1791. Tuesday, June 28th. Issue is either a word of purchase or limita effectuate the devisor's intention. Therefore where A. devised his estate to his two equally divided between them, one moiety to one and her heirs, and the DOE, on several Demises of COOPER and wife, and J. J NEWSOM, being seised of certain lands in Cambridgeshire, in January, 1761, devised them to his wife during the tion as will best term of her natural life only; remainder "to his daughters "Eleanor Newsom and Susannah the wife of William Head, to "be equally divided between them, not as joint-tenants but as "tenants in common, viz. the one moiety, or half part thereof, daughters to be to his daughter Eleanor Newsom and her heirs for ever; and "the other moiety to his daughter Susannah, the wife of Wil"liam Head, during the term of her natural life; and after her "decease to the issue of her body lawfully begotten, and their "heirs for ever." The devisor died in 1762; and his wife in 1772. William and Susannah Head had three daughters, who are the lessors of the plaintiff, namely, Elizabeth (the wife of W. Cooper) born in November, 1755; Susannah, born in May, 1762; and Eleanor, born in May, 1768. In Trinity Term, 1771, William and Susannah Head, for the purpose of barring all estates tail, levied a fine sur conusance de droit come ceo, &c. of the moiety of the premises so devised to Susannah; the uses of which were declared to be to W. Head in fee; and under that fine the defendant claims. Susannah, the wife of W. Head, died in August, 1775; and W. Head, her husband, in November, other moiety to the other for life, and after her decease to the issue of her body and her heirs for ever, and she had one child living at the time of the devise, the se cond took only an estate for mainders to her 1777. Woodroffe, for the plaintiff, contended, that Susannah Head took an estate for life only, with vested remainders to her children as purchasers; for that "issue" might be construed to be either a word of limitation or of purchase, as would best effectuate the devisor's intention; 2 Lord Raym. 205. and 2 Wils. $23. Now here it was the intention of the devisor that Mrs. Head should only take for life, and that her children should take as purchasers; for at the time of the devise she had one child living. And in Wild's case (a) this distinction is laid down, that if land be devised to husband and wife, and to the men children of their bodies begotten, and they have no issue male at the time of the devise, they shall have an estate tail: but if a man devise lands to A. and to his children, or issue, and they then have issue of their bodies, there his express intent will take effect, (a) 6 Rep. 17. b. and and A. will take only an estate for life. So in Goodright d. Wilson, for the defendant, contended, first, that issue in a will, when used in the plural number, must be considered to be a word of limitation, unless coupled with other words to shew a \ different intention, and that to the present will there were no such words to satisfy the Court that it was used as a word of purchase. It is to be observed, that it is not a devise to Mrs. 1791. Dog dem. against COLLIS. Head 1791. DOE dem. Head for life only, though the devisor used those words in the (b) Westm. 2. Michaelmas Term, 1759. In Chancery. William John King, only son of Sarab King, niece of John Blount, plaintiff; Mattbesz Burcball, and Sarab his wife, Robert Horridge, and Mary his wife, defendants; Sarab and Mary being co-heiresses, and only children of John Harris, devisee in the last will of Jobm Blount. John Blount devised a messuage and farm in Hunton and Linton, in Kent, called Savage, unto his cousin John Harris, second son of Thomas Harris by the testator's sister Sarab, to hold The case of Backhouse v. Wells, 1 Eq. Cas. Abr. 184, is not an exception to the rule laid down by Lord Henley; for issue is there hold during his natural life, and from and immediately after the determination of that estate unto the issue male of the body of his cousin John Harris, lawfully to be begotten, and to his and their heirs, share and share alike, if more than one; and for want of such issue, unto the issue female of his cousin John Harris, and to her and their heirs, share and share alike, if more than one; and for want of such issue, unto his cousin William King, son of his niece Sarah King, who was daughter of Thomas Harris, by Sarab his wife, his heirs and assigns for ever. And taking notice that he had covenanted to settle 50%, a year on his wife, in part performance, he devised houses, &c. in Maidstone, of the yearly value of 431. to her, to hold for life, as part of her jointure; and from and immediately after her decease to his cousin John Harris for life, remainder to the issue male of the body of the said John Harris, and to his and their heirs; and for want of such issue, to his cousin William King in fee. In the will is this conditional proviso, that the several bequests of all the messuages in Linton, so devised to John Harris and his issue male and female, are or shall be on this special condition, that if he and his issue, or any or either of them, shall at any time hereafter alienate, mortgage, incumber, or otherwise commit any act, whereby to alter, change, charge, or defeat the said bequests and limitations, then every person so alienating, &c. shall pay or cause to be paid, and I do hereby charge all the said messuages with the payment of 2000l. for such person and his heirs, who ought next to take by virtue of the devises or bequests aforesaid. The testator died in 1738; and his wife Elizabeth in 1745. John Harris entered and enjoyed the premises till February 1758; but in Trinity Term 1751, suffered a recovery; and then by deeds of lease and release settled the lands to different purposes than are mentioned in J. Blount's will, viz. to himself for life, remainder to Sarah Burcball and Mary Horridge, his two daughters, their heirs and assigns for ever, as tenants in common. John Harris died in February 1758, without issue male, leaving only two daughters, Sarah Burchall and Mary Horridge. Lord Keeper Henley.