assigns, all his real estate which he was then possessed of, and all that given and devised to him by his brother, John Wilkinson, but in case his nephew, William Shaw, died without issue, he gave and devised the estate given and devised to him, William Shaw, to the children of his niece, Hannah Grey, the wife of William Grey, their heirs and assigns, share and share alike, and if but one child to that one child.

On the death of John Wilkinson, William Shaw entered into possession of the onethird part devised to him by the will of John Wilkinson, and on the death of Henry Wilkinson of the other two-third parts of the said real estate of the testator, John Wilkinson; and in the year 1818 he suffered [157] a common recovery of the whole of such real estate to enure to the use of himself, his heirs and assigns.

William Shaw, by his will, dated the 1st of September 1842, gave and devised all his real and personal estate unto and to the use of the Defendant, John Birks, his executors, administrators and assigns.

William Shaw died on the 28th of January 1854, without having had any child. Hannah Grey died some time ago, having had four children only, two of whom were the Plaintiffs in this suit, the two others having died infants, intestate and unmarried, in the lifetime of the said William Shaw. These two surviving children now filed this bill against John Birks for partition, claiming to be entitled, on the death of the said William Shaw without ever having had a child, under the executory devise to the children of the said Hannah Grey, to one undivided third part of the real estate of the testator, John Wilkinson.

The Defendant demurred for want of equity.

Mr. Rolt, Q.C., and Mr. Freeling, for the demurrer. In the gift over "child or children of his body lawfully begotten" means "issue," and therefore it is equivalent to a gift over in case William Shaw should die without issue, and such an executory devise converts the estate in fee-simple, originally given to him, into an estate tail.

In Raggett v. Beaty (5 Bing. 243) the devise was to A. for life, and "in case the said A. die and leave no child lawfully begotten of his own body," gift over for the benefit of certain persons [158] named, "or their heirs ;" and the Court of Common Pleas certified, without giving reasons, that in their opinion A. had an estate tail. In Lees v. Mosely (1 Y. & C. (Exch.) 589) the devise was to A. for life, with remainder "to his lawful issue and their respective heirs, in such shares and proportions, and subject to such charges as A. should by deed or will appoint; but in case A. shall not marry and have issue who shall attain the age of twenty-one years," then gift over to B.; and it was held that A. took an estate for life, with remainder to his issue, as purchasers. In Wyld v. Lewis (1 Atk. 432) the devise was of all the testator's lands, &c., to A., his wife, and if she should have no son or daughter by the testator begotten, and for want of such issue, then to B. in fee, and Lord Hardwicke considered that A. took an estate tail. [The Vice-Chancellor referred to Robinson v. Robinson (2 Ves. sen. 225; 1 Burr. 38; 3 B. P. C. 180).] In Doe d. Cock v. Cooper (1 East, 229) the devise was to A. for life, with remainder to the lawful issue of A. as tenants in common, but in case A. should die without leaving lawful issue, then to B. in fee, and this was held to be an estate tail in A.; and in Doe d. Cannon v. Rucastle (8 C. B. 876) a similar construction was put upon a devise to S. for life, remainder to the issue of his body lawfully begotten, if more than one equally among them, and in case he shall not leave any issue of his body lawfully begotten at the time of his death, then to the testator's heirs.

In Walter v. Drew (Com. Rep. 373) the testator willed that, if his eldest son A. should happen to die and leave no issue of his body, then, after the death of A., he devised his lands to B., to hold the same after the death of A. to him and his heirs, and this was held to confer upon A. an estate tail by implication, with remainder to B. in fee. In Broadhurst v. [159] Morris (2 B. & Åd. 1) the devise was to A. and his children lawfully begotten, for ever; but in default of such issue at his decease, to B., his heirs and assigns for ever; and the decision was that A. took an estate tail. In Doe d. Jearrad v. Bannister (7 M. & W. 292) the devise was to A. and her heirs if she has any child, if not, after the decease of A. and her husband, then to B. and her heirs; and the word "heirs" in the first gift was read "heirs of her body," so as to give A. an estate tail.

In Doe v. Frost (3 B. & Ald. 546) there was a devise to A. in fee, and if he should

leave no child, children or issue, the estate on the decease of A. was to become the property of the heir at law, subject to such legacies as he might leave by will to any of the younger branches of the family; and it was held that A. took an estate in fee, with an executory devise over, to take effect in the event of his dying without leaving children at the time of his death. In Ex parte Davies (2 Sim. (N. S.) 114) the devise was of residuary real and personal estate to A., his heirs, executors, administrators and assigns; provided that, if A. should die without leaving any lawful issue of his body, the real estate should, at his death, be divided into two equal parts, and the testator gave onehalf to B., his heirs and assigns, and the other to C., his heirs and assigns, A. having it in his power to provide for the children of his late sister; and the Vice-Chancellor Lord Cranworth held that this was a gift in fee to A., with an executory devise to take effect on his death, if he left no issue.

