three sisters,) depart this life before M. Hart, leaving issue male of his body lawfully begotten, then and in such case the testator devised one moiety of his said estate to the use of the first and every other son and sons of N. Hart severally and successively in tail male; and, in default of such issue, to the use of M. Hart for the term of his natural life; and, after his decease, to the use of his first and other sons severally and successively in tail male; and, in default of such issue, to the use of testator's right heirs and in case M. Hart and N. Hart should both die without leaving any issue male, or such issue male should die without leaving any issue male, then, and in such case, the testator devised his said estate to the use of such person or persons as should, at the death of the survivor of them, the said M. Hart and N. Hart be his, the testator's right heir or heirs. The testator, Moses Hart, died without having revoked or altered his said will. The heirs at law of the testator, living at the time of his death, were his said two daughters, Judith Levy and Rachael Adolphus, his grandson Henry Isaac Franks, and his two granddaughters Philah Franks and Priscilla Franks; H. I. Franks being the only son of Frances Franks, a deceased daughter of the testator, who married Isaac Franks; and Philah Franks and Priscilla Franks being the only children of Philah Franks, the wife of Aaron Franks, another daughter of the testator, who also died in his lifetime. On the death of the testator Moses Hart, Judith Levy and Rachael Adolphus, by virtue of the will, entered into possession of the said messuages, lands, hereditaments, and premises at Topsfield, and received the rents thereof in equal moieties until the death of the said Rachael Adolphus in the year 1773, without issue, whereupon Judith Levy took possession of Rachael 1838. FRANKS V. PRICE. 1838. FRANKS V. PRICE. Adolphus's said moiety of the estate, and received the rents of the whole of the estate from that time to the time of her death. The devisee Moses Hart, and the testator's said three sisters, survived the testator, and all died in the lifetime of Judith Levy: and the devisee, M. Hart, died without having had any issue. The said Judith Levy died in the month of January 1803; and thereupon Napthali Hart entered into possession of the said estate; and in Hilary term 1821, suffered a common recovery thereof to the use of Stratford Price, his heirs and assigns; and the estate was held, and the rents thereof were taken accordingly, until about the month of March 1830, when a receiver was appointed of the same by the Court of Chancery, who is now in possession of the estate. The said Henry Isaac Franks died in the lifetime of Napthali Hart without having been married, leaving Jacob Henry Franks, the only son of Philah Franks, the wife of A. Franks, his heir at law. Philah Franks, sister of the said Priscilla Franks, married Moses Franks, and also died in the lifetime of Napthali Hart, leaving Dame Isabella Bell Cooper, the widow of Sir William Henry Cooper, Bart., her only child and heir at law. On the 28th of December 1828, Nepthali Hart died without having had any issue; and the heirs at law of the testator, living at the time of the death of Napthali Hart, were the said Jacob Henry Franks, Priscilla Franks, and Dame Isabella Bell Cooper. The questions for the opinion of the Court, were, First, whether Napthali Hart took any, and what estate in the messuages, lands, and hereditaments at Topsfield, under the testator's will. Secondly, whether Jacob Henry Franks, Priscilla Franks, and Dame Isabella Bell Cooper, the heirs at law of the testator living at the time of the death of Napthali Hart, took any, and what estate, in the messuages, lands, and hereditaments, at Topsfield, under the said will. Thirdly, whether Judith Levy, Rachael Adolphus, Henry Isaac Franks, Philah Franks, and Priscilla Franks, the heirs at law of the testator living at the time of his death, took any and what estate in the said messuages, lands, and hereditaments, at Topsfield. Stephen Serjt. for the Plaintiff, contended first, That Napthali Hart took only a moiety of the property; and an estate for life only in that moiety. The devise to Moses and Napthali was subject to the contingency that neither of them should take unless they survived all the preceding devisees: but as Moses died before Judith, the contingency on which he was to take a moiety did not arise, and Moses