[353] during their natural lives;" and "from and after their several deceases," the testator devised the premises "unto and equally between all their issue, male and female; and for want of such issue" he devised the premises unto and equally between all the children of his cousin, Edward Woodhouse, and the children of his cousin Ann, the wife of James Thomas, and their heirs, male and female, with the same restrictions as therein before limited; and for want of such issue the premises were devised over. The testator died in 1809.

Frederick and Mary had fifteen children, all of whom were living at the date of the will. Two died subsequently, but in the lifetime of the testator, under twentyone, and unmarried. Frederick died before 1840, having taken the name of James Woodhouse pursuant to the directions in the will. His widow died subsequently to 1840.

In 1840 one of the children, who had survived the testator, having previously died an infant and unmarried, indentures of lease and release, afterwards duly enrolled in Chancery, were executed by the then surviving children and their mother, for disentailing the property and vesting it in the Plaintiffs, two of the surviving sons who had taken the name and arms as required by the will, upon trust for sale.

Two other sons, parties to the indentures above mentioned, died during their mother's life, without having taken the name of James Woodhouse or the arms of Woodhouse.

The Plaintiffs, in execution of the trusts for sale, contracted to sell the premises to the Defendants; but doubts being entertained as to the construction of the will, and as to the Plaintiffs' title, a special case was stated for the opinion of [354] the Court, upon the following questions:-Whether the direction in the will contained for all the sons of Frederick and Mary, his wife, to take the name and arms of Woodhouse was a condition precedent to the vesting in them of the estates limited to them by the will in the hereditaments thereby devised, or was a condition subsequent to the vesting of such estates, and whether, under the devise to them in the will of the said hereditaments, the children of Frederick and Mary, his wife, or any and which of them, took as tenants in common in tail with cross-remainders between them in tail, or took for any other and what estates.

Mr. James, Q.C., and Mr. W. J. Tayler, for the Plaintiffs. The children of Frederick and Mary, surviving the testator, took as tenants in common in tail, the word "issue" being equivalent to "heirs of the body," so as to include all the descendants to all time; and the circumstance that the issue are to take as tenants in common is not adverse to this construction: Kavanagh v. Morland (Kay, 16), Montgomery v. Montgomery (3 J. & L. 47), Doe d. Cannon v. Rucastle (8 C. B. 876), and Doe d. Gallini v. Gallini (5 B. & A. 621; S. C. on appeal, 3 Ad. & E. 341). The decision in Greenwood v. Rothwell (6 Scott N. R. 670), though seemingly exceptional, depended upon the superadded words of limitation "and the heirs of such issue," and not upon the circumstance of the preceding limitation being to the issue as tenants in common. The children, therefore, took as tenants in common in tail, with crossremainders between them in tail: Doe d. Southouse v. Jenkins (3 Moo. & P. 59), Atherton v. Pye (4 Durn. & E. 713), Green v. Stephens (17 Ves. 75).

[355] The clause requiring the children to assume the name and arms of the testator does not prescribe any period for the performance of that requisition; nor is there any express devise over on non-performance. The case of Egerton v. Brownlow (4 H. L. Cas. 1) shews that the Court is always unwilling to construe such clauses as conditions precedent; and the effect of construing the present as a condition of that nature would be to make the remainder, after the decease of Frederick and Mary, contingent upon the condition being fulfilled at the time when the particular estate was determined. This, therefore, if a condition at all, and not a mere injunction intended to have a moral force only, was a condition subsequent, Gulliver v. Ashby (4 Burr. 1930), capable of being satisfied by a change of name within any reasonable time, Davies v. Lowndes (2 Scott, 71), and it was effectually barred by the disentailing deed.

The vendors, therefore, have made a good title to the estate.

