1838-Evans v. Tweedy. three years after the date of the alleged transaction; but it was insisted, that the claim, notwithstanding the lapse of time, was sustained; first, because, by the will of Hartley, there was a trust for the payment of debts, which was not barred by the lapse of time; secondly, because the parties interested in the personal estate of Hartley had from time to time admitted the debt to be due; and thirdly, because the debt was clearly established, and, as it consisted of unpaid purchase money, it constituted a lien on the lands, and was a charge not barred by length of time, The case of Jones v. Scott (a) was much commented on during the argument; that case having, at the hearing of these exceptions, been argued on appeal, before the House of Lords, but no judgment had then been pronounced. In that case Lord Brougham, reversing the decision of Sir John Leach, held, that a trust for the payment of debts, in a will of personal estate, would prevent the operation of the statute of limitations. Mr. Pemberton, Mr. Spence and Mr. Purvis, for the plaintiffs. THE MASTER OF THE ROLLS said he would postpone deciding the point, as to the statute of limitations, until the result of the appeal in Jones v. Scott was known. On the 16th of August, 1838, the House of Lords reversed the decision of Lord Brougham in Jones v. Scott.[1] [*58] November 6.-*THE MASTER OF THE ROLLS (after stating the case.) As the trust, created by the will of Hartley, affected only his personal estate, and the case of Jones v. Scott has been reversed in the House of Lords, the argument, which is founded on the supposed trust, cannot prevail. And, upon the best consideration which I have been able to give to the evidence of Mr. Tweedy, it does not appear to me that an admission, or such an admission as can be binding upon him or his assignees, is made out against Hartley the son, [After referring to the evidence on this point, his Lordship proceeded] I am therefore of opinion, that no admission or appropriation in favor of General Bowes, or his estate, is established. With respect to the lien for unpaid purchase money, it has undoubtedly been considered as making a vendee or his heir a trustee for the vendor ;[2] but in this case, the suit is to administer the personal estate of Hartley, the father; and on this occasion, Mrs. Bowes claims, as against the personal estate, a legal debt, or the benefit of a specific appropriation; and if it were necessary to consider the question of lien on the real estate, I should be at a (a) 1 Russ. & Myl. 255. [1] Vide 4 Clarke & Fin. 382. 1 Myl. & Cr. 276, n. 1. Freake v. Cranefeldt, 3 Myl. & Cr. 499. [2] Vide Winter v. Lord Anson, 3 Russ. 488, 492, n. 1. S. C. 1 Sim. & Stu. 434, 445, n. 1. 2 Story's Eq. 1217, 1218. Selby v. Selby, 4 Russ. 336, 341. n. 1. 1838.-Douglas v. Congreve. loss for grounds whereon to establish the lien, in a case where it is not known with sufficient certainty, what was the contract between the parties, what was the land, or the quantity of land agreed to be purchased, or what was the price. His Lordship stated the evidence on this point, and concluded thus:-I am of opinion, that Mrs. Bowes had not made out her claim against the personal estate of Hartley, the "father; and, therefore, it appears to [*59] me, that the exceptions filed by the plaintiff must be allowed, and that the petition of Mrs. Bowes must be dismissed, without costs. 1838 DOUGLAS v. CONGREVE. November 12, December 19. A devise of real and personal estate to a feme covert, for life, for her independent use and benefit, with remainder to her husband for life," with remainder to the heirs of her body, in tail," with remainders over; accompanied with a declaration, "that all the aforesaid limitations were intended by the testator to be in strict settlement." Held, that, subject to the husband's life estate, the wife took an estate tail in the real estate, and an absolute interest in the personalty. By the will of George Douglas, dated the 12th day of March, 1831, he expressed himself as follows:-"I give and bequeath unto Mrs. Margaret Stoddart, wife of James Douglas Stoddart, Esq., now residing with me, 50,000l. 3 per cent. consolidated annuities, to be transferred within six months after my decease to her, or as she shall direct, for her own sole and separate use, independent of her husband; and I give, devise and bequeath all my manors, messuages, farms, lands, tithes, tenements, and hereditaments at Chilston and elsewhere, in the county of Kent, with every of their rights, members and appurtenances, together with the use of all my household goods, plate, linen, horses and other cattle, and all my farming and gardening, live and dead stock, implements and utensils, used in and about my said estates, unto the said Margaret Stoddart, for and during the term of her natural life, for her independent use and benefit: and from and after her decease, I give, devise and bequeath all and every my said manors, messuages, farms, lands, tithes, tenements, hereditaments and premises with the goods and chattels therein and thereon as aforesaid, unto and to the use of the said James Douglas Stoddart, for his natural life, with remainder to the use of the heirs of the body of the said Margaret Stoddart, in tail; with remainder, to the use of my nephew, the Rev. Alexander Houstoun, for his natural life, with remainder to the use of the heirs of his [*60] body, in tail, with remainder to the use of my niece Elizabeth Houstoun, for her natural life, with remainder to the use of the heirs of her body, in tail, with remainder to the use of my cousin Aretas Akers, son of the late Aretas Akers, Esq., for his natural life, with remainder to the use of the 1838.