1844. GOYMOUR v. PIGGE. prior limitation, Ellicombe v. Gompertz (a), and consequently the life estate of Mrs. Pigge was not enlarged by the subsequent devise on the death of Mrs. Pigge without leaving issue, &c. The limitation over is therefore good, and, in the events which have happened, has taken effect. But the Defendant will insist, that whatever might have been the extent of Mrs. Pigge's estate, and even if she were mere tenant for life, the limitation over, being contingent (which we admit, it being a limitation over with a double aspect; Doc dem. Davy v. Burnsall (b)), was destroyed by the recovery; but the answer is, that the estate being copyhold, the freehold which was in the lord was sufficient to support all contingent estates, Scriven on Copyholds (c), and to prevent their being destroyed by the recovery suffered by a mere tenant for life. Mr. Turner and Mr. Chandless, contrà. The daughter, Mrs. Pigge, took an estate tail, which, with all the subsequent remainders, has been destroyed by the customary recovery. A gift to A. for life with a limitation over, in case of A's dying without issue, primá facie, gives an estate tail to A.: it is for the Plaintiff to make out the contrary. The general scope and object of the will is, that the children and their issue should all inherit, and that the estate should not go over until there should be an entire failure failure of such issue. The testator says, The limitation under which the Plaintiff claims has been destroyed by the recovery. Mr. Rogers, for a mortgagee, asked to have the bill dismissed against him with costs. Mr. Kindersley in reply. The word "estate," in which the gift to the third and subsequent child is expressed, would carry the fee, as in the case of the first and second child; and then the testator afterwards adds that regard is to be had to the respective deaths of such children under age, and without leaving lawful issue of their bodies &c. The issue, therefore, of the second and subsequent children would be provided for under the prior limitation. 1844. GOYMOUR บ. PIGGE. 1844. GOYMOUR V. PIGGE. The following cases were cited; Bamfield v. Popham (a), Doe d. Lyde v. Lyde (b), Doe d. Gilman v. Elvey (c), Malcolm v. Taylor (d), Franks v. Price (e), Doe d. Lean v. Lean (g), Lewis d. Ormond v. Waters (h), Esdaile v. Gall (i), Parr v. Swindels (k), Nicholl v. Nicholl (1), Tarbuck v. Tarbuck (m), Hutchinson v. Stephens (n), Grimshawe v. Pickup (o), Vanderplank v. King. (p) May 6. The MASTER of the ROLLS. The question is, what estate the testator's daughter, Mary Ann, took under the will? The Defendant alleges that she took an estate tail; that a recovery of the estate was suffered; and that by reason of such recovery and a settlement and will, the estate became vested in the Defendant. The Plaintiff, on the contrary, alleges that the will gave a life estate only to Mary Ann Nunn ; and if such be the case, he is entitled to the estate under the devise over. After a devise to Protesia for life, there is another distinct devise to Mary Ann for life; it is clear that the intention was to give to Mary Ann an estate for life only; and the question is, whether the words which the testator has used are such as necessarily enlarge that estate to an estate tail. The gift of a life estate to Mary Ann is immediately followed by gifts to the children, successively, in words which probably give suc (a) 1 P. Wms. 54. (d) 2 Russ. & Myl. 416. (g) 1 Q. B. Rep. 229. cessive (i) 1 Russ. & Myl. 540. (l) 2 W. Black. 1159. cessive estates tail to the children. The testator contemplated the children of Mary Ann as the persons who, after her, were to have the succession; and the issue of the bodies of the children, respectively, were to have the succession after them; and such children and issue, respectively, being, by the express words he has used, shewn to be in his contemplation, he has used the words upon which the question arises, "in case my said daughter Mary shall depart this life without leaving issue of her body lawfully begotten, or having issue, such issue shall die under the age of twenty-one years without leaving issue lawfully to be begotten as aforesaid." I am of opinion that these words must be construed with reference to the preceding clauses, and that the words" issue of the body," when used with reference to the daughter, must be understood to mean the "children," to whom, subject to the daughter's life estate, the property is previously devised. It is as if the testator had said, "in case my daughter shall depart this life without having any child, or having children, such children shall die under twenty-one years of age without leaving lawful issue." The issue of the children being issue of the mother, the estate was to go over only in the event of there being no issue of the mother, but still the words do not appear to me to be such, as to connect the life estate given to the mother with the implied gift to the issue, and to give to the mother an estate tail by implication. I am therefore of opinion, that Mary Ann, the testator's daughter, upon the true construction of the will, took only an estate for life, and that the Plaintiff is now entitled to the estate under the devise over. Let an account be taken of the rents for six years before the bill was filed, and declare that the Defendant 1844. GOYMOUR v. PIGGE. 1844. GOYMOUR v. PIGGE. Pigge was not entitled to make the mortgage of the 29th of September 1837 to Veargitt, and that he ought to redeem the same. May 8. Executors were directed to apply a competent part of the interest of a fund towards the maintenance and education of the testator's son, during his minority, and accumu late the rest; tained twenty- died between THE CAMPBELL . CAMPBELL. HE testator gave his residuary estate to his executors, "upon trust to apply a competent part, at the discretion of his trustees, of the interest and dividends arising therefrom, for or towards the maintenance and education of his son James Campbell, during his minority, and from time to time to accumulate the residue of such interest, &c., and after he should attain twenty-one, to pay and apply a moiety of the last-mentioned interest and dividends, in and for his support, until he attained twenty-five; and after he should have attained twentyfive years, upon trust to pay, transfer, and assign the said residue of his personal estate unto his said son; but in case his said son should attain twenty-one, but should die before he attained twenty-five, leaving children him surviving," then, upon certain trusts, for such children. And in case he should die under twenty-five years without leaving any children, then in trust for the testator's daughters equally. The testator died in May 1835. On the 11th of January 1844, 5481. was received for a half-year's dividends on a sum of Bank 3 per cents. standing payment of the half yearly dividends. Held, that there should be no apportionment, and that he was entitled to the whole half-yearly dividend received after he came of age. |