Mr. Rolt, Q.C., and Mr. Engleheart, for the Defendants. The expression, "for want of such issue" in the gift over, distinguishes the present case from all that have

been cited in favour of the construction which would vest an estate tail in the children of Frederick and Mary, and from all other cases which at first sight might seem favourable to that construction, except that of King v. Burchell (Amb. 379); a case distinguishable from the present, and which has since been disapproved of and overruled. (3 J. & L. 58, 59.) It is true that "issue" is, prima facie, equivalent to "heirs of the body;" but Kavanagh v. Morland, and all the other cases cited in support of that proposition, recognise that it is a term more flexible than "heirs of the body," and that [356] slight circumstances are sufficient to restrict its meaning to children, or to a particular class of issue. Here the circumstance that the issue are to take as tenants in common, if not of itself sufficient to restrict the meaning of the word "issue to children, as in Slater v. Dangerfield (15 M. & W. 263), or to a limited class, is at least sufficient to throw upon the Plaintiffs the onus of shewing that the term is not so restricted. This they cannot shew; for the general intention in favour of all issue to all time is, in a case like the present, an intention to be gathered from the terms of the limitation over: Doe v. Cooper (1 East, 229). And here the limitation over is not "for want of issue" indefinitely, but "for want of such issue "—that is, for want of such issue as have been previously mentioned. It is arguing in a circle to say that the preceding limitation to "issue" is capable of being enlarged or explained by the subsequent limitation over "for want of such issue;" and if an estate tail cannot be found in the preceding limitation to the issue as tenants in common, which, in the absence of a limitation over "in default of issue" indefinitely, it cannot, such estate tail will be sought for in vain in the limitation over in default of "such issue : Hay v. Lord Coventry (3 T. R. 83, 86), Doe d. Comberbach v. Perryn (3 Durn. & E. 484), King v. Marquis of Stafford (7 East, 521).

But even if the Court should be of opinion that the children of Frederick and Mary did take estates tail, the words being "children already or hereafter to be born," the class to take were the fifteen living at the date of the will, not the thirteen who survived the testator: Burchett v. Durdant (2 Vent. 311, 313; and see 1 Eq. Cas. Abr. 214, pl. 11, and note; also T. Raym. 330), Crossly v. Clare (Amb. 397; S. C. under the title Crosley v. Clare, 3 Swanst. 319, n.). [THE VICE-CHANCELLOR. There the words were 66 now living." Here the [357] testator does not say now living," but "already born." Are the words he has used stronger than "procreatis vel procreandis," "born or to be born?"] That they are is clear from the cases collected by Mr. Jarman in his "Treatise on Wills" (1 Jarm. on Wills, 277, 278), and from Cole v. Scott (1 Mac. & G. 518), which last case shews that, even under the new law, words descriptive of time, as "now," "already" and the like, refer to the time of the execution of the will, and not to that of the death of the testator. The shares, therefore, which the testator attempted to bequeath to the two children, who died between the execution of his will and his death, either lapsed altogether, or, if such shares survived to their brothers and sisters for life, they lapsed as to the remainders in tail; and, not having passed by the residuary devise, descended to the testator's heir at law. (See 1 Jarm. on Wills, 588.)

In regard to the name and arms clause, the estate for life in the testator's widow would afford sufficient time for the parties to obtain the requisite letters patent; and there is therefore no presumption against construing that clause as a condition precedent. [THE VICE-CHANCELLOR. But the remainders vest immediately on the death of the testator, notwithstanding the life-estate in the widow.] The question is not when the estate vests, but "when its usufructuary enjoyment commences." (1 Jarm. on Wills, 804.) Here the form of the gift is in favour of the construction that this is a condition precedent; and that presumption is reduced to certainty by the terms of the trust to preserve contingent remainders, the effect of which, if the condition were construed as a condition subsequent, would be in case of forfeiture to restore the party forfeiting to the enjoyment of the estate-an intention which the Court will not impute to a testator.