-Douglas v. Congreve. heirs of his body, in tail; and I do hereby declare, that all the aforesaid limitations of my estate are intended by me to be in strict settlement, with remainder to my own right heirs for ever." The testator nominated and appointed William Congreve, Ralph Dunn and John Morrison, executors of his said will. At the original hearing, several points arising on this will were determined.(a) The remaining question in this cause was, what interest the plaintiff took in a certain portion of the personal estate of the testator, George Douglas, namely, the household goods, &c. For the purpose of determining that question, it became necessary to ascertain what interest she took under the testator's will, in his real estates at Chilston and elsewhere, in the county of Kent; and that question was submitted to the Court of Common Pleas. The case was argued before that court in Trinity term, 1827, who certified that under the will, the plaintiff took an estate, in tail general, in the real estates.(b) The certificate having omitted to notice the estate given to the plaintiff's husband, it was afterwards amended, and the Judges of the Common Pleas thereby certified their opinion to be, "that the plaintiff took under the will of George Douglas, the testator, an immediate estate, for life, in the real estates of the said testator at Chilston and elsewhere, in the coun[*61] ty of Kent; and an estate in *remainder, in tail general, in the same lands, expectant on the determination of the estate for life, limited to James Douglas Stoddart." The cause was now brought on, for further directions upon the Master's report, and upon the certificate of the Judges of the Court of Common Pleas, of their opinion, upon the case submitted to their consideration by this court; and the plaintiff now asked, that this certificate might be confirmed. It was contended for the defendants, who were devisees of interests in remainder, that the learned Judges had come to an erroneous conclusion, and they desired, that the case might be submitted to the consideration of another court of law. Mr. Pemberton and Mr. G. Richards, for the plaintiff:-The testator has not, by his will, created an executory trust which the court, or the trustees are to carry into execution, by means of a conveyance or settlement, thereby moulding the limitations which the testator has expressed in untechnical language; but here is a strict legal devise, to the plaintiff, for life, "with remainder to the use of the heirs of her body in tail." It cannot now be argued, that this creates any thing but a legal estate tail in the plaintiff. The leading case on this point, and in which the law was restored after some infraction, was that of Jesson v. Wright, (c) in which the decision of the Court of King's Bench was reversed by the House of Lords. In that case, there was a devise to W., for life, with remainder unto the heirs of his body, as W. should appoint; and in default thereof, then to the (b) Sce 4 Bing. N. C, 1. (c) 5 M. & S. 95. S. C. 2 Bligh, 1. (a) See 1 Keen, 410. 1838.-Douglas v. Congreve. heirs of W.'s body, share and share alike, "as tenants in common; and [*62] if one child, the whole to such child. It was contended, that the testator did not intend the expression, "heirs of the body," in its strict sense. The House of Lords, however, held the contrary. Lord Redesdale said, “It cannot at this day be argued, that because the testator uses in one part of his will words having a clear meaning in law, and in another part other words inconsistent with the former, that the first words are to be cancelled or overthrown." Here, the devise is not to trustees, in trust to convey or settle, but a devise to the wife, for life; with remainder to the husband, for life; with remainder to the heirs of the body of the wife; and in default, over; with an ultimate remainder to the testator's right heirs. There is nothing to prevent this settlement from being a strict settlement, since, by a mere fiction of law, which gives an imaginary recompense to the issue, the courts sanction the issue in tail being barred. The difficulties which would arise from a construction different from that which has been arrived at by the Court of Common Pleas are insuperable. In what way can the court deal with this case? Is the court to say, that, because the