But in Dunk v. Fenner (2 Russ. & My. 557) the devise was of the rents of all the testator's real estates to his daughter A. for life, and at her death all the estates to her heirs as tenants in common; if she should leave but one child such child should possess [160] the whole; but if she should die without issue, then, at her decease, gift over; and it was held that A. took an estate tail. [THE VICE-CHANCELLOR. That has often been spoken of as a strong case.]

Mr. Willcock, Q.C., and Mr. E. Bury, for the bill. This was a clear gift in fee to W. Shaw, with an executory devise over on his death: Doe d. Smith v. Webber (1 B. & Ald. 713). In Matthews v. Gardiner (17 Beav. 254) the devise was upon trust, after the death or second marriage of the testator's wife, to assign the estate and moneys to A., to hold to her and her lawful heirs, but in case she should not happen to leave any child, to B. in fee; and this was held to be an estate in fee, with an executory devise over.

Of two possible constructions the preferable one is that which does not require any change of the words, which this construction does not, whereas that contended for by the Defendant requires that "children" should be read "issue," and gives no effect to the words "on his decease" in the limitation over. 66 Child or children " are not properly construed issue in such a gift: Stone v. Maule (2 Sim. 490).

Mr. Rolt, Q.C., in reply.

Dec. 6. THE VICE-CHANCELLOR Sir W. PAGE WOOD. The question raised by this demurrer is upon the construction of a legal devise, and it is brought into this Court by a suit for partition. [His Honour referred to the terms of the will, and continued:] The point is a very short one, although the authorities upon the general question are extremely numerous. I have to consider what is the ef-[161]-fect upon the devise to William Shaw and to his heirs and assigns for ever, which is a clear devise in fee-simple of the subsequent words "but, in case he should die without child or children of his body lawfully begotten," coupled with a gift over "on his decease" to other persons in fee. The Defendant contends that an estate tail is limited to W. Shaw by the effect of these words, construing them together with the first gift to W. Shaw; and that the limitation over, being dependent upon an estate tail, is simply a remainder, according to the general rule, that every limitation over shall be construed as a remainder which can be so taken, and that this remainder has been barred by the recovery suffered by W. Shaw.

On the other side it is contended that W. Shaw took an estate in fee-simple under this will, with an executory devise over upon his death without any child or children, whatever the meaning of those words may be.

The strongest case which was cited in favour of the Defendant was that of Wyld v. Lewis (1 Atk. 432). I cannot help thinking that, according to more recent decisions, the gift over in that case would be insufficient to authorise the Courts at this day to construe it an executory devise. Lord Hardwicke relied chiefly on the fact that, in the event of the death of the devisee without leaving children, but leaving grandchildren, the estate would go over; and the extreme improbability of that being the testator's intention induced him to hold that an estate tail was limited to the devisee. That this was his reason appears plainly, not only from the language of the judgment in the report in Atkins, but also from a note in West's Reports, which states that the ground of the decision was that the construction that the grandchildren were to be deprived of all [162] interest by the gift over was too improbable. Subsequent

decisions, however, have removed that difficulty; for, in Doe v. Webber (1 B. & Ald. 713), which was nearly identical in the words of the gift over, being in default of child or children, it was decided that those words meant in default of issue; and so far I agree with the Defendant in this case.

In Doe v. Webber (Ibid.) the devise was to M. H., her heirs, executors, administrators or assigns for ever; and in case M. H. shall happen to die and leave no child or children, then to J. B. and her heirs for ever, paying the sum of £1000 to the executors of M. H., or to such person as she by her last will and testament should direct.

The subsequent words in that case naturally induced the Court to construe the limitation over to be an executory devise. The words were, leaving “no child or children," which are as strong as the words in this case; and Lord Ellenborough, C.J., said that the gift must be construed as a devise in fee to M. H., which would enable her to give the estate to her issue, if she had any. The effect of the will, he said, was, "It contains, first, a devise to Mary Hiles in fee, which would enable her to dispose of the fee amongst her offspring, if she should leave any at her death; but, if she should not leave any, then, instead of the fee in the two tenements devised over on the happening of that event, and which upon that event are given to Jane Barnes and her heirs, the sum of £1000 was to be paid by Jane Barnes or her heirs to the executors or nominee of Mary Hiles. This is, therefore, like the case of Roe v. Jeffery (7 T. R. 589), which was a devise to J. F. and to his heirs for ever; but, in case J. F. should depart this life and leave no issue, then the testator devised over estates for life only. In that case the first devise was held to be in fee, and not [163] in tail, and the limitation over a good executory devise upon the event of a failure of issue at the time of his death; for Lord Kenyon says, 'The persons to whom it was given over were then in existence, and life-estates only were given to them.' The payment of £1000 in the present case is equally strong in that respect, it being a personal provision, and having to be made to a person or persons appointed by Mary Hiles in her will; the event contemplated by the testatrix seems to have been a proximate, and not a remote, event, namely, a failure of children or issue at Mary Hiles's death, and not an indefinite failure of issue, which might happen at any remote period; and Mary Hiles never having had any child, the event has happened on which those two tenements were given over."