[358] THE VICE-CHANCELLOR Sir W. PAGE WOOD. In reference to the name and arms clause I need not hear a reply, nor on the words "already or hereafter to be born." The name and arms clause cannot be considered a condition precedent. The question might be open, possibly, to more doubt on the first clause "he, the said Frederick, taking and adding the name of James Woodhouse to his own name."

But from the very circumstance of the testator having used different words in the limitation to the children of Frederick, I am obliged to conclude that he intended something different. Therefore, if a condition at all, it is a condition subsequent, and was barred by the disentailing deed.

As to the words "already or hereafter to be born," it is impossible to distinguish them from the words "born or to be born," which the Defendant's counsel admit (and the case has been extremely well argued) that the Court has always reduced to silence or treated as surplusage.

Upon the words "in default of such issue" I must hear a reply, as I am not sure that there is any case to be found in point. I never like to determine upon the effect of this word "issue" without consideration.

The

Mr. James, Q.C., in reply. The estate tail is found in the limitation to the issue, and the tenancy in common is no obstacle to that construction. It is a gift to the children for life in joint-tenancy, followed by a gift to their issue for all time. effect of the words "unto and equally between " annexed to the latter gift is simply to make several inheritances in tail, as between the different classes of issue. Judgment reserved.

[359] Feb. 20. THE VICE-CHANCELLOR Sir W. PAGE WOOD. The questions in this case have arisen between vendors and a purchaser as to the effect of the will of the testator, James Woodhouse, under whom the vendors derive their title. Three objections, upon two of which I did not require a reply, have been raised to the title of the vendors, depending on the construction of the limitations to Frederick Secretan and his issue. [His Honour read the limitations in the will, and continued :]

One of the objections, upon which I did not require a reply, related to the name and arms clause, which, it was said, was a condition precedent, and therefore, as it was not complied with, the estate never vested in the children of Frederick and Mary, from whom the vendors derive their title. I think it, however, impossible to construe the clause as a precedent condition. The effect of such a construction would be to make the remainders, after the decease of Frederick and Mary, contingent upon the condition being fulfilled at the time when the particular estate was determined; notwithstanding it is a condition of such a character as could not reasonably be expected to be performed, though it possibly might be performed during the lives of Frederick and Mary. There is nothing in the will to lead me to such a construction, unless it be the limitation to trustees to preserve contingent remainders, and the direction to such trustees, in case of forfeiture, to permit the parties who, but for such forfeiture, would be entitled for the time being to receive the rents; upon which it was argued that, if the condition be subsequent, it is possible it might be defeated by the party entitled refusing to take the name and arms, and having, notwithstanding his forfeiture, the benefit of the property by means of the trust to preserve contingent remainders. That may be one of the consequences of construing this to be a condition subsequent; but what I have to consider is whether there is [360] anything in the will which makes the condition a condition precedent, for it is not to be so construed unless it was clearly so intended. Some cases were cited which shew that the Court is not disposed to construe a condition as a condition precedent unless absolutely compelled to do so; and I find nothing in this will to compel me so to construe the present condition. The words of the gift would rather imply that the condition is to be fulfilled after the property is taken, and they do not by any means go to the extent of imposing on the parties anything like a condition precedent.

The other objection upon which I did not hear a reply was that, there being at the date of the will fifteen children of Frederick and Mary, two of whom afterwards died in the lifetime of the testator, the words "already born indicate an intention on the part of the testator to devise the property in question to all those children who were in existence at the date of the will; consequently, the two who died between the date of the will and the testator's death were entitled to shares, which shares lapsed, and therefore the children who were living at the testator's death were not the class to take. But I think that no greater force can be given to the words "already or hereafter to be born," than to the words "born or hereafter to be born (without the word "already "), or to other like expressions, which from the time of Lord Coke to this day have been held to mean children living at the testator's death,

to the exclusion of such as may have previously died. To produce the effect contended for, words more distinct, such as "now living," or the like, would be necessary. The true construction of these words is simply "born or hereafter to be born," which includes only children living at the death of the testator.

