to the issue of Ann Maskell. The direction that the estate should be distributed between the issue, share and share alike, as three gentlemen should appoint, makes it a gift to the issue as purchasers. This was decided in Hockley v. Mawbey (a), where the limitation was to "Richard Russell and his issue lawfully begotten or to be begotten, to be divided among them as he should think fit," with a gift over; concerning which, Lord Thurlow in his judgment says, "The limitation to the son and his issue would be an estate tail.... but it is clear he did not intend it to go to them as heirs in tail, for he meant they should take distributively and according to proportions to be fixed by the son." This case was referred to as an authority for a like construction by Alderson, B., in Lees v. Mosley (b); but that case is not exactly in point, for there was no gift over upon an indefinite failure of issue. A similar case respecting personal property is Target v. Gaunt (c), in the judgment in which it is said by Lord Chancellor Parker "dying without issue has two senses: 1st. A vulgar sense; and that is dying without issue living at the time of his death: 2ndly. A legal sense; and that is whenever there is a failure of issue." So, in Leeming v. Sherratt (d), where the words were "to be disposed of in such manner as she should direct to their issue, but in case they should die without issue," over; the bequest was held to be limited to issue living at the death, and the gift over to refer to the same objects, as if the words had been "in case they die without such issue." In Crozier v. Crozier (e), the devise was to J. C. for life, remainder to "the issue, male and female, of J. C., now begotten or to be begotten on the body of his present wife K., to be divided between and amongst them in such manner, shares, and proportions as the said J. C. shall appoint." There was (a) 1 Ves. jun. 142. (b) 1 Y. & C., Exch., 610. (c) 1 P. Wms. 432. (d) 2 Hare, 14. (e) 3 Dru. & War. 373. 1853. KAVANAGH v. MORLAND. Argument. 1853. KAVANAGH v. MORLAND. Argument. there no gift over on failure of issue, but issue was construed to mean children, and they took as purchasers absolutely. [The VICE-CHANCELLOR.-The Lord-Chancellor there lays stress on the fact of their issue taking the whole interest.] By virtue of the power of appointment the issue in this case take the whole interest; that is evidently the testator's intention, and it must be carried into effect either by giving to the issue an estate in fee or in tail. If the intention be sufficiently expressed in the gift to the issue themselves, they take a fee simple; if the intention be only expressed in the gift over, then it is effected by giving to the ancestor an estate tail. [The VICE-CHANCELLOR.-But the gift is in this case to the issue equally as tenants in common; the power of appointment is only to affix the actual lands to be taken by each.] The words of the power point to a permanent division among the issue, not merely among them as tenants in common for life. [The VICECHANCELLOR.-In Crozier v. Crozier (a), the words of the power were "in such manner, shares, and proportions."] The word "manner" no doubt points more clearly to the interest to be given; but the word "affix" seems to be a word implying a gift of a permanent interest. Then, the words importing a tenancy in common are important in favour of my construction, nowithstanding Doe v. Rucastle (b). [The VICE-CHANCELLOR.-That seems to be a strong decision, although no doubt of considerable authority.] As to general and particular intention, where there are words of tenancy in common and a gift over, the judgment of Parke, B., in Slater v. Dangerfield (c), is very important: "The gift over in the cases where that has been relied on, has always been a gift over expressly in default of issue; and its importance in helping the Court to come to a decision has depended entirely on the circumstance, that it has been to take effect only on a general failure of issue. (b) 8 C B. 876. (a) 3 Dru. & War. 373. (c) 15 M. & W. 263. 1853. KAVANAGH v. MORLAND. Whether the language has always been such as fairly to warrant the Court in saying that the devise over was to take effect only on a general failure of issue, and so, reasoning backwards, to infer that in the original devise the word 'issue' meant issue extended through all generations, Argument. may be matter of doubt; but it is quite clear, that the tenor of the reasoning on which, in these cases, the Judges have proceeded, cannot be applied to a general residuary devise of all not previously disposed of." So in Montgomery v. Montgomery (a). In this case the gift over is upon a failure of issue, not indefinite; which, in Slater v. Dangerfield (b), is put upon the same footing as a case in which there is no gift over, for the purpose of determining the effect to be given to the words importing tenancy in common in the