Bequests of chattels, &c. "Leaving" when construed "having." &c., of different import in the same will, when applied to real and personal estate; in the first instance giving the word "issue" its most extensive signification, so as to create an estate tail in the devisee; and in the second, restraining the general purport of the word, so as to include only such as the first taker shall leave at his death; as the reader will find upon referring to the cases cited below (d). The propriety of putting a different construction upon the word "leaving" in the same will has been questioned by some modern Judges (e); but the authority of the case of Forth v. Chapman, which gave rise to the above distinction, is recognised and approved of by Lord Eldon, C., in Crook v. De Vandes (ƒ), and may now be considered as fully established. His Lordship says, "I have heard the case of Forth v. Chapman cited for years, and repeated by Lord Kenyon himself, as not to be shaken. I never knew it shaken (g). In some cases, to give consistency and effect to the will, the word "leaving" has been construed "having.” Thus in Maitland v. Chaliè (h), the bequest was of 25,000, 31. per cent. to trustees upon trust for S: C., the testator's daughter, for life, and after her death, to transfer one moiety to his next of kin (other than the children of S. C.), and the other moiety unto and amongst all and every the child or children of S. C., equally to be divided between them at their respective ages of twenty-one years, if more than one; and if but one, then to such one child at that age: the will contained a proviso, that in case S. C. should die without leaving any child or children, or leaving any, such child or children should die before attaining twenty-one, then the fund was to go over to the testator's next of kin, living at the death of the survivor of S. C. and her children, so dying before twenty-one as aforesaid. S. C. had only two children, Marianne and Jane Marianne attained twenty-one and married, and afterwards, in 1788, died leaving one child; Jane also attained twenty-one and married in 1794, and died without issue, leaving her mother, S. C., surviving; upon whose death, in 1821, the question arose whether the representatives of her children were (d) Forth v. Chapman, 1 P. Wms. 664; Sheffield v. Lord Orrery, 3 Atk. 288; Stafford v. Buckley, and Southby v. Stonehouse, 2 Ves. sen. 180, 616; Simmons v. Simmons, 8 Sim. 22. (e) See Lord Kenyon's observations in Roe v. Jeffery, 7 T. R. 595, on the distinction taken in Forth v. Chapman. (ƒ) 9 Ves. 203. (g) See also Radford v. Radford, 1 Keen, 486; Doe v. Ewart, 7 Ad. & El. 636. (h) Mad. & Geld. 243. entitled to their shares, they having taken vested interests at Bequests of twenty-one, or whether the next of kin of the testator were chattels, &c. entitled to the whole fund, as neither of the daughters of S. C. were living at her death. Sir J. Leach, V. C., was of opinion that a clear vested interest was, in the first place, given to the children at twenty-one; and that if, in the clause giving the property over on failure of the children of the daughter, the word "having" were read for "leaving," the whole will would express a consistent intention to that effect; and he felt himself bound by the authorities to adopt this construction; and he considered the cases of Woodcock v. The D. of Dorset (i), and Powis v. Burdett (j), stronger than the case before him; and he decided that the daughters of S. C. took vested interests, having attained the age of twenty-one. A similar decision was made in Casamajor v. Strode (k), by Sir L. Shadwell, V. C. 5. The reader should here be apprised, that the words "without 5. But the "words" with with "without having" children, are not synonymous with "without leaving," out having" not but in some cases have been construed "without having had synonymous children," upon the apparent intention. The case of Bell v. Phyn, leaving." before stated (7), is one instance, and Weakley ex dem. Knight v. Rugg (m), is another. In the latter, William Owen, having three daughters, gave the residue of a term of one thousand years to Ann (the wife of the lessor of the plaintiff), but if she happened to die without having child or children lawfully begotten, then he willed that the same premises should go to his daughter Mary, and after her to such child or children as she should happen to have lawfully begotten; and he appointed Ann executrix and residuary legatee. Ann married after the testator's death, and had three children, all of whom died in her lifetime; and the question was, whether the absolute interest in the term vested in Ann, or whether "without having" was synonymous with "without leaving," so as to effectuate the executory bequest to Mary, in case Ann died without leaving a child, which event had happened: and Lord Kenyon was of· opinion that the term vested in Ann, and that the testator's primary intention was to benefit Ann and her progeny; and that the word "leaving" was essentially different from the word (i) 3 Bro. C. C. 569. (1) Page 617. (m) 7 T. R. 322; see also Malcolm v. Taylor, 2 Russ. & M. 416. chattels, &c. Bequests of "having." The other Judges, Ashurst, Grose, and Lawrence, concurred; the latter observing, "Perhaps the general intention of the testator will be best consulted by this determination. At the same time, I confess it struck me at first, that this was a gift to Ann, and in case she left any children, that she should have the power of disposing of it absolutely, the testator taking it for granted that she would provide for those children; but if she left no child, then the estate should go to Mary and her children. That is the grammatical construction of the will; having refers to the time of the death; whereas, according to the plaintiff's argument, that word must be read, "having had" (n). 