Then comes the main question concerning the issue of [361] the children of Frederick and Mary; and the whole difficulty on this point would be avoided if I could clearly construe the last clause-I mean the limitation "from and after the several deceases" of the children, "unto and equally between all their issue male and female "—reddendo singula singulis, so as to create a tenancy in common as between the issue of each child, and not as between all the issue of all the children. The gift would then be to each child for life, with remainder to his issue, and, for want of such issue, over; which would clearly be an estate tail in the first taker. But here the difficulty is that the children take as joint-tenants "for their joint lives and the life of the survivor;" and then, "after their several deceases," there is this gift "unto and equally between all their issue male and female," which would be all the issue of all the children; and to construe the gift as a gift, after the decease of each child, of his share to his issue, would be in derogation of the estate in joint-tenancy previously given to the several children. It is first given to the children in joint-tenancy, with benefit of survivorship, and then, after their several deaths, to all their issue male and female; and I think it would be too dangerous to hold that to be a gift to their several issue, regarding each child as a stirps to whom a life-estate in the property was given, so as to make it a gift to each child for life, and after his decease to all his issue male and female as tenants in common, and, for want of such issue, over.

There is no case exactly in point on the effect of such a limitation as the present; but I think the authorities warrant me in holding this to be an estate tail in the first takers, viz., the children of Frederick and Mary.

I believe that I did not overstate the law in Kavanagh v. Morland (Kay, 24) when I said that, in wills of real estate, [362] the word "issue," unless there is something to shew a contrary intention, must be taken to mean the same as "heirs of the body," that is, the whole of the descendants that shall issue that shall proceed from a particular person to the remotest time. I stated that without reference to Montgomery v. Montgomery (3 J. & L. 47), but upon the authority of other cases which were then cited to me; I find that Lord St. Leonards, in Montgomery v. Montgomery, took entirely the same view of the meaning of the word "issue" in a will. He says (3 J. & L. 55, 56), "It remains to consider the construction of wills where the words are 'issue of the body,' instead of 'heirs of the body.' In King v. Melling (1 Vent. 225) Hale held that the word 'issue' is nomen collectivum, and takes in the whole generation ex ri termini, which he proved from the Statute de Donis. Issue,' Wilmot, C.J., said, in Dodson v. Grew (Wilmot's Notes, 276), 'in its natural, ordinary signification, means all; it may be restrained.' 'It is,' he said, in 2 Wills. 323, 'a plural word, and takes in all the sons.' (Of course the words used in this will, "issue male and female,” would include both sons and daughters); "and Gould, J., observed that the term 'issue' comprehends the whole generation, as well as the word 'heirs.' And Willes, C.J. (Willes, 353), observed, upon another occasion, that the word 'issue' is nomen collectivum, and takes in the whole generation ex vi termini; and in common parlance it is taken to mean heirs of the body, which is the best rule to judge of the construction of the words of the will." After citing which authorities Lord St. Leonards concludes that the first meaning of the word "issue," unless there is something to restrain it, is the same as "heirs of the body," though the word "issue" is more flexible than those words, and may more easily be restricted in its signification.

[363] Then is there anything in this will adverse to that construction? Of course, one obvious objection is the difficulty occasioned by the limitation being "unto and equally between the issue, giving them the property as tenants in common. That difficulty, however, has long since been overcome, when words are superadded such as "in default of issue," or the like, implying a general failure of issue. In such a case, although the circumstance of the gift being to the parties as tenants in common is quite inconsistent with the creation of a descendible estate, yet, the general intention being to give the estate to the issue, and there being a gift over in default of issue, the general intention of a will so framed is most clearly that the estate shall not