From the decision also in Raggett v. Beaty (5 Bing. 243) I apprehend that I must read this will as a distinct devise in fee to W. Shaw, and then, in case he should die without issue of his body, on his decease the estate is given over. Then the question is, what is the effect of those words "on his decease?" and I am bound to concede that there is no express decision upon the effect of those words alone upon a gift like this of real estate. With regard to personal estate, in Dunk v. Fenner (2 Russ. & My. 557), Pinbury v. Elkin (1 P. Wms. 563), Trotter v. Oswald (1 Cox, 317), and Rackstraw v. Vile (1 S. & S. 604), it has been decided that, where such words occur, an indefinite failure of issue is not intended, but simply a gift over in the event of the legatee dying and not leaving issue then living. That rule may have been arrived at in the case of personal estate from the circumstance that it is not necessary to construe limitations over to be remainders; and, unless some period is limited, the apparent intention of the testator will be entirely defeated in the event of the legatee [164] not leaving any issue living at his death; whereas, in the case of real estate, the limitation, if construed as a remainder, would not fail altogether, but would take effect upon the determination of the estate, there being nothing to prevent this in the rule against perpetuity, and the construction being assisted by the rule that in such a case the limitation must be construed as a remainder, if possible, instead of an executory devise.

The case then comes back to this, there is a clear devise in fee in the first instance, and then, in case the devisee die without issue, a gift over on his death; and the question is whether I am to cut down his interest to an estate tail. Although this question has never been actually decided, because there were some additional circumstances in the cases which I am about to mention, yet I cannot doubt what was the opinion of the Judges upon it. In Doe v. Frost (3 B. & Ald. 546) the devise was to the testator's "well-beloved son, William Frost, and his heirs for ever"-it was not quite

so strong perhaps as this, because the word "assigns" was not used in that gift-" of all his houses and lands; and if the said W. Frost should have no children, child or issue, the said estate was, on the decease of the said W. Frost, to become the property of the heir at law, subject to such legacies as he the said W. Frost might leave by will to any of the younger branches of the family." Those latter words, no doubt, would of themselves have been sufficient to sustain the judgment of the Court; and Abbott, C.J., relied principally upon them; but Bayley, J., in the same case, said, "Here the will gave the estates to William Frost and his heirs for ever, and if he had no children, child or issue, the estate was, on his decease, to become the property of the heir at law. It does not seem to me that this contemplates a devise over on an indefinite failure of issue, but only on the failure of issue at [165] the time of W. Frost's death; and the subsequent part of the clause confirms me in this opinion;" and he then proceeded to speak of that portion of the clause. Holroyd, J., put it more strongly upon the words "on his decease;" he said, "If it appeared by the subsequent limitation that the estate was to go over upon an indefinite failure of issue, the previous estate in fee given would be converted into an estate tail. But I think, in the present case, that the estate was not to go over upon an indefinite failure of issue, for the contingency is that the estate is, if W. Frost had no children, child or issue at his decease, to go over to the heir at law. The will, therefore, contemplates a failure of issue at the decease of W. Frost, and the estate in fee is not converted by the subsequent limitation into an estate tail :" and he relied entirely on that peculiar wording of the will. In the case before the present Lord Chancellor, when Vice-Chancellor, of Ex parte Davies (2 Sim. (N. S.) 114), exactly the same point occurred. The gift over there was on the decease of the devisee, there being first a clear gift in fee to him, and then words which, without restriction, would have limited that to an estate tail, and then a gift over at his death, with additional circumstances. Lord Cranworth relied entirely on the gift over at the death of the devisee as limiting the gift in fee to him, and not cutting it down to an estate tail; and he says that he relied on that before his attention was called to the other circumstances which confirmed his construction. This case must, therefore, rest entirely on the words giving the property over on the decease of the devisee, coupled with the whole scope of the limitation, which I am bound to regard. Several cases have been cited in which, the words being "after his decease" (which Lord Hardwicke regards in Beauclerk v. Dormer (2 Atk. 308) as equivalent to "on his decease," though the words are not perhaps quite so strong), it has been held that an estate tail vested in the party who [166] first took, and that the subsequent limitations were estates in remainder. In some of those cases, as in Broadhurst v. Morris (2 B. & Ad. 1), the judgment of the Court was merely a certificate, without giving the reasons; but that decision is open to the observation which is made in Ex parte Davies (2 Sim. (N. S.) 114), that the Court held only that an estate tail was given to the devisee, and that being clear, the rule applied with great force that the limitation over should not be construed to be an executory devise, when it might be a contingent remainder after an express estate tail. Lord Cranworth further observes that in Broadhurst v. Morris (2 B. & Ad. 1) no opinion was given whether the estate was or was not limited over in defeasance of that estate tail: all that the Court decided was what was the estate given to the first taker. The devise in that case was to William Broadhurst and his children lawfully begotten for ever, but in default of such issue at his decease there was a gift over. Now, the first limitation to him and his children lawfully begotten for ever would confer an estate tail upon a person who had then no child, according to the rule in Wild's case (6 Rep. 17); and therefore William Broadhurst took an estate tail; and that being clear, the words "on his decease," or "after his decease," may be merely ordinary words of limitation in remainder after an estate tail. I think that, in the other cases, there was either an express estate tail first given or an estate for life, with remainder to the issue, in such a form that, if they took as purchasers, they would only take life-estates; and, according to the rule in Wild's case (Ibid.), in order to effectuate the general intention, the limitation must be construed as an estate tail in the first devisee, and then the gift over must be a remainder. In no case in which a clear estate in fee-simple has been limited by the first words has that estate been reduced to an estate tail, in order to construe the words of the gift over on the death of the devisee without issue, to be a

