Mr. Knight and Mr. Girdlestone, senior, appeared for other Parties.

The VICE-CHANCELLOR:

It is clear that the Rent-charge was intended to be in lieu only of any Claim which the Wife might have upon her Husband's Lands; and that the Testator made the Bequest of the Furniture, &c. with reference to giving the Lease, and that he had in contemplation an enjoyment of the House with the Furniture, &c.; and, consequently, the Bequest has totally failed by the change of Circumstances.

Declare that the Widow is not barred of her Distributive Share of the undisposed of residue of the Testator's Personal Estate, and that she is not entitled to any part of the Furniture, &c.

1833

COLLETON

V.

GARTH.

TANNER v. RADFORD.

1833: 19th February.

Tenant in Tail.

Recovery.

JOHN RADFORD, being seised in Fee of the Advowson of the Rectory of Lapford, in the County of Devon, on his Marriage in 1763, settled it on himself Resulting Use. for life, with Remainder to the use of all and every, or If a Tenant in such one or more of the Sons of the Marriage, for such Tail suffers a Estate, not exceeding an Estate in Tail Male, and in Recovery, and such Shares, &c. as Radford and his intended Wife which are void, should, during their joint lives, appoint; and, in default he does not take thereof, and in case Radford should survive his intended Tail, but an Wife, to the use of all and every, or such one or more Estate in Fee. of the Sons of the Marriage, for such Estate not exceed

ing an Estate in Tail Male, and in such Shares and

declares Uses

back an Estate

1833.

TANNER

0.

RADFORD.

Proportions, and with or without power of Revocation, as Radford should, after his Wife's death, by Deed, or by his Will, to be executed and attested as therein mentioned, appoint; and, in default thereof, to the use of the first and other Sons of the Marriage successively in Tail Male, with Remainder to the use of the Daughters of the Marriage, as Tenants in common in Tail, with Cross Remainders in Tail, with Remainder to the use of Radford, his Heirs and Assigns for ever.

There was Issue of the Marriage two Sons, John, who died an Infant in the lifetime of his Father and Mother, and William, who was the Testator in the Cause, and two Daughters. Mrs. Radford died in the year 1770, leaving her Husband surviving.

By Indentures of Lease and Release, dated the 7th and 8th of November 1790, and made between John Radford, and William Radford therein described as Son and Heir Apparent of John Radford, of the first part, Nath. Batten of the second part, and Arundel Radford, Clerk, of the third part: It was witnessed that, for barring and docking all Estates Tail and Remainders thereupon expectant of and in the Advowson and other Hereditaments thereinafter mentioned, and for assuring the same to the Uses after-mentioned, John Radford and Wm. Radford conveyed and appointed unto and to the use of Batten, in Fee, (together with other Hereditaments) the Advowson of Lapford, then in possession of John Radford as the then Incumbent thereof, to the intent that he might become Tenant of the Freehold, in order to the suffering a common Recovery, the Uses whereof were thereby declared to be, so far as concerned the Advowson, upon

Trust that Arundel Radford and his Heirs should, at all times thereafter, when and so often as the Rectory of Lapford should become vacant by the Death, Resignation, or otherwise, of the then present or any future Incumbent, nominate and present Wm. Radford, if he should be then in Priest's Orders, to the Rectory aforesaid, or, if he should be then dead, then upon Trust to present the first and other Sons, or Issue Male of the Body of Wm. Radford, as they and every of them respectively should be in seniority of age and priority of birth, and when respectively legally and duly qualified to be nominated and presented thereto, or, in case such eldest or other Son or Issue Male of Wm. Radford should, by reason of nonage or otherwise, be incapacitated of being presented to the Rectory, then Arundel Radford, or his Heirs, should, in the meantime and before such incapacity should be removed, present such other of the Sons or Issue Male of John Radford that should be then living and duly qualified to fill any such Vacancy so happening, as Wm. Radford, by any Deed or Instrument in Writing, or by his last Will and Testament in Writing, under his Hand and Seal, duly executed in the presence of and attested by three or more credible Witnesses, should direct and appoint, and, for want of such appointment, then upon Trust that Arundel Radford and his Heirs should present to the Rectory such other of the Sons or Issue Male of John Radford, as the eldest Son of Wm. Radford who should live to survive him, should appoint, during all such time and no longer than such eldest or other Son or Issue Male of Wm. Radford should, by nonage or otherwise, be incapable of being presented thereto, Arundel Radford or his Heirs taking a Bond in a sufficient Penalty, or other Legal Security for such

1833.

TANNER

v.

RADFORD.

1833.

TANNER

v.

RADFORD.

Son or Issue Male of John Radford as should be presented thereto, to resign the same to a Son or Issue Male of Wm. Radford, as soon as such Son or Issue Male of Wm. Radford should be capable of holding the same Rectory, and so, from time to time, as long as any Issue Male descending from Wm. Radford should be living and capable of holding the Rectory, and, for want of Issue Male, descendants of Wm. Radford, or there being such, and all of them should die and become totally extinct, in Trust to convey and assure the Advowson unto and to the Use of the right Heirs and Assigns of John Radford for ever, and for no other use, intent, or purpose whatsoever.

The Recovery was duly suffered in Michaelmas Term, in the 31st year of Geo. 3.

John Radford, by his Will dated the 20th of December 1792, after reciting that he, or Arundel Radford in Trust for him and his Heirs, was seised of the Reversion of the Advowson of Lapford, expectant on the death of his Son William without leaving Issue Male of his body, devised, directed and appointed that Arundel Radford and his Heirs, should stand seised of the Reversion, on such contingency happening, to the use of certain Trustees therein named, for the Term of 400 years, and, after the expiration thereof, and, in the meantime, subject thereto, to the use of the Testator's eldest Son, James Radford, by his second Wife, for life, with Remainders to his first and other Sons in Tail Male, with Remainders to the Testator's other Sons by his then Wife successively for Life, with Remainders to their Sons in Tail Male: and he declared the Trust of

the Term to be for raising 1,000l. for his younger Sons by his then Wife.

William Radford survived his Father John Radford, and, by his Will dated the 24th of April 1821, directed that, if his Son John Arundel Radford should obtain Holy Orders and become a Priest, then he should take the Rectory of Lapford to him and his Heirs for ever; but, if he should not obtain Holy Orders, then the Testator gave the Rectory to his Son Charles and his Heirs.

John Arundel Radford took Orders and was instituted to the Rectory.

The Bill was filed by Creditors of William Radford, against his Widow and Children: and, by the Decree made on the hearing of the Cause, the Master was ordered to inquire and state what Real Estates the Testator, William Radford, died seised and possessed of.

The Master reported that the Defendant, John A. Radford, had submitted before him, that the Testator, William Radford, was Tenant for his own life of the Advowson of Lapford, and that such Estate for Life determined, therefore, with the Testator's life; and that the Advowson, although specifically devised by the Testator's Will, did not pass by such devise, but that, immediately upon the decease of the Testator, the Defendant John A. Radford became seised of it as Tenant in Tail: but the Master found that the Testator, Wm. Radford, died seised in Fee of the Advowson, discharged of the Land Tax which had been redeemed by him.

1833.

TANNER

0.

RADFORD.