1798. DOE ex dem. ย. DACRE. 6 Eef, 342. cafe, 1 Leon. 285. 3 Leon. 106. Holcroft's cafe, Moore 486 and 520. Holt v. Burley, 2 Vern. 651. Befides there are many cafes in which the Court has even added words with a view to effectuate the apparent intention of the teftator. Spalding v. Spalding, Cro. Car. 185. Evans v. Aftley, 3 Burr. 1570. White v. Barber, 5 Burr. 2703. Ambl. 701. The word "default," in law, means failure, whether there have been fons, and fuch fons have died, or whether there have been any fons. Thus if iffue die without leaving iffue, they are faid to have died without iffue. In a formedon the writ always fuppofes the donee to have died without iffue, and it is no variance if it appear that there has been iffue, and that iffue has fince failed. There is however one cafe in modern times which feems to militate against the leffor of the Plaintiff, namely, Keene (a) (a) A note of that cafe to the following effect was read by Mr. Juftice Buller, in his judgment. Keene ex dem. Pinnock & ux. v. Dickfon, B. R. M. 23 Geo. 3. In ejectment between thefe parties, tried before Lord Mansfield at the Guildball Sittings after Eafter Term 1783, a special verdict was found, ftating (as far as is material, as follows: Henry Dakings being feifed in fee of the premifes in question, on the 5th Aug.1747, devifed the fame to his brother P.D. for life, and after his decease to his niece Grace Pinnock for life, then to trustees to preferve contingent remainders, and after the decease of P. D. and Grace Pinnoch "in truft, and to and for the use and behoof of the first fon of his niece Grace Pinnock, lawfully to be begotten, and the heirs of the body of fuch first fon lawfully iffuing, and for want of fuch iffue to the fecond, third, fourth, fifth, and fixth, and all and every other the fon and fons on the body of his faid niece to be begotten, and the heirs of the body of such son and fons lawfully iffuing, according to the feniority of age and priority of birth, the elder and the heirs of his body to be always preferred and take place before the younger and the beirs of his body, and for want of such iffue male then to the ufe and behoof of all and every the daughter and daughters of his faid niece Grace Pinnock thereafter to be begotten; and for default of such iffue then to the use and behoof of Richard Corbin, and the heirs of his body lawfully to be begotten; and for default of fuch iffue to the use and behoof of the fecond fon of Gawin Corbin deceased, and the heirs of his body to be begotten for ever." Provided that R. Corbin, and the fecond fon of G. Corbin, and the heirs of their re. ex fpective bodies, in whom the eftates fhould Mary, on Ift Gract 1798. DACRE ย. DACRE ex dem. Pinnock v. Dickfon, K. B. Mich. 1783. The words used in that cafe do not indeed materially vary from those now in queftion. But it is to be obferved, that it was the intereft of Dor ex dem. both parties in that cafe to glance at the words "want of fuch iffue male," because a vefted remainder would have defeated the eftate of both. Lord Mansfield faw that the remainder-man was interefted, and ordered that he should be heard; but his cafe was never fully argued, no authorities were cited, nor was the Court reminded of any arguments from the tenor of the will. Befides, as the reason for putting a ftrict conftruction upon the words "want of fuch iffue male," in that cafe, was in order to give effect to the manifeft intention of the teftator, the Court may confider that cafe as an authority for conftruing fimilar words according to the intent of the teftator in this cafe. Arguments on the part of the Defendant. The remainder over to the daughters is only a contingent devife, in the event of there being no fon; and the birth of a fon rendered fuch remainder void. It has been contended, that if this conftruction fhould 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 cafe has been cited to fhew, that the words "default" and "want" are fynonimous; and the extenfiveness of the word "iffue," with which they have been connected, is the reafon why the cafes, in which either of them have been used, have been decided in the fame way. If the words "in default of fuch fons," fhall be held to mean, "if fuch fons be not born, or, if born, when they die," the eftate-tail, before was neceffary to fatisfy the intention of the teftator, they took joint eftates for life, with remainders in tail to their children: for the Defendant it was infifted, that the daughters took an estate-tail: and for the Remainder-man, that on the birth of a fon, the estate-tail vested in him, and then the remainder over vefted also. Lord MANSFIELD. No case exactly the fame as this has ever been decided, or perhaps ever will be; but the cafe of (1) Bridden v. Page, which occurred laft week, was very like it. In my private opinion I think that the whole was a blunder; but that conjecture is not a foundation for a judicial determination. We cannot supply a limitation to the iffue of the daughters, for the words are exprefs. The eftate is given to the fons and the heirs of their bodies ge (1) Vid. poft, p. 261. nerally, and " for want of fuch iffue male," WILLES J. On fuch an embarrassed will Judgment for the Plaintiff for one 1798. given to the fons, will be reftrained to an eftate for life; fince, in the event of the fons dying, the daughters would have a right to Dor ex dem. take. The Plaintiff therefore muft infift, that the words "default DACRE. V. DACRE. of fuch fons," mean "default of fuch iffue;" which will hardly be affented to by the Court. All that was decided, in Tuck v. Frenfham, was, that the teftator intended to ufe the word "heirs" in the fame fenfe in both claufes of the will. The fame obfervation applies to the cafe in the margin of Dyer. In Ives v. Legge, 3 T. R. 488. in the note, where the remainder over was held to be vefted, the words were large enough to comprehend the iffie of the children, which the word "fons" is not. Even the word "iffue" has been reftrained to "children." Doe v. Perryn, 3 T.R.484. The intereft of the remainder-man in Keene v. Dixon was taken into confideration; for Lord Mansfield defired that he should be heard by his counfel, and confidered it in his opinion, though he clearly thought that the words "for want of fuch iffue male" created a contingency. Mr. J. Buller, alluding to that cafe in Doe v. Perryn, 3 T.R. 495. feems to have thought that the prin pal point decided. EYRE Ch. J. I think that we do not want the authority of cafes at this time of day