1853. KAVANAGH v. MORLAND. Judgment. to imply an estate tail in the parent, and thus approach as nearly as possible to the general intention of the will. How far that may have been originally a sound rule, looking at the effect of fines and recoveries, it is now too late to consider. The rule is now well established. In looking at a will of this kind, I must first consider whether, by the original gift to the issue, they take an absolute interest; in which case there would be no necessity to imply an estate tail in the parent in order to prevent the gift over taking effect until a complete failure of the issue. But, secondly, if I do not find such an original gift, I must consider whether there is a gift over on an indefinite failure of issue; and whether the testator had that general intention, without which I cannot alter the limitation, which, standing alone, would be a limitation to them as purchasers for life only. Mr. Prior says, first, that the issue take as purchasers, because in Hockley v. Mawbey (a) and Leeming v. Sherratt (b), and other similar cases, particularly Crozier v. Crozier (c), where there was a power of appointment among the issue of the original tenant for life of the whole fee simple, and then a gift to the objects of the power of only a life interest, the Court held very reasonably, if I may presume to say so, that the gift in default of appointment must be equivalent to the interest which might be conferred under the power of appointment; and although the gift in default of appointment standing alone would not have given the fee to the devisees, yet they must take the fee, which there was a power to appoint; and thus it comes to the common case of an ordinary gift in fee. But I must try whether there is in this case such a power of appointment as would authorise a gift in fee. Part of the words are "all my said freehold and copyhold (a) 1 Ves. jun. 142. (b) 2 Hare, 14. (c) 5 Dru. & War. 373. 66 lands to be distributed between them share and share alike." These words clearly would make the devisees tenants in common for life. The will continues, as three gentlemen learned in the law, or a major part of them, shall affix the same." Now, by these words, no power is given to the appointors to give any estate to the parties. Their estate is limited by the words "share and share alike" to be equal estates for life as tenants in common. By the power these gentlemen are to affix the land in severalty among them, to hold in common-that is, to measure out and apportion the particular property each is to hold. If I give land to three persons as tenants in common, with a power to A. to partition it among them, that would not extend their life interest to a fee. These words point to nothing beyond that. There is no authority vested in these gentlemen to confer any estate or to do more than to distribute the particular lands which the devisees were to hold in severalty. The only question which remains is, whether the gift over was on an indefinite failure of issue. The first words are clear: "But in case my said grand-daughter should die leaving no issue, and after the death of my said loving wife, then I give and bequeath unto the minister, churchwardens, and overseers of the poor of the parish of Tillingham for the time being, all my freehold and copyhold and leasehold estates, whatsoever and wheresoever (Leggatt's excepted, if my said sister be living)." Mr. Prior, who very properly never attempts to argue an untenable point settled by authority, did not rely upon those words in any way. Standing alone, they merely mean subject to the life interest of the wife as to one part of the property, and of the sister as to Leggatt's. Then the said trustees are to sell and divide the proceeds between the grandchildren of the testator's sisters Sarah and Mary, both deceased, share and share alike; and this being an absolute interest, the will then continues: "But if my sister Susannah should outlive 1853. KAVANAGH v. MORLAND. Judgment. 1853. KAVANAGH v. MORLAND. Judgment. my said grand-daughter, then Leggatt's not to be sold till after the decease of my said sister." Now, Mr. Prior observes upon that, this estate is not to be sold if the sister should outlive the grand-daughter; and therefore he raises an inference that the sale was intended to take place on the death of the grand-daughter, and contemporaneously with that event; for the testator had provided, that, if the sister should outlive the grand-daughter, the sale was to be postponed. I cannot, by a mere inference, so limit the devise. It might be that the contrary event might have taken place. Susannah might not outlive the grand-daughter, the grand-daughter might die leaving issue, and, in that event, it would be consistent with the general intention of this will to say that the sale should not take place until after the failure of that issue. The circumstance probably only then occurred to the mind of the testator, just as in a previous part of the will, where he says, if my sister be living. He means here to say, "but remember, whenever the event takes place, all this is done subject to the life interest of my sister Susannah." It does not carry it higher than in the other case. All that can be said is, there is something tending to shew, that, in the view of the testator, there might be a sale immediately after the grand-daughter's death; but, as in the other case, if it should happen that the sister should die in the lifetime of the grand-daughter, the sale should not take place till after her death and the failure of issue. I think there is not enough to fix so clearly the period of division to be at the grand-daughter's death as to overrule the settled principle. Then it comes back to this, there is a gift over on an indefinite failure of issue with a gift to the issue too weak in itself to confer more than an estate for life, and a gift over in default of issue; it, therefore, clearly comes within the decision in Doe d. Blandford v. Applin (a). There must be a declaration that Ann Maskell took an estate in tail in the land in question under the will. (a) 4 T. R. 82. 