DoE d. t. HOPKINSON. [ *227 ] assuring the same hereditaments to the several uses thereinafter declared concerning the same respectively. The said Thomas Hopkinson died on 1st June, 1828, without other issue, leaving the said Elizabeth Bills, his only daughter, him surviving, but having devised all his estates to his second wife, whom he left surviving. On 11th November, 1841, a formal entry was made upon the premises by the lessors of the plaintiff for the purpose of avoiding the operation of the recovery. The question for the opinion of the Court was, whether the lessors of the plaintiff are entitled to recover. B. Andrews for the plaintiff (1) : The plaintiff is entitled to judgment unless the recovery barred the remainder devised to the child or children of Thomas Hopkinson: and this it could not do unless Thomas Hopkinson took an estate tail, or unless the remainder to his child or children was contingent. First, Thomas Hopkinson did not take an estate tail, but only an estate for life. The limitation is expressly for his natural life. The life estates of Thomas could not unite with the remainder to his children, for the rule in Shelley's case (2) does not apply, "child” being (except under particular *circumstances, not existing here) a word of purchase, not of inheritance: and, further, the children of each are to take in equal shares, by the words of the limitation. Even the word "issue" is a word of purchase, where words of limitation are engrafted upon it: Luddington v. Kime (3), Goodright, lessee of Docking, v. Dunham (4), Doe d. Comberbach v. Perryn (5), Right d. Shortridge v. Creber (6). Secondly, the remainder was not contingent. It is true that, till the birth of a child of Thomas, it was uncertain whether the remainder could take effect: but, as soon as a child was born, the remainder was vested in such child, liable however to open and let in the interest of any subsequently born child. That construction was given, in the cases already cited, Doe d. Comberbach v. Perryn (5) and Right d. Shortridge v. Creber (6), to devises much resembling the present, where the intent was collected, as it must be here, from the whole of the wills. The remarks of BAYLEY, J., in the case last mentioned, are applicable (1) The case was argued before Lord Denman, Ch. J., Williams, Coleridge and Wightman, JJ. The argument for the plaintiff was heard on 1st November; that for the defendant, and the reply, on this day. (2) 1 Co. Rep. 93 b, 104 a. (3) 1 Ld. Ray. 203. (+) 1 Doug. 264. (5) 3 T. R. 484. (6) 29 R. R. 444 (5 B. & C. 866). here. It must be contended, on the other side, that the remainder continued in suspense till the death of Thomas. But such a construction would defeat the whole intent of the devisor. If Thomas had several children, all of whom died in his lifetime. but left issue who survived him, then, according to the defendant's construction, the remainder would not take effect in favour of such issue: and, if this happened also in the case of William and John, the remainders, in all the property, would go to the sisters of the devisor, though it appears that this is to happen only if all the three grandsons "shall depart this life without lawful *issue, or if they or any of them shall leave lawful issue and such issue shall depart this life under the age of twenty-one years and without lawful issue." Some stress will perhaps be laid upon the words, in the remainder to Thomas's children, "as he shall happen to leave" "at the time of his decease." But the whole will must be looked at: and it is impossible to suppose that Thomas and his children were to take interests different in kind from those of William and John and their children: yet, in the event of Thomas dying without children, his moiety is to go to William and John for life, and, after their deaths, to their lawful issue generally, which clearly would give a remainder vested in the issue as soon as it was born. Words having as strong an aspect of contingency as these have been held to give vested estates, as in Webb v. Hearing (1), Bromfield v. Crowder (2), Doe d. Roake v. Nowell (3). Sir W. W. Follett, Solicitor-General, contrà: This was an estate tail if it was not a contingent remainder. The latter, however, is clearly the true construction. tingency is as to the persons who are to take. The con- is devised, not to the child or children of Thomas generally, but to such as he shall happen to leave at his decease. Therefore, if he had a child whom he did not leave living at his decease, that child would not take at all: yet, according to the construction suggested on the other side, such a child, before Thomas's death, would have had a vested interest, and might have disposed of it. As to the expression "without lawful issue," in the description of the event in which the land is to go to the sisters, it clearly means such lawful issue as has been before designated, namely, a child or (1) Cro. Jac. 415, 416 (3rd point). (2) 8 R. R. 805 (1 Bos. & P. N. R. 313). (3) 14 R. R. 445 (1 M. & S. 327). R.R. -VOL. LXIV. See a case on the same devise, in Dom. DoE d. BILLS v. HOPKINSON. [ *228 ] [ *229 ] DOE d. BILLS v. children living at the death of the tenant for life; if not, the limitation would be on an indefinite failure of issue. The cases HOPKINSON. cited are inapplicable. In Doe d. Comberbach v. Perryn (1) and Right d. Shortridge v. Creber (2) the remainders were limited to the children generally, and not confined, as here, to such as should be living at the death of the tenant for life. It will be found that, where words of contingency have been construed as giving vested estates, the apparent uncertainty has been as to the event; here the uncertainty is as to the party to take. That explains Bromfield v. Crowder (3) and Doe d. Roake v. Nowell (4): the argument in the former case turned on the meaning of the word "if." In Luddington v. Kime (5) and Doe d. Brown v. Holme (6) the remainders were held to be contingent. [230] (COLERIDGE, J.: Have not both those decisions been questioned ?) It has been doubted, and justly, whether there were not estates tail in those cases: but no objection has been made to the decision that the remainders, if remainders at all, were contingent and not vested. B. Andrews, in reply: In Doe d. Brown v. Holme (6) the uncertainty was whether heirs male or female should take. Cur. adv. vult. LORD DENMAN, Ch. J., in the