same quality. But we think that there is no reason for making any distinction of this sort, and that the interest vested in the daughter of the testator was throughout of the same quality.

Being of opinion, therefore, that the daughter was seised of an estate tail, we think the recovery was good. The postea in consequence must be delivered to the defendant. Postea to defendant.

*DOE dem. THOMAS HICKMAN v. JOHN HICKMAN, WILLIAM HICKMAN, ABRAHAM PASSMORE, and HENRY HICKMAN. [*56

At a Court Baron C. surrendered copyhold premises to the use of J. H. for life, and after his decease to the use of such person for such estate as J. H. should by will attested by three witnesses appoint; and in default of such appointment to the use of the heirs and assigns of J. H. for ever.

J. H. was admitted on such surrender, and afterwards by will attested by two witnesses only, devised the premises to W. and J., and died without having made any other surrender or will:

Held, that although the will, attested by only two witnesses, was not a good execution of the power given to J. H. by the surrender, it operated on the reversion vested in him in default of appointment, and that the want of a surrender to the use of such will was eured by 55 G. 3, c. 192.

EJECTMENT for lands and premises in the county of Stafford. The declaration contained two demises in the name of Thomas Hickman. Plea, the general issue. The cause came on at the Spring assizes for the county of Stafford, 1832, when the jury found a verdict for the lessor of the plaintiff, subject to the opinion of this Court on the following case:

On the 16th of July 1806, at a court baron holden for the manor of Sedgley in the county of Stafford, Edward Cox of Sedgley, gentleman, and Mary his wife, surrendered into the hands of the lord of the said manor, all that cottage, or dwelling-house (therein particularly described) in the occupation of John Hickman, together with the use of taking water from a well in the adjoining premises, as then used and enjoyed by the said John Hickman, to the use of him John Hickman, for and during the term of his natural life; and after his decease to the use of such person or persons, and for such estate and estates, ends, intents and purposes, as the said John Hickman should by any other surrender or by his last will and testament in writing, such will to be by him duly executed in the presence of and attested by three or more credible witnesses, *57] surrender, devise, limit, *direct or appoint; and in default of such surren

At

der, &c. to the use of the heirs and assigns of the said John Hickman for ever at the will of the lord according to the custom of the said manor. the same court John Hickman was duly admitted upon the said surrender. This ejectment was brought to recover possession of the surrendered premises. Thomas Hickman, the lessor of the plaintiff, is the eldest son and heir, at law, and heir according to the custom of the said manor of John Hickman the surrenderee.

On the 19th of December, 1806, the said John Hickman made his will in writing, in the presence of and attested by two witnesses only, and thereby devised the premises to his wife for her life, and after her death to the defendants William and John Hickman, subject to certain charges. The testator's wife died in his lifetime. John Hickman the testator died on the 17th of April, 1817, without having made any surrender of the premises, or executed any other will than that before-mentioned. The question for the opinion of the Court was, whether Thomas Hickman, the lessor of the plaintiff, was entitled to recover possession of the premises? This case was argued in last Trinity term.

R. V. Richards for the lessor of the plaintiff. The lessor of the plaintiff, the heir at law of John Hickman the surrenderee, is entitled to recover, because the will under which the defendants claim was not executed in the presence of three witnesses, as required by the terms of the surrender. It may be said, that although the will does not operate as an execution of the power, it may operate *58] on the reversion in fee which in default of *appointment was vested in the testator, and that the case is then to be considered as if no surrender whatever had been made, which defect will be supplied by the statute 55 G. 3, c. 192. That statute, however, applies to cases where there has been no surrender whatever to the use of a will, and not to a case where a surrenderee having taken a surrender to the use of a will which he himself has required to be executed in a particular form, afterwards makes a will wanting these formali- . ties. The statute recites that inconvenience has resulted from the necessity of making surrenders, and enacts that where copy hold tenants may, by will, dispose of copyhold tenements, the same having been surrendered to such uses as should be declared by such will, every disposition made by such will of any such copyhold tenements shall be as valid, although no surrender shall have been made to the use of the last will and testament of such person, as it would have been if a surrender had been made to the use of such will. Here there has been a surrender to the use of a will, to be executed in a particular form pointed out in the surrender. Before the statute, it is quite clear that the copyhold land would not have passed except by a will so executed. Section 3, enacts that nothing in that act contained shall be construed "to render valid and effectual any devise or disposition of any copyhold lands, tenements, or hereditaments which would

be invalid or ineffectual if a surrender had been made to the use of the last will and testament of the person attempting to dispose of the same." Construing the first and third sections together, it is quite clear that the statute does not apply to a case like the present.

*Jervis, contrà. The surrender was to the use of John Hickman for life, and after his decease to the use of such person as he should by will [*59 executed in the presence of three witnesses appoint; and in default of such surrender or appointment, to himself in fee. There has been no will executed in the presence of three witnesses, and consequently there has been a default of such appointment as is pointed out in the surrender; the fee, therefore, vested in the testator; and the will afterwards made, though it does not operate as a good execution of the power, will operate on the reversion in fee, and the want of a surrender to the uses of that will which was actually executed in this case, will be supplied by the statute. Cur. adv. vult.

PARKE, J., in the course of this term, delivered the judgment of the Court. It was admitted in this case, on the part of the defendants, that the will of John Hickman was not a good execution of the power given to him by the surrender of the 16th of July, 1806, in consequence of its not having been executed in the presence of, and attested by, three witnesses; but it was contended, that it might operate on the reversion in fee which was vested in him in default of appointment, and that the want of a surrender to the use of his will was cured by the statute 55 G. 3, c. 192. It is clear that if there had been a surrender previously made by John Hickman to the use of his will, the will would have conveyed his interest, notwithstanding it was attested only by two witnesses, for copyholds are neither within the statute of wills nor the statute of frauds. And where a man hath both a power and an *interest, an instrument, if it be [*60 sufficient for the purpose, may operate as a conveyance of the interest, although it be defective as an execution of the power. It was argued for the lessor of the plaintiff, that this was not a case within the statute 55 G. 3, c. 192 but we see no reason for saying so. That statute enacts, that in all cases where, by custom, any copyhold tenant may, by his last will, dispose of or appoint his copyhold tenements, the same having been surrendered to such uses as should be declared by such last will, every disposition made or to be made by any such last will, by any person who shall die after the passing of that act, of any such copyhold tenements, or of any right, title, or interest in or to the same, shall be as valid and effectual to all intents and purposes, although no surrender shall have been made to the use of the last will and testament of such person, as the same would have been if a surrender had been made to the use of such will. Here John Hickman died after the passing of that act; and, therefore, the disposition by his will was as valid as if a surrender had been made to the use of it.

We think, therefore, that judgment must be entered for the defendants. Judgment for the defendants.

*The KING v. THOMAS ANDREWS ADAMES.

[*61

Lands are rateable to the relief of the poor, in proportion to the net rent which a tenant at rack rent would pay, he discharging all rates, charges and outgoings: and therefore an occupier (whatever be his interest) of land which requires to be protected from floods at an occasional expense defrayed by a sewer's rate is not rateable to the poor at the same sum as the occupier of lands of similar quality and equal annual produce in the same parish not liable to the sewer's rate; but he should be rated at that sum, minus the sewer's rate.

By a rate for the relief of the poor of the parish of Pagham in Sussex, allowed November 1830, the defendant, who was owner and occupier of lands lying with