one who existed of that class, and who was not beyond the limits of perpetuity-is to take nothing-the whole being void. I perfectly understand that it could be said that that was a thing against which, although it was originally so determined, there was a great deal to be said, but there would also be a great deal to be said in its favor. But then I do not think that can be the ground upon which the Lords Justices of Appeal went, because it certainly seems clear that that has, at least since the time of the decision of Lord Kenyon, or at all events since the decision of Sir William Grant, more than sixty years ago, been considered positive and settled law, and there has been no dispute at all about its being law; and now it is no more competent to your Lordships' House to say that you will reverse that long-established law than it was for the court below, the Court of Appeal, to do it. But I do not think that it could have been upon that ground that the Court of Appeal went, for Lord Justice James refers to, the reasoning of Vice-Chancellor Malins, in Re Moseley's Trusts and says that but for Smith v. Smith, "I should without any doubt or hesitation have concurred in that conclusion, and I rather think that the Master of the Rolls would have done so too." Now, my Lords, the strange and peculiar thing there is, that when we look at the reasoning of the Vice-Chancellor in Re Moseley's Trusts, in which Lord Justice James supposes the Master of the Rolls would have concurred, we find that in Hale v. Hale, the Master of the Rolls gave a long and elaborate judgment, the pith and object of which was to show that he did not agree with the reasoning of Vice-Chancellor Malins in Re Moseley's Trusts, and I confess myself, upon looking at the matter, I have been puzzled to make out what was the ground, on which the Court of Appeal went. However, my Lords, putting that aside, I at once agree with what my two noble and learned friends who have spoken before me, have said. It seems to me that in the first place, it is established by a long series of authorities, that if the gift be to a class some of whom are beyond the limits in the way of remoteness, the whole is void-I regret that it is so in this case, but I cannot help it—it is the rule. Secondly, I think it has been established by a long series of authorities that we are to construe the will just as if there was no such rule of law as that of perpetuity or remoteness, and see whether the gift is to a class, and afterwards ascertain whether the class is one, part of which is beyond the limits of remoteness. Construing it in that way I certainly do agree entirely with the Master of the Rolls in Hale v. Hale that Vice-Chancellor Malins does construe this will contrary to what I should have thought was the obvious construction, and does so entirely by ignoring,-in all he says at least, he may have had them present to his own mind I cannot tell that,-the words which occasion the whole difficulty and doubt. 1 Taking that view of the matter I do not think it is necessary to go farther into the question than to say that I quite agree with what the Master of the Rolls said in Hale v. Hale; and taking that to be the construction of the will, and taking the rule as I have previously said to be established by authority, the only doubt I can entertain as to the propriety of affirming this decision, and as a consequence affirming the decision in Smith v. Smith, is, what I said at the beginning, that I am not at all sure that I appreciate the grounds on which persons of such learning as the three Lords Justices of Appeal thought that that reasoning was not satisfactory. LORD WATSON. My Lords, at the conclusion of the argument at the bar, the main, I may say, the only, difficulty which I felt in this case arose from a suspicion that I had failed to appreciate the grounds of judgment assigned by the learned Vice-Chancellor, which received the warm approval, apparently, of the learned judges of the Court of Ap peal. But I have been very much relieved by the observations which have fallen from your Lordships, and I am constrained to believe that the error, if I may so call it, upon which that judgment of the ViceChancellor is based, arises, I will not say from his ignoring these very important words in Joseph Moseley's bequest "which issue shall afterwards attain the age of twenty-one years or die under that age, leaving issue at his, her, or their decease or deceases respectively," but at all events from his having failed to give their due and proper effect to these words. My Lords, I am quite satisfied that according to the just construction of this will, the words must be read as part of the description in which they are imbedded, and that they do aptly express this qualification that no grandchild of the testator shall take who does not attain the age of twenty-one, or who dies before that period not leaving surviving issue of his body. Now, that being the right construction of the will, as your Lordships have also held, I think that the legal principles applicable to the case are in themselves very clear, and not only so, but that they are principles established by a long, weighty, and consistent series of authorities. My Lords, it would be a waste of time of this House were I, after the full exposition of the law which has been given by your Lordships, to make any comment upon those cases. Therefore I content myself with saying that I concur with your Lordships' views both as to the construction of this will and also as to the principles of law which must govern the case. CHAPTER XXXVI SEPARABLE LIMITATIONS, INDEPENDENT GIFTS, AND LIMITATIONS TO A SERIES LONGHEAD d. HOPKINS v. PHELPS. Ejectment and special case. 30th and 31st August, 1706, John Phelps, in consideration of an intended marriage with Mary Moore, conveyed the premises in question to the use of himself and his heirs till the marriage. And from the marriage to trustees for forty years, on trusts which never took effect; remainder to John Phelps for ninetynine years, if he so long lived; remainder to trustees for the life of John Phelps, to preserve contingent remainders; remainder in case Mary Moore should survive John Phelps, to trustees for fifty years, on trusts which never took effect; remainder to Mary Moore for life for her jointure; remainder to trustees for 1000 years on trusts after-mentioned; remainder to the first and other sons of John Phelps on said Mary begotten successively in tail male; remainder to the right heirs of John Phelps. The trust of the 1000 years' term was declared, that, "in case the said John Phelps should happen to die without issue male of his body, on the body of the said Mary begotten, or if all the issue male between them shall happen to die without issue, and there should be issue female of the marriage, which should arrive respectively to the age or ages of eighteen years, or be married: Then, from and after the death of the survivor of John Phelps and Mary Moore without issue male, or in case at the death of the survivor there shall be issue male, then from and after the death of such issue male without issue, the trustees should raise £500 for one daughter, £1000 for two; and, in case of three or more, should assign the whole term to their use; with a clause of maintenance till eighteen or marriage." There was issue of this marriage one son, Richard, and four daughters, who all lived to eighteen, and were married; and they, or their representatives, are the now defendants. 