—The first question made by the plaintiff's counsel was, Whether Harris took under this will an estate for life only, or an estate tail? And they founded their argument for its being an estate for life on the word issue being technically a word of purchase, and on the superadded words of limitation; and they compared this case to Loddington and Kime, amongst many other cases. The true answer is, there can be no technical words in a will, but they are to be construed according to the intention of the parties. adly, This case has no resemblance to Loddington and Kime: that was expressly upon two contingencies to A. for life, and if A. have issue, then to such issue in fee; and if he die without issue, then to B. in fee. There the Court construed the word issue to be nomen singulare; and were well warranted in so doing by the intent of the party. But here it is and must be plural: and if the issue were to take as purchasers, they must take as tenants in common. And put the case that J. Harris had ten sons, and the nine eldest died in his life-time leaving children, yet the tenth and only surviving son would in that case carry away the whole inheritance. 3dly, The testator intended the word issue to be a word of limitation in this case, and that W. King should take on failure of issue by J. Harris whenever that should happen, and has carried the whole fee in particular estates and remainders for want of such issue, i. e. for default of such issue. There is something of peculiar force in this expression, and the law supposes that the inheritance already attached in the first taker, but liable to be defeated by a subsequent event, his dying without issue; and by no rule of law can it admit of that narrow construction put on it by the plaintiff's counsel, viz. of being confined to issue living at J. Harris's death. They say, that if it be construed to be an estate tail in J. Harris, the superadding words of limitation to the word issue must be rejected as nugatory. I agree it is a sound rule in construction 1791. Doz dem. against COLLIS. 1791. DOE dem. there used in the singular number; as appears by a report of the same case in Fort. 133. and 10 Mod. 181. In Loddington v. Kime, too, issue was used in the singular number. There is no case in which issue has not given an estate tail, where it is used in the plural; and in Wright v. Pearson, Lord Henley said, "It is true there are many cases where superadditional words "have made the first words of limitation to be words of purchase; "but all those cases are founded on Archer's case; and the first "limitation has been to the heir, in the singular number, or the "word each or every hath been used, so as to be descriptive of "one individual person, who was to take." It is indeed added, as a note to that case of Wright v. Pearson, that the opinion there delivered was dissatisfactory to the bar; but that objection is clearly removed by Lord Henley's judgment in King v. Burchall. Lord Raymond (a), commenting on Archer's case, said, that it was determined on the ground that it was to the next heir male, in the singular number, and that otherwise it would have given an estate tail. Wyld's case is not applicable to the present; there the devise was "to R. Wyld and his wife, and, after their decease, to "their children," he having two children at that time. There the devisor may be supposed to have devised in favour of those construction of deeds and wills, that every word ought to stand if consistent with the manifest intention. Therefore in Backhouse and Wells the limitation being to A. for life only, and after his decease to his issue, if God should bless him with any; the Court first, on account of the negative word only; secondly, because the word issue was so collected as to be construed nomen singulare, held it a word of purchase. So in Shaw and Weigh; and the word heir in Maggott and Sewell; but where there is an evident necessity to make it plural, there the same necessity requires that the superadded words of limitation should be rejected; and there is no case or authority to shew that the word issue or heirs when plural has been construed a word of purchase; but, on the other hand, there are authorities where the word heir in the singular number has been so; and so may the word issue, where the context requires it to be taken as a word of purchase. 4thly, The testator by the proviso in his will has plainly declared his intention to give J. Harris an estate tail, “ If J. Harris or any of his issue should alienate," &c. How could J. Harris alienate or incumber, if he had no estate of inheritance? The case of Wright and Pearson determined by me, T. 31 G. 2. has been attended to by the counsel in this case; and in my opinion that was a much stronger case than the present. That was of a trust estate, and there were trustees interposed to preserve, &c.; and I was strongly pressed with the authority of Bagshaw and Spencer; yet after the best consideration I was able to give it, and after ransacking all the cases on the subject, I held it an estate tail: and as an appeal was brought to the House of Lords against that decree, but was afterwards deserted by the appellant, upon advising with his counsel, that determination, though a decree of my own, will have considerable weight with me; and I find, upon viewing my notes in that case, that the present has been argued upon the very same principles. I am therefore of opinion, for the reasons before mentioned, and from the authorities cited, that John Harris took an estate tail male. (a) 2 Str. 131. children; |