remainder. It [167] is begging the question to say that the gift over is to be taken to be a remainder, because it is necessary first to make out that the gift in fee is cut down to an estate tail. In this will there is a clear gift in fee; the testator has made three similar gifts: first, two-thirds to Henry Wilkinson, his heirs and assigns for ever, then one-third to William Shaw and to his heirs and assigns for ever, and then, in the event of his death without child or children, &c., on his decease, to the children of Harriet Grey, their heirs and assigns for ever; in each case manifestly intending to give an estate in fee-simple. It would be a singular construction if I were to hold that William Shaw, taking this estate in fee-simple, on which I cannot engraft a remainder, but every limitation over upon which must be an executory devise, I must first cut down his estate in fee to an estate tail, in order to enable me to decide that the gift over is simply a remainder upon such estate tail, created by the anterior devise. I think, therefore, that I must decide, according to the authorities of Doe v. Frost (3 B. & Ald. 546) and Ex parte Davies (2 Sim. (N. S.) 114), and having regard to the clear gift in fee-simple to William Shaw in this case, that the true construction of this will is that he took an estate in fee-simple, subject to an executory devise over on his death, if he should die without issue. The case is free from the difficulty felt in Wyld v. Lewis (1 Atk. 432), because William Shaw takes a clear estate in fee, which he can give to his issue, if he should die without children, but leaving grandchildren.

The demurrer must, therefore, be overruled.

[168] STEVENS v. BENNING. Dec. 7, 1854.

[Affirmed, 6 De G. M. & G. 223; 43 E. R. 1218 (with note, to which add London Printing, &c., Alliance v. Cox [1891], 3 Ch. 297; Griffith v. Tower Publishing Company [1897], 1 Ch. 21; Jude v. Reid, 1906, 22 T. L. R. 750).]

Agreement between Author and Publisher. Copyright. Injunction.

An agreement in writing between an author and certain publishers, that they should print, reprint and publish his book, upon condition that the author should prepare it all before a certain day, and should correct the press, and that the publishers should direct the mode of printing and pay all the expenses and take all risk of publishing, and out of the produce should first repay such expenses and then divide the profits between themselves and the author equally; and that, if all the copies should be sold and a new edition should be required, the author should prepare the same, and the publishers should print and publish it on the same conditions; and that, if all the copies of any edition should not be sold in five years from the time of publication, the publishers might sell the remaining copies by auction or otherwise, in order to close the account: Held, to be a personal contract by the author, and not a contract for an assignment of his copyright; and that, therefore, the benefit thereof could not be assigned by the publishers.

One of the publishers having retired from the partnership, another person was admitted, and subsequently the remaining partner, who had been a party to the contract, became bankrupt, and his assignees and the new partner, more than five years after publication of the work, sold and assigned the remaining copies of it and all benefit of the contract to the Plaintiffs. Afterwards the author, not knowing of this assignment, prepared a new edition for other persons trading in the name of the original firm, who were cognisant of it; and an application for an injunction by the purchasers of the interest of the original firm was refused, but without

costs.

Mr. Forsyth, having written a book intitled "A Treatise on the Law Relating to Composition with Creditors," on the 4th of December 1840 signed a memorandum of agreement of that date, made between himself of the one part and Robert Saunders and William Benning, law booksellers, of the other part, by which he, as the author of such book, agreed with the said Robert Saunders and William Benning that they