vacation after this Term (December 5th), delivered the judgment of the COURT: The question in this case arose on a devise in the will of Sarah Skelton. After a devise of a life interest to her two grandsons, Thomas and William Hopkinson, in equal moieties, the will proceeds thus. "And, after their decease, I give the moiety of the said Thomas of and in such my real estates to such child or children as he shall happen to leave, lawful issue, at the time of his decease, and to their, her or his heirs and assigns for ever, to take in equal shares, if more than one." The testatrix died in October, 1816, leaving William and Thomas surviving. At her death Thomas had one daughter, who died unmarried in 1821. In February, 1818, Elizabeth, another daughter of Thomas, and the lessor of the plaintiff, was born. In Trinity Term, 1827, the two (1) 3 T. R. 484. (2) 5 B. & C. 866. (3) 8 R. R. 805 (1 Bos. & P. N. R. 313). (4) 14 R. R. 445 (1 M. & S. 327). (5) 1 Ld. Ray. 203. (6) 2 W. Bl. 777. DOE d. BILLS [231] brothers suffered a recovery, with double voucher, of the lands devised, in order to defeat all estates tail and contingent remainders therein, created by the will of Sarah Skelton. Thomas died in 1828, HOPKINSON. having disposed of all his estates; and a formal entry was made in November, 1841, to avoid the operation of the recovery. The question was agreed to be, whether the remainder to the children of Thomas was contingent until his death, or vested on the birth of one, with a liability to open and let in any after-born child. This latter construction was contended for by the lessors of the plaintiff; and, if it be the correct one, it is admitted the recovery has not barred her estate. If the will had stopped with the devise above stated, it would have been impossible to resist the clear effect of the words. Nothing then could have vested till at least the decease of Thomas. But it is a well known and most sound rule, that we must give effect to the intention of a testator, and seek to find it in each part of his will by reference to the whole. Now, looking to the whole will, the intention of the testatrix is quite clear. Thomas and William, and their lawful issue and the heirs of them, were the first objects of her bounty in their respective moieties. If either Thomas or William should die without issue, John (another grandson) was to be substituted in all respects as to the moiety of him so dying. And, if both Thomas and William should die, neither of them leaving issue, the whole was to go to John for a similar estate. If all three should die without lawful issue, or, they leaving lawful issue, such issue should die under twenty-one and without lawful issue, then the estate was to go over to the two sisters of the testatrix in fee. This being the general intention, and it being admitted on both sides that the words are such as make the estates of the first takers estates for life only, we cannot but see that the construction of the defendant's counsel goes to defeat it in almost every link in the chain. According to this, Thomas might have issue who should die in his lifetime leaving issue, and yet his moiety may go over to John, and such issue would be barred. What is true of Thomas alone, will be so of Thomas and William and John,--the remoter object in the mind of the testatrix will come in with his issue to the whole, to the exclusion of the descendants of the two who are nearer. Nay, it may happen that the descendants of the sisters, who were evidently intended not to take unless the whole lineal stock is exhausted, may come in while the grandchildren of Thomas and William are in being, and this though the estates to the sisters are expressly given in case it shall happen "that all DOE d. three of them my grandsons *shall depart this life without lawful issue, or if they or any of them shall leave lawful issue and such HOPKINSON. issue shall depart this life under the age of twenty-one years and [ *232 ] without lawful issue." If we understand the words in the sense given them by the plaintiff's counsel, these inconsistencies will be avoided. The estate of each child will vest at its birth, and open to let in after-born children. Many cases were cited in the argument, but none precisely in point: it is, therefore, unnecessary to examine them here in detail. We consider this will on its own particular limitations, and by the application of familiar principles. Our judgment, therefore, is for the lessor of the plaintiff. Judgment for the plaintiff (1). 1843. Nov. 14. [265] GEORGE CLIPSHAM v. STEPHEN VERTUE (5 Q. B. 265—273; S. C. 13 L. J. Q. B. 2 ; 8 Jur. 32.) By charter-party between plaintiff, owner of a ship, and defendants, it was agreed that the ship should load from defendants' agent at Nantes a full cargo, and, being loaded, forthwith proceed to London, and deliver the cargo on being paid freight upon unloading and delivery, twenty-five running days being allowed for loading and discharging at Nantes and London, with penalty for demurrage beyond. A declaration in assumpsit set out the charter-party, and averred that the vessel arrived at Nantes, whereof defendants' agent there had notice; that the ship was ready to load the cargo, and defendants' agent was requested, during the running days, to load it, and plaintiff was ready to detain the ship on demurrage over those days: but defendants refused to load. Plea that, after the making the charter-party and before proceeding to Nantes, the vessel proceeded to Newcastle, contrary to the intent of the charter-party, and, by reason thereof, arrived at Nantes a long and unreasonable time after the time at which she would have arrived at Nantes had she sailed direct according to the intent of the charter-party. Held bad, on demurrer, for not showing that the delay frustrated the object of the voyage. ASSUMPSIT. The declaration alleged that heretofore, to wit on May 28th, 1842, by a charter-party then made and entered into by and between plaintiff (therein described as master of the ship called the Emblem, of &c., then bound to Nantes) and defendants, bearing date, to wit &c., it was agreed between plaintiff and defendants that the said ship, being tight, staunch, &c., should load from the agents of the defendants at Nantes a full cargo of wheat and flour, &c., not exceeding what she could reasonably stow &c., and, being so (1) See Festing v. Allen, 12 M. & W. 279. |