previous gift to the issue. In many cases a gift over, in form indefinite, has been restricted by other words in the will. In Doe d. King v. Frost (c), the devise was to W. F. in fee; and if W. F. "should have no child, children, or issue, the said estate is, on the decease of the said W. F., to become the property of the heir-at-law;" and W. F., it was decided, took an estate in fee, with an executory devise over to the person who, on the happening of the event contemplated, might be the testator's heir. A similar case is Ex parte Davies (d). Another class of cases are, where the limitation over is in terms which cannot relate to an indefinite failure of issue, as where money is directed to be paid according to the appointment of the party whose issue is to fail; and there the gift over has been held to mean "issue living at the death:"Doe v. Webber (e); or money is to be paid in a limited period after the death of the person whose issue is to fail, as Nicholls v. Hooper (f), Pinbury v. Elkin (g). (a) 3 J. & L. 47. (b) 15 M. & W. 263. (c) 3 B. & Ald. 546. (d) 2 Sim., N. S., 114. (e) 1 B. & Ald. 713. (g) 1 P. Wms. 563. 1853. KAVANAGH v. MORLAND. Argument. The terms of the gift over here come exactly within the observation made in the judgment in Massey v Hudson (a), which amounts to this, that a gift to the survivor of two persons after the death of one without issue, furnishes a strong presumption that an indefinite failure of issue could not be in the testator's contemplation: Hughes v.Sayer (b). In this case the words "Leggatt's not to be sold till after the decease of my said sister" shew that the failure of issue contemplated must take place at the death of the grand-daughter. Mr. W. M. James, Q. C., in reply. Judgment. VICE-CHANCELLOR SIR W. P. WOOD: This case has been extremely well argued, and every possible point has been suggested; but the rules are so firmly settled, that I do not wish to throw any doubt upon them by delaying my judgment upon the construction of this will. The cases upon several points are clear: First, the word "issue" is a word which primâ facie would be taken as equivalent to "heirs of the body;" but in construing the word "issue" by other expressions in the will, the Courts have, in applying the rule in Shelley's case to these limitations, considered that word more flexible than "heirs of the body." The next point is, that if there be a devise to one for life and then to his issue, with words of limitation superadded, as to his "issue and their heirs," then according to the decision of Lord St. Leonard's in the case of Montgomery v. Montgomery (c), the issue are considered to take as purchasers, and the whole estate is given to them under these words of limitation. Again, if there be a gift to the issue, and a limitation in (b) 1 P. Wms. 534. the will with reference to them, which has the effect of giving to them the fee simple, then, if there be a gift over in case of dying without issue, the gift over affords no evidence of intention to justify the application of the rule in Shelley's case, because the fee was in the issue, and the words "dying without issue" are consequently held to mean only such issue as were before mentioned; as in the cases of Hockley v. Mawbey (a), and Leeming v. Sherratt (b). But it must first be made out that the fee is in the issue as purchasers. If that be not so, and words occur importing a gift over in fee after an indefinite failure of issue, then the words giving over the property in the event of an indefinite failure of issue have been held to be so strongly indicative of the intention of the testator, that the estate should not pass over except upon failure of all the issue, that those words are made to reflect back upon the preceding limitations to the issue, and have this effect, namely, that if the limitations to the issue do not of themselves clearly effect the intention of the testator of not giving over the property until the issue fail, that is, if for want of superadded words of limitation they would take life estates as purchasers only, and therefore the gift to them. cannot effect the general intention, the Court is obliged to construe the word "issue" in the original gift as a word of limitation, for the purpose of carrying into effect the general intention implied from the gift over. This rule, that the general intention must be effectuated by the sacrifice of the particular intention, is only an application of the rule in Shelley's case, where, although the particular intent is clearly expressed that the ancestor should take for life only, those words do not make the matter any stronger. That particular intention is overruled because of the paramount intention; and there not being such a gift to the issue as would carry the whole estate to them eventually, the Court is consequently obliged (b) 2 Hare, 14. (a) 1 Ves. jun. 142. 1853. KAVANAGH v. MORLAND. Judgment. |