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heirs at law of Henry the testator and of the said Susanna Maria, and on whose demise, among others, this ejectment was brought. None of the trustees named in Henry Jones's will ever joined in making a tenant to the præcipe for suffering a recovery of the premises in question. This case was argued in Trinity Term before Lord TENTERDEN, C. J., LITTLEDALE, PARKE, and TAUNTON, Js.

E. V. Williams for the lessors of the plaintiffs. The principal questions are, whether Susanna Jones took, under her father's will, a life estate or an estate tail? and if the latter, whether or not that estate was barred by a valid recovery? On the first point the lessors of the plaintiff say that the word "child” in the will is a word of purchase and not of limitation. Prima facie and in its proper acceptation it is a word of purchase; it is for the defendant to show that it was meant otherwise. Looking to the whole will, the intention apparently was to put the estate in strict settlement, the daughter taking for life merely. It may be said that an inconvenience arises from construing "child" as signifying only an individual, because, if that child were to die, the estate would then go to its heirs, although the mother might have a child by another husband, which, according to the natural construction of the will, ought to take. It may also be objected, that the first-born child might be a daughter, and would take, *17] according to this *construction, in preference to a son born afterwards; and it may, therefore, be argued that "child" must have been used as nomen collectivum. But it is enough to say that these events may not have eccurred to the testator's mind; and, on the other hand, the intention is clear that the daughter should have a life estate only, with remainder to her "child" individually, as purchaser, or perhaps to her children successively as purchasers, if one or more died, as in Ginger dem. White v. White, Willes, 348. The testator here expressly declares his wish that the estate should not be frittered away if his daughter should die unmarried, and then it should be held on the condition of residence; both which objects might be defeated if she took an estate tail. He desires that any husband of his daughter on whom the estate may be settled shall be liable to "impeachment for waste or non-residence ;" but if this were an estate tail the husband might become tenant by the curtesy, and then the condition of residence could not be enforced. The reasonable maintenance left for the education of such child applies to an individual child: taking the word as nomen collectivum the bequest would be too indefinite. The care taken to enforce residence in the limitations to remainder-men, and the desire to improve the neighbourhood, are inconsistent with the supposition that he intended the several estates to be defeasible by a common recovery; and on the same supposition it would have been nugatory to give his daughter a specific authority to bar the remainder-men under certain circumstances. He expressly refers to her in this part of the will as "a tenant for life." In the cases where *48] "son" has been construed as nomen collectivum, either there *were other expressions technically applicable to an estate tail, or that construction was evidently borne out by the general intention of the testator. Robinson v. Robinson, 1 Burr. 38, and Mellish v. Mellish, 2 B. & C. 520, are instances. The rule, that in construing a will the general intent must prevail in spite of inconsistent particular intentions, goes no further than (as is stated by Lord Redesdale in Jesson v. Wright, 2 Bligh, 57, that "technical words shall have their legal effect, unless from subsequent inconsistent words it is very clear that the testator meant otherwise." But here no technical words are found to contradict the expressed intent that the daughter should take an estate for life only.

It cannot be said that the devise of the estates by Susanna was an execution of any power granted to her by IIenry Jones's will; and even assuming that it could have been so considered, still, if she was tenant for life only, by suffering a recovery she forfeited both the estate and the power annexed.

But, secondly, assuming that she took an estate for life with remainder to herself in tail, the recovery was not valid, because the two estates were not of

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.

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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 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."

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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 r. 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 fun to her own use does not amount to a trust for her separate use.(a) In (a) See on this point Jacobs r. 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.

*PARKE, J., in this term, delivered the judgment of the Court. *53] 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.

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 on any 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 [55 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.

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.

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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, surrender, devise, limit, *direct or appoint; and in default of such surren*57] 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. At 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 copyhold 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

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