took nothing: for according to Powell, "devises limited in clear and express terms of contingency do not take effect, unless the events upon which they are made dependent, happen." (a) Denn d. Radcliffe v. Bagshaw (b), Holmes v. Cradock (c), Driver d. Frank v. Frank. (d) Napthali was to take in remainder after Moses; and if Moses took nothing in the moiety devised to him, Napthali could take nothing; for where an estate for life is made to depend on the contingency of the object of it being alive at the period when the preceding estates determine, limitations consecutive on that estate have been held to be contingent on the same event, for want of something in the will to authorise a distinction between them; Davis v. Norton. (e) (a) 2 Powell on Devises, 224. 3d edit. (c) 3 Ves. 317. 1838. FRANKS v. PRICE. 1838. FRANKS v. PRICE. But he argued 2dly (and principally) that if the whole accrued to him, still Napthali took only an estate for life. If he should die before Moses, leaving issue male, his moiety was to go to his first and other sons in tail. In the converse case, of Napthali dying after Moses leaving issue male, the moiety of Moses was in like manmer to go to the first and other sons of Napthali, in tail in remainder upon their father, who would have been, as to that moiety, tenant for life only. And the same plan of limitation, though not actually expressed, must have been intended by the testator with respect to Napthali's original moiety also (in the same event of his dying after Moses and leaving issue); for on the opposite supposition, viz., that Napthali took an estate tail in his original moiety, it would be in his power to defeat his issue by a recovery as to that moiety; while as to the moiety accruing from their uncle Moses, they would take an estate which Napthali could not defeat, viz., an estate tail in remainder as purchasers. Such a distinction was unmeaning, and could not have been intended by the testator. Though his design was imperfectly expressed, it is clear upon the whole that he intended that in every case that might arise, as well as in those actually provided for, each of the two brothers should have an estate for life in his moiety, remainder to his issue in tail, with cross-remainders over for life and in tail; and if the intention sufficiently appeared, the Court would imply the remainders not actually expressed. Daintry v. Daintry (a), Harman v. Dickinson. (b) But supposing any difficulty to exist as to inserting remainders by implication, it would be removed in the present case by the terms of the devise over, in case M. and N. should die without leaving any issue male, or such issue male should die without leaving any issue male. (b) 1 Bro. C. C. 91. 2 Madd. 449. (a) 6 T. R. 307. The words issue male, as here first used, meant sons, or the objects in whose favour the preceding remainders had been limited, and the whole clause taken together amounted to a declaration that the sons were, in every case that might arise, to take, that is, to take estates tail in remainder as purchasers, as in certain cases it had been before expressly declared that they should. In support of this construction of the devise over, Stephen particularly relied on Doe d. Barnard v. Reason (a), and Bamfield v. Popham (b): he cited also Lethieullier v. Tracy (c), Doe d. King v. Frost (d), Doe d. Barnfield v. Wetton (e), Pells v. Brown (g) Goodright v. Dunham (h), Ginger v. White (i), Blackborn v. Edgley (k), Morse v. Marquis of Ormonde (1), and the six rules laid down in 2 Powell on Devises, 551. (3d edit.). Wilde for the Defendants, argued that the last clause in the will, "In case M. Hart and N. Hart should both die without leaving any issue male, or such issue male should die without leaving any issue male," meant an indefinite failure of issue: that Napthali, therefore, under the general rule applied to limitations upon an indefinite failure of issue, took an estate tail in the premises; and that the testator's general intention could not be effected by any other disposition. If the common rule of law would effect his intention, there was no reason for interpolating a remainder: and the possibility of the tenant in tail's suffering a recovery, would not affect the construction of the instrument. Earl of Scarborough v. Doe d. Savile. (m) The general rule, as laid down in The (a) Cited 3 Wils. 244. (h) Doug, 264. (i) Willes, 348. (1) 5 Madd. 99. (m) 3 Adol. & Ell. 897. 1837. FRANKS V. PRICE |