1853. EVANS v. JONES. Nov. 9th. Deed-Con ation in favour of Purchasers. By a disentailing deed under Recoveries Act, the Fines and 3 & 4 Will. 4, c. 74, after re citing that 4. life, with reminer two estates was tenant for mainder to B. in tail of the therein com prised, and that 4, being called upon to pay a debt of 12002, had applied to C., who had agreed to ad BY an indenture made the 12th of September, 1843, be- Disentailing tween George David Griffith of the first part, Benjamin struction--Oper Evans and Benjamin Griffith Evans of the second part, Jane Martha Jones of the third part, and Thomas Morgan of the fourth part. After reciting, that, by certain indentures of lease and release, dated respectively the 23rd and 24th of June, 1813, being a settlement made previous to the marriage then intended, and soon afterwards solemnised, between Benjamin Evans and Easter Griffith, the hereditaments and premises therein described, called Eglwswrw and Vrochest, were conveyed to Essex Bowen and John Evans, their heirs and assigns, to the use of Caleb Evans, father of the said Benjamin Evans, and his heirs, until the solemnisation of the said intended marriage, and after the solemnisation thereof, as to Eglwswrw, to the use of the said Caleb Evans and his assigns for life; and subject thereto, as to both Eglwswrw and Vrochest, to the use of Benjamin Evans for life, with remainder to the use of the said Easter Griffith for her life, with remainder to the use of the said Essex Bowen and John Evans, and their heirs, during the lives of the said Benjamin Evans and Easter Griffith, his intended wife, and the life of the survivor of them, upon trust to preserve contingent remainders, with remainder to the use of William Bowen and Thomas Lewis, their executors, administrators, and assigns, for the term of one thousand years, upon the trusts thereinafter declared; and subject thereto, to the use of the first son the said Benjamin Evans and Easter Griffith to be gotten, and the heirs of the body of such first son of vance that sum, of B. joining in the deed, which agreed to do; in consideration he had also in order to de feat all estates tail of B. and inheritance in to convey the fee therein 4. and B. jointly conveyed the two estates, and all the in terest of A. and B. therein, to C., for 500 be years, to secure the repayment of 12007, and law interest, with remainder to A. for life, remain der to B. in fee. In fact A. was tenant in tail, not tenant for life, of one of the two estates:-Held, that the conveyance being for valuable consideration as to both B. and C., the tenant in tail under A.'s entail could not be heard to say that such entail was not barred by the deed, the intention to convey the whole fee simple in the property so entailed being sufficiently expressed, and the operative words of the disentailing deed being large enough to bar such entail. 1853. EVANS v. JONES. Statement. fully issuing, with divers remainders over. And as to the said term of one thousand years therein before limited to the said William Bowen and Thomas Lewis, their executors, administrators, and assigns, it was declared that the same. was so limited to them upon trust, in case the said Easter Griffith should have issue by the said Benjamin Evans any other child or children besides an eldest or only child, whether the same should be a son or daughter, then the said William Bowen and Thomas Lewis, their executors, administrators, or assigns, at any time after the decease of the said Benjamin Evans and Easter Griffith, or in their lifetime, or in the lifetime of the survivor of them, with their, his, or her consent first had in writing, should, by sale or mortgage of the said term of one thousand years, or the premises therein comprised, or any part thereof, levy and raise the sum of one thousand pounds for the portion or portions of such daughter or daughters, younger son or sons of the body of the said Easter Griffith by the said Benjamin Evans to be begotten, to be paid to them at such times and in such manner as were therein particularly mentioned; and reciting that the said marriage was soon afterwards solemnised between the said Benjamin Evans and Easter Griffith, and that the said Caleb Evans and Easter Evans had long since departed this life; and reciting a mortgage of the life interest of the said Benjamin Evans for 1400l., and that the mortgagee had since died, leaving George David Griffith his heir-at-law and executor; and reciting that the said Benjamin Griffith Evans was the eldest son and heir of the body of the said Benjamin Evans, and as such eldest son was entitled to an estate tail in remainder immediately expectant upon the decease of the said Benjamin Evans in the messuages, lands, and hereditaments thereby granted and released, or intended so to be; and that there remained due and owing to the said George David Griffith, as such executor as aforesaid, the principal sum of 1200l. only, all interest |