6. Where the word issue ap plies to preceding words of narrower import. In Stone v. Maule (o), the bequest was to H. D. for his own use and benefit; and in case he should die in the testator's lifetime, or afterwards, without having any child or children, then over. H. D. died after the testator unmarried. He was illegitimate, and on behalf of the Crown, it was argued that the above words were to be taken as synonymous with the expression "without issue." Sir L. Shadwell, V. C., rejected this construction, deciding, that in the event which had happened the bequest over took effect. The preceding case of Weakley v. Rugg (p), was not adverted to in the last case, but was in point. In Parr v. Parr (pp), the testator directed a fund to be settled upon his daughter for life, in such manner, that in case of her death it should devolve upon her children, if she should have any; and if she should not have any, then that she should bequeath it to any person she might think fit. Sir John Leach, M. R., decided that the meaning of the testator was, if the daughter had no child living at her death; and that the representatives of a deceased child, who died in the lifetime of the testator's daughter, were not entitled. 6. Where the words "dying without issue" apply to preceding words of narrower signification, as to a descript class of descendants, who must take within a legal period, the general import of dying without issue will be restrained accordingly. Thus, where the bequest is to A. for life, and afterwards to his children, or sons, payable at twenty-one, or marriage, and in (n) See also Pinbury v. Elkin, 1 P. Wms. 563, for the different meaning of the words, "dying without issue;" Target v. Gaunt, 1 P. Wms. 432. (0) 2 Sim. 490. (p) Ib. 7 T. R. 322. (PP) 1 Myl. & K. 647; see also Stonor v. Curwen, 5 Sim. 264, supra, p. 96. default of such issue, to B.; in such case, the generality of the Bequests of words "in default of such issue," has been governed and controlled chattels, &c. by the preceding expressions, "children or sons;" the Court considering the words to mean, not an indefinite failure of the issue of A. but the failure of such children, or sons only, as were previously described (q). a 7. Dying restrained when coupled with a power without issue 7. Again, the natural import of the words "without issue," has been restrained, when the bequest to the issue is coupled with power of appointment. Thus, in Target v. Gaunt (r), the testator bequeathed the of appointment. residue of a term of years to his son Henry for life, and after his decease, to such of the issue of Henry as Henry should by his will appoint; and in case he should die without issue, then the testator devised the same to Albinus. Henry died without issue living at his death; and it was determined by Lord Parker, C., that the limitation to Albinus was good; and, as it should seem, upon the ground, that the power of appointment among his issue reserved to Henry, manifested the intention of the testator in using the word "issue," that he included none else but such issue of Henry as he might appoint to, viz., such as should be living at his death. The case of Keily v. Fowler (s), was determined upon the same principle. There the testator bequeathed to his daughter all his personal estate, provided that she married with the consent of his executors therein named; and, after appointing A. and B. executors, he declared, that if his daughter should die without issue, all his said substance should return to his executors, to be distributed as he should thereafter direct; and lastly, if his daughter married without consent, or should die without issue, he directed that his said substance should return to his executors, to be by them distributed in the following manner: to C., 100%; to D., 50%., and to each of his executors, 50%., &c. The question was, whether the bequests expectant on the death and failure (q) Pleydell v. Pleydell, 1 P. Wms. 748; and Lord Hardwicke's comment, Amb. 125; Maddox v. Staines, 2 P. Wms. 421, aff. D. P.; 3 Bro. P. C. 108; see also Tucker v. Harris, 5 Sim. 538; Bradshaw v. Skilbeck, 2 Bing. N. S. 182; Malcolm v. Taylor, 2 Russ. & M. 416, 421; Trickey v. Trickey, 3 Myl. & K. 560; and see Ellicombe v. Gompertz, 3 Myl. & Cr. 127; Walker v. Petchell, 1 Com. Bench R. 652, cases of real estate; Leeming (r) 1 P. Wms. 432; but it should (s) 6 Bro. P. C. 309; see also Balguy v. Hamilton, Mose. 186. Bequests of chattels, &c. issue restrained. of issue of the testator's daughter were valid? and it was determined in the affirmative; the general expressions, "dying without Dying without issue," being in this case to be confined to the period of the daughter's death. The principle of the decision appears to have been this; that the fund being directed to revert to the testator's executors, to be by them distributed, &c., upon the daughter's death without issue, manifested an intention in the testator to repose a personal trust and confidence in them; but, as such trust and confidence could never have been exercised, if the daughter's death without issue were construed an indefinite failure of issue, the generality of the words was, in order to effectuate the intention, restrained to the failure of issue living at her death. Upon trust for accumulation. SECT. VI. Bequests of personalty upon trusts for accumulation. Previously to the statute of the 40th Geo. 3, c. 98, dispositions of real and personal estate, by which the profits and produce were directed to accumulate, were equally valid as other dispositions restricting the mode of enjoyment, provided the period of accumulation did not exceed the limit prescribed by law for fettering the powers of absolute ownership, namely, a life or lives in being, and twenty-one years afterwards, with the further period of a few months for gestation. This will appear from the arguments and judgments in the celebrated case of Thellusson v. Woodford (t), which gave occasion to the above mentioned act. Any consideration of this case would here be unnecessary; and the reader is referred to Mr. Hargrave's learned arguments in that case, and particularly his second, wherein he traces, with his usual ability, the rise and progress of executory devise in this country. The arguments will be found in the valuable collection of that learned author, which he calls his Jurisconsult Exercitations (u). By the above act, all dispositions of real and personal estate, by which the profits and produce thereof are directed to accumulate, and the beneficial enjoyment postponed, are declared to be subject to the following restrictions; namely, that no person should thenceforth, by will or any other instrument, dispose of or settle any real or personal property, in such manner, that the (t) 4 Ves. 227; 11 Ib. 112, and 1 New Rep. 357. (u) 2 Vol. p. 27. |