1853. FOSTER V. HAYES. grandson and their heirs; and, in default of such issue, to the children of his brothers and sister: and a similar devise of another estate to the other grandson. If the effect of this was a contingent fee to the unborn children of the grandson, then, on the birth and death of an infant, the estate passed away from the children of the brothers and sister to a person not the object of the testator's bounty. He certainly cannot have intended that and his real intention would be fulfilled if the grandson took an estate in tail. And this intention. is made more clear by the proviso which gives the estate of each grandson, in case he shall die without issue, to the other. It has long been settled that, in wills executed before stat. 7 W. 4 & 1 Vict. c. 26., the words "die without issue" primâ facie mean die after an indefinite failure of issue. The context may indeed shew in some cases that the phrase is used in a different sense. Thus in Doe dem. Comberbach v. Perryn (a) the devise was to the testator's niece for life, remainder to all and every her children by her husband James," and their heirs for ever, to be equally divided between and among such children (if more than one) share and share alike; but if only one child, then to such only child and his or her heirs for ever; and for default of such issue," to his niece's husband James. It was held in that case that "default of such issue" did not mean after a failure of issue of the niece, but in case there are no such children. The person, however, in whose favour the devise over was there made, could not be an heir of his own children; so that there was no incongruity in a devise to him in default of their heirs; and this fact forms the distinction between that case and (a) 3 T. R. 484. Ives v. Legge (a), which is expressly recognised in Doe dem. Comberbach v. Perryn (b). The decision in Ives v. Legge (a) was that, wherever after a devise to children and their heirs there comes a devise, introduced by the words in default of issue or similar words, to a person who would himself be one of the heirs of the children, so that it would be impossible that the devise to him should ever take effect if it was only to be in default of their heirs general, the words shall be construed to mean heirs of the body. There are many cases where words which would primâ facie give an estate in fee are cut down in this manner by a subsequent limitation, so as only to give an estate tail; Doe dem. Bean v. Halley (c), Brice v. Smith (d), Lewis dem. Ormond v. Waters (e), Doe dem. Jearrad v. Bannister (g). In the present case, if the will had stopped at the end of the devise to the children of the testator's brothers, after the devise to his grandson's children and their heirs, it would be an argument that the words " in default of such issue" gave an estate tail to the grandsons; but the proviso shews the intention clearly. Rudall, contrà. The grandsons took an estate for life, remainder to their children in fee; and, if there never were such children, then there is a devise over. The authorities are very numerous to shew that, after a devise to children and their heirs, the words in "default of such issue" mean if there are no such children; (a) 3 T. R. 488, note (a). (e) 6 East, 336. (b) 3 T. R. 484. (d) Willes, 1. (g) 7 M. & W. 292. 1853. FOSTER V. HAYES. 1853. FOSTER V. HAYES. Rex v. The Marquis of Stafford (a) is a leading case. Then there are many cases which shew that the words in the proviso "die without issue," when following a devise to children and their heirs, mean "die without having had issue;" such are Ginger dem. White v. White (b), Malcolm v. Taylor (c). In Goodright dem. Docking v. Dunham (d) the devise over was to a relative; yet the argument now used was never thought of. There is another class of cases which establish that, where there is a devise to A. for life, remainder to his unborn sons in tail male, remainder to his daughters in fee, and, in default of issue of A., a devise over, the words "default of issue" shall not be construed to give an estate tail in general, but shall mean, if there are no such issue. These cases were all reviewed and confirmed in Baker v. Tucker (e). All these cases shew that both in the devise and in the proviso the words in default of issue must mean "in case my grandson never has such issue." Cowling, in reply. The construction contended for by the defendants makes all the estates in remainder contingent. Cur. adv. vult. Lord CAMPBELL C. J. now delivered the judgment of the Court. We are of opinion that, under the will of Wm. Harding, Elizabeth Harding Hayes, on her birth, took a vested remainder in fee in the lands in question, (a) 7 East, 521. (b) Willes, 348. (e) 3 H. L. Ca. 106. 86 subject to the life estate of her father Matthew Hayes. There seems to us to be no doubt whatever that this would be the effect of the limitations in favour of Matthew and his children, irrespective of the proviso, which is mainly relied upon by the counsel for the plaintiff. No words could have been employed better adapted for that purpose than those found in the will, down to the limitation in favour of the sons and daughters of the testator's brothers and sister, "for default of such issue:" and "for default of such issue," according to various authorities which were cited, must mean for default of Matthew having had no child in whom the remainder in fee should vest." The doctrine on which this construction rests is confirmed by the first case which Mr. Cowling cited to bring it into doubt, Doe dem. Comberbach v. Perryn (a), and is quite consistent with his second, an antecedent case, Ives v. Legge (b); for there the words to be construed are essentially different. We must therefore come to the effect of the proviso: and we think that Mr. Cowling made out the rule of construction for which he contended, that, although there be a limitation in a will in which taken by itself the word "heirs" must be construed to mean heirs general, and to give a fee simple, if there be a subsequent limitation in the will which can have no operation if this effect is given to the word "heirs," it shall mean heirs of the body and cut down the prior gift to an estate tail. But here the limitations which follow the proviso may take effect although the contingency should be considered to be (a) 3 T. R. 484. VOL. II. D (b) 3 T. R. 488. note (a). E. & B. 1853. FOSTER V. HAYES. 1853. FOSTER V. HAYES. that the grandsons shall die without having had children. On this supposition, the other objects of the testator's bounty would have a somewhat less chance of being benefitted than if the remainder had been cut down to an estate tail; but they would have been entitled to take in default of the grandsons never having had any children: and, as the estate tail might have been barred by a recovery, the practical difference is not very important. The proviso uses the expression "in case either of my said grandsons shall happen to die without issue of their bodies lawfully begotten:" but we think this must mean such issue as is before specified, and, introducing no devise inconsistent with the prior gift to the children of the grandsons and their heirs, leaves the remainder in fee simple to vest in the child of the grandson on its birth. This being the plain intention of the testator, and consistent with all the authorities cited, we give Judgment for the defendants. |