to eftablish the rule of law on which we are to proceed to be this: that, in the conftruction of a will, whether the words ufed be technical or not technical, or even of vulgar and common parlance, the Court is to put that fenfe upon them, in which, on a fair confideration of the whole context, they collect that the teftator intended to use them. In this cafe, the words on which the difficulty arifes are by no means technical; they may import many things, according to the fubject-matter; and we are to inquire in what fenfe the teftator meant to use them. If we can discover that, the next confideration 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 case. Taking a general view of the whole will, the intent of this teftator appears to me to be obvious. He meant to make provifion for each of his feven fifters and their children; and he meant, that if either of his fifters or her children fhould fail within a given time, that there should be a furvivorship in favour of the other fifters and their children: and he alfo intended, that if neither of his fifters should have children, or if the children fhould all die under twenty-one and without iffue, another branch of his family fhould take. In fome event or other, he meant, not only that 1798. DACRE v. DACRE. that the fons fhould take an estate-tail, but also that the daughters fhould take fuch an eftate, failing the fons. Then let us confider in what fenfe the teftator fuppofed that he had ufed the words DOE ex dem. which conftitute the limitation to the daughters. Immediately after the difpofition to the daughters, he fays, "In cafe any of my faid feven fifters last mentioned fhall die without leaving any issue of her body begotten, and that iffue fhall die before he or she shall attain his or her age of twenty-one years, then I give her share to my furviving fifters." He gives an intereft to the furviving fifters in the event of one fifter dying without either fon or daughter; and exprefsly fays therefore, that there shall be no furvivorship if any of the daughters fhould have iffue either male or female. Did he not then fuppofe that he had ufed words fufficiently ftrong to give an estate-tail to the daughters in the event of the fons dying without iffue? Next comes the limitation to Dr. Trevor, which was to take place in the event of every one of the fifters dying without either fons leaving iffue, or daughters leaving iffue, and fuch iffue dying under twenty-one. Did he not then understand, that by the original devife, and by the clause of furvivorship, he had given over every fhare of each fifter, to the fons firft and their iffue; and that limitation failing, to the daughters and their iffue? -Would he have confined the clause of furvivorship 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 conftruction which the teftator palpably intended to give them. I do not feel difpofed to go all the lengths which fome of the cafes on wills would warrant. I am for aflifting, to a reasonable extent, teftators, who are not always affifted by the beft 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 ftrange mixture of technical and common words. When I have got at the teftator's meaning, I will, if poffible, give fuch a conftruction to his words as may carry his meaning into execution; but if he has not expreffed his will in fuch words as can bear out his meaning, then the will must take its effect according to the conftruction which the words will bear, and his intention will be defeated. In fhort, I will depart from the technical fenfe of words to effectuate the intention of teftators as far as poffible, without violating the rules [258] of law. The words ufed in this cafe are, "in default of fuch fons." 1798. DACRE บ. DACRE. 66 fons." It is impoffible to say, without reference to the context, what the meaning of thefe words is. I do not know a larger or Dox ex dem. loofer word than "default." Abftracted from other words, what does it mean? In the expreffions "judgment by default," and a juror making default," we understand it differently. In its largeft and moft general fenfe it feems to mean, failing. It has been argued, that the birth of a fon would fatisfy the words, and fhew that there was no default, and confequently defeat the remainder. Is there any reasonable ground for fo confining the word "default," as to make the mere birth of a fon deftroy the contingency contrary to the plain fenfe of the teftator, who clearly meant the default of fuch a fon as would take the benefit of his devife; whereas a fon dying in the lifetime of his mother could take nothing? By the word "default" the teftator meant to denote the failure of that fon at fome time or other. Without referring to the context, natural death is the circumftance which he may firft be fuppofed to have pointed at: if there fhould be fons, and they should die, then the daughters fhould take. But if we look to the context, it will appear that he meant failure of those fons to whom an intereft was given by the former part of the devife. (a) "Such" is a word of reference, and may be referred either to the individual perfon, taken abstractedly from any thing connected with him; or it is powerful enough, where the intent appears, to include every circumftance added to the description of the perfon in the former part of the devife. The moft obvious meaning of "fuch fon," in a provifion of this nature, is, that fon to whom, and to whofe iffue, he had given an estate in the former inftance. 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 no iffue: there might be fons, and there might or might not be iffue. A conveyancer might have thought right to add words to include every poffible event: though Holcroft's cafe fufficiently fhews that this was not neceffary. But I do not intend to incumber myself with cafes. Decifions upon other words fomething like thofe in queftion, in other wills, where the whole context of those other wills must be gone into, can afford very little affiftance. The cafe of Spalding v. Spalding, which I mentioned in the courfe of the argument, is not in point; but the principle, that the whole context of the will muft be looked into to effectuate the (a) In Lee's cafe, 1 Leon. 285. where a devife was to William, and if he depart this world not having iffue, then that the land fhould be fold, and William had a fon foba, and died, and John afterwards 16 died without iffue: it was held that upon the death of John the lands were fubject to be fold. Vid. etiam, Goodwin v. Clark, 1 Lev. 35. intent |