testator has expressed his intention, that the limitations should be in strict settlement, it will settle the estate in a mode different from that which the terms of the legal devise warrant ; and that too in a case where the testator has left nothing for the court to do-no discretion to exercise-but where, on the contrary, he has executed the intention himself; will the court execute a legal devise, in the way in which it would an executory trust? The words give a clear estate tail, and this legal limitation is not to be altered by subsequent doubtful *expressions; and where the court [*63] is not called on to make a settlement, but to declare what the expressions mean, it has no jurisdiction to alter the legal effect of the limitations. Assuming, however, that the heirs take as purchasers, then they have a mere contingent remainder, which might be immediately defeated. The court would do nothing, therefore, by construing this a limitation to the heirs, as purchasers; to render it effectual, an estate to trustees to preserve contingent remainders, must be introduced into the will; for otherwise, the husband and wife might concur in destroying the contingent remainders; but suppose an estate to trustees to be introduced into the will, how are the words "heirs of the body in tail" to be moulded? If Mrs. Douglas had sons and daughters, are these words to be construed as first and other sons, in tail male, with remainder to the daughters successive, or as a class; or is the limitation to sons to be in tail general? How are the limitations to the sons of daughters, and to the daughters of sons to come? Are the daughters of a son to take in priority to the sons of a daughter? Are "heirs" to be read generally, and are sons and daughters to take equally; or are sons to take as one class, and the daughters to take as another class; are the sons to take successive, and the daughters in a class? How can the court declare what the intention of the testator was? No two persons could agree as to what was meant by strict settlement, and the further the court proceeds, the more difficulties it encounters, and the more the court must become convinced, that the legal construction of this devise, which the Court of Common Pleas has arrived at, is the sound construction; and that there is nothing to enable the court to cut down the legal estate tail, and declare that the plaintiff takes a life estate only. [*64] *It was suggested, when the case was before the court, that the limitation to the plaintiff, for life, was for her separate use, and was a trust estate; and that the limitation to the heirs of her body, in tail, was a legal remainder, and that, therefore, they could not coalesce; but the estate for life is not less a legal estate, because this court prevents the husband from interfering with it. The life estate is given to the wife, and not to a trustee, and a court of law would altogether disregard the direction, that she was to hold it for her separate use. The decision of the Common Pleas must be founded on this, that the two estates are legal and will coalesce; if this were not the case at law, the estates could not unite. The rules of the courts of law are equally applicable to this court, for no case exists where a devise, construed to be a legal estate in a court of law, has been construed differently, or as an equitable estate in equity. Subject to the life estate of her husband, the plaintiff is, therefore, tenant in tail of the real estates, and has an absolute interest in the personalty. Mr. Kindersley and Mr. Thompson, for Houstoun Douglas and Elizabeth Douglas; and Mr. Glasse for Aretas Akers. It is impossible not to see, that the construction which the Court of Common Pleas has put on this will entirely defeats the intention of the testator, distinctly, satisfactorily and unambiguously expressed on the face of his will. We admit, that the rule in Shelley's case is fairly enunciated, as being universal and without exception; but it is a rule of tenure, and not of construction, and the court can never, by means of this rule, arrive at the intention of the testator on the contrary, the rule is not to be regarded, until you [*65] have first ascertained, in what sense the testator has used the *expres sion "heirs," or "heirs of the body." Mr. Fearne, in his Treatise, (a) says, "Nothing can be better founded than Mr. Hargrave's doctrine, that the rule in Shelley's case is no medium for finding out the intention of the testator; that, on the contrary, the rule supposes the intention already discovered;" and again, "when it is once settled, that the donor or testator has used words of inheritance according to their legal import, has applied them intentionally, to comprise the whole line of heirs to the tenant for life, and has really made him the terminus or ancestor, by reference to whom the successor is to be regulated, then comes the proper time to inspect the rule in Shelley's case." According to this, the court must first ascertain what the testator (a) 8th edit. 187. |