go over from the first takers until there is a total failure of issue; and therefore, notwithstanding the difficulty occasioned by the words creating a tenancy in common, the gift is construed an estate tail. That was decided in Doe d. Blandford v. Applin (4 T. R. 82), and it has been followed in a variety of cases in which the word "issue" has been used. Further than that, where the words were "heirs of the body," the same doctrine has been held; and whether the limitation be to one for life, with remainder to the heirs of his body, and then, in default of such issue, over, as in Jesson v. Wright (2 Bligh, 1), or, as in the case of Doe d. Atkinson v. Featherstone (1 B. & Ad. 944), to A. for life, with remainder to the heirs of his body as tenants in common, even without any gift over, the words creating a tenancy in common are rejected, and the meaning attributed to the words "heirs of the body" being such as would include the whole issue, it is construed as vesting an estate tail in the first taker.

It is true that, the word "issue" being more flexible than the words "heirs of the body," a question would arise whether, in a limitation equally between the issue, as tenants in common, and where there is no gift over in default of [364] issue generally, the words creating a tenancy in common can be rejected, as may clearly be done when the words are "heirs of the body," and an estate tail be vested in the first taker. That was done, certainly, by Lord Northington in King v. Burchell (Ambl. 379: S. C. 4 T. R. 296), which was a strong case, because the words "and to their heirs" were superadded to the gift to issue, and those words might have created a new stirps, and given the issue an estate in fee as purchasers. That case was disapproved of by Lord St. Leonards in Montgomery v. Montgomery (3 J. & L. 58, 59), and it seems to be inconsistent with some later cases, especially that of Greenwood v. Rothwell (6 Scott N. R. 670), where, from the superadded words of limitation, it was decided that the first party took as tenant for life, and that the issue took as purchasers-although the certificate does not go on to mention the latter circumstance, but is confined to the tenancy for life: there is, however, no doubt that the issue were there held to take as tenants in common in fee. This point was also before Lord Langdale in Tate v. Clarke (1 Beav. 100), where the limitation was to one for life, with remainder in these terms: "Unto and amongst all and every my brothers and sisters who shall be living" at the death of the tenant for life, "and to their issue male and female after the respective deceases of my said brothers and sisters for ever" (which might have been sufficient to create a fee), "to be equally divided between and amongst them;" and Lord Langdale, possibly not adverting to the limitation in fee, held that the words "issue male and female" were to be construed as words of limitation, and not of purchase; and that the children of a sister who died in the lifetime of the tenant for life took no interest under the devise; although in that case there was no gift over in default of such issue, or in default of issue-nothing but the limitations I have mentioned. Lord St. Leonards thinks it difficult to distinguish that case from Greenwood V. [365] Rothwell (6 Scott N. R. 670) and dissents from it (see 3 J. & L. 57), but only upon the ground that, under the supperadded words of limitation in Tate v. Clarke, the issue were capable of taking in fee; so that the motive for construing "issue" as a word of limitation had failed, that motive being to fulfil the clear intention of the testator that all the issue should take. If you once arrive at any words sufficient to give the issue a fee-simple as purchasers, then, as every man contains all his issue in himself, each person who takes a fee-simple is as capable, through the medium of the fee-simple, of transmitting to his posterity, unless he chooses to alter by will or otherwise the channel of devolution, the property which the testator intended to be so transmitted, as he would have been capable of transmitting the property had it descended to him by virtue of a tenancy in tail in the first taker. The case of Montgomery v. Montgomery was entirely determined upon that principle, viz., that the superadded words of limitation were large enough to confer a fee-simple on the issue as purchasers. The observations there made by Lord St. Leonards upon the case of King v. Burchell are founded upon the superadded words of limitation, giving a feesimple to the issue as purchasers. That was what he had in view when speaking (3 J. & L. 57) of "superadded words of limitation" following a devise to A. for life, with remainder to his issue, "in a manner inconsistent with a descent from A.," and which, he says, will give to the word issue the operation of a word of purchase. The part of his judgment which bears most strongly on this point is the following (Id. 56) :