1731, John Phelps died. 1744, Richard Phelps, the son, died without issue; but devised to his wife Mary, (who afterwards married Thomas Hopkins, the lessor of the plaintiff), inter alia the premises in question. 1760, Mary, the mother, died, and the four daughters entered, against whom this ejectment is brought. Glyn, Serjeant, for the plaintiff, argued, that the trusts of the term were void, being on too remote a contingency,—the dying of the issue male of the marriage without issue generally. But THE COURT, without hearing counsel for the defendants, were clear that the first part of the contingency was good, viz., "in case John and Mary died without leaving issue male." And as that happened in fact to be the case, they would not enter into the consideration how far the other branch of the contingency might have been supported; which could only come in question, in-case Richard had survived both his parents. So ordered the Postea to the defendants.1 PROCTOR v. BISHOP OF BATH AND WELLS. (Court of Common Pleas, 1794. 2 H. Bl. 358.) In this quare impedit, brought to recover the presentation to the church of the rectory of West Coker in Somersetshire, the declaration stated, that one William Ruddock was seised in fee of the advowson, and presented, that on his death it descended to his two nieces Jane and Mary Hall, that Jane Hall intermarried with Nathaniel Webb, and Mary with Thomas Proctor: that Nathaniel Webb died, his wife surviving him, whereby the said Jane in her own right, and Thomas Proctor and Mary in her right were seised, that the church then became vacant by the death of the incumbent, whereby the said Jane Webb and Thomas Proctor in right of the said Mary, presented their clerk; that Jane Webb died, upon whose death her whole share of the advowson descended to her son Nathaniel Webb, who thereupon. became seised in fee in coparcenary, with Thomas Proctor and Mary his wife; that Thomas Proctor died, his wife surviving him, whereby the said Nathaniel Webb the son, and Mary Proctor became seised. There were then set forth several presentations on vacancies by Nathaniel Webb and Mary Proctor. The death of the said Nathaniel Webb was then stated, whose share descended to his son Nathaniel Webb, who became seised in coparcenary with Mary Proctor: that Mary Proctor died, upon whose death her share descended to her grandson Thomas Proctor, who became seised, together with the last-mentioned Nathaniel Webb: that the church again became vacant, upon which, they not agreeing upon any person to be presented by them jointly, the said Nathaniel Webb presented the said Thomas Proctor, as in the first turn of the said Jane Webb, the elder sister of the said Mary Proctor: that he died and his share descended to Elizabeth Proctor, his sister, the present plaintiff, who was entitled to represent in the first turn of the said Mary Proctor, the younger sister of the said Jane Webb, yet, &c. The bishop pleaded the usual plea as ordinary; and the other defendants-That true it was that the said Nathaniel Webb the grandson of Jane Webb and the said Mary Proctor were seised of the 1 See Doe d. Herbert v. Selby, 2 B. & C. 926, ante, p. 117. advowson in coparcenary, and that Mary Proctor died so seised, and that the said Nathaniel Webb presented as in the first turn of the said Jane Webb, &c.: but the said defendants further said, that the said Mary Proctor being so seised made her last will and testament, and gave and devised unto the first or other son of her grandson, the said last-mentioned Thomas Proctor, that should be bred a clergyman and be in holy orders, and to his heirs and assigns all her right of presentation to the said rectory, &c.: but in case her said grandson the said last-mentioned Thomas Proctor should have no such son, then she gave and devised the said right of presentation unto her grandson the said Thomas Moore, his heirs and assigns forever: that afterwards the said Mary Proctor died so seised, leaving the said last-mentioned Thomas Proctor and Thomas Moore her surviving, and that afterwards the said Thomas Proctor died without having ever had any son; whereby and by virtue of the said last will and testament of the said Mary Proctor, the said Thomas Moore became seised of all the share of the said Mary Proctor of and in the said advowson, &c., wherefore it belonged to the said Thomas Moore to present, &c. as in the first turn of the said Mary Proctor the younger son of the said Jane Webb, &c. To this plea there was a general demurrer, which was twice argued; the first time by Bond, Serjt., for the plaintiff, and Heywood, Serjt., for the defendants; and a second time by Adair, Serjt., for the plaintiff, and Le Blanc, Serjt., for the defendants. THE COURT (absent Mr. Justice BULLER) were clearly of opinion that the first devise to the son of Thomas Proctor was void, from the uncertainty as to the time when such son, if he had any, might take orders; and that the devise over to Moore, as it depended on the same event, was also void; for the words of the will would not admit of the contingency being divided, as was the case in Longhead v. Phelps, 2 Black. 704; and there was no instance in which a limitation. after a prior devise, which was void from the contingency being too remote, had been let in to take effect, but the contrary was expressly decided in the House of Lords in the case of The Earl of Chatham v. Tothill, 6 Brown Cas. in Parl. 451, in which the judges founded their opinion on Butterfield v. Butterfield, 1 Vezey, 134. Consequently the heir-at-law of the testatrix was entitled. Judgment for the plaintiff.2 2 Per Jessel, M. R.. in Miles v. Harford, 12 Ch. D. 691, 702-705: "As I understand the rule of law it is a question of expression. If you have an expression giving over an estate on one event, and that event will include another event which itself would be within the limit of perpetuities, or, as I say, the rule against perpetuities, you cannot split the expression so as to say if the event occurs which is within the limit the estate shall go over, although, if that event does not occur, the gift over is void for remoteness. In other words, you are bound to take the expression as you find KALES FUT.INT.-67 |