chaser by the contract, the vendor then becomes a trustee for him, and cannot be permitted to deal with the estate so as to inconvenience him. In a case, therefore, where there is a clear undisputed contract, the Court would in my opinion interfere. *But in the present case it is open to serious doubt what *71 the result of the suit will be, and that being so, the question whether the vendor should be allowed to transfer the estate to a third party becomes a question of comparative convenience or inconvenience, and I think that in the present case there is no doubt on which side the balance of convenience inclines. On the one hand, if the legal estate is transferred, it may become necessary for the plaintiff to amend his bill or to file a supplemental bill, the only evil of which is that extra costs will be occasioned. It is a mere question of costs, which can be set right at the hearing if the plaintiff succeeds. On the other hand, if this injunction is maintained and the defendants are thus prevented from dealing with the estate, the consequence may be, and it is said at the bar will be, that the liquidators will be prevented from entering into contracts and arrangements from which great benefit would arise to the creditors of the company. There is no question as to the balance of convenience or inconvenience when consequences like these are weighed against a mere question of extra costs. I am of opinion, therefore, that the injunction ought to be dissolved. *PHILLIPS v. JAMES. 1865. May 3. July 1. Before the LORDS JUSTICES. *72 By marriage articles a father covenanted to convey an estate to trustees for the benefit of his son T. J. during his life, with remainder "for the use and benefit of the issue of the said T. J. by the said M. M., his intended wife, their heirs and assigns, for ever." The husband and wife both died, leaving a son and two daughters: Held, by the L. J. TURNER, affirming the decision of V. C. KINDERSLEY, that the settlement ought to be framed so as to give an estate tail to the son, with remainder to the daughters as tenants in common in tail, with cross remainders between them, dissentiente the L. J. KNIGHT BRUCE, who was of opinion that the three children were entitled to the inheritance as tenants in common or joint tenants. 1 1 Sugden V. & P. (8th Am. ed.) 175, 176, and notes. See Perry Trusts, § 361. THIS was an appeal from a decision of Vice-Chancellor KINDERSLEY on the construction of certain marriage articles. The articles were entered into on the 14th of March, 1825, between James James, the father of Thomas James the intended husband, and John Morris, the father of Martha Morris the intended wife. The provisions of the articles were as follows: "First. James James, in consideration of the said intended marriage, and upon the conditions hereinafter mentioned, hath covenanted and agreed with the said John Morris to make and execute a proper conveyance of such part of his real estate called Cwm Crymych, situate in the parish of Llanfirnach, in the county of Pembroke, as is now in his own occupation, containing sixty acres or thereabouts, unto trustees to be then appointed for the use and benefit of his said son Thomas James during his natural life; and provided the said Martha Morris his intended wife shall survive him, for the use and benefit of the said Martha Morris during the time she shall remain his widow; and from and after the decease of the said Thomas James or the intermarriage of his said intended wife Martha Morris for the use and benefit of *73 the issue of the said Thomas James by the said Martha Morris his intended wife, their heirs and assigns for ever." * This was made conditional on Thomas James paying to his father the sum of 150l. in consideration of the estate so to be made over to him, and an annuity of 21. to Margaret James, daughter of James James, during her life. And James James on the above conditions agreed to perform his part of the agreement under the penalty of 3001., and John Morris on his part agreed with James James to pay to Thomas James on the solemnization of the marriage the sum of 1007. as a marriage portion with his daughter Martha Morris. It was also agreed that nothing in the articles. should debar Martha Morris from dower, if she should survive her intended husband. It was also agreed that in case of the death of Martha Morris without leaving any issue alive behind her, Thomas James should repay John Morris the whole of such property as he might have with his intended wife Martha Morris. James James was at the date of the agreement seised in fee of Cwm Crymych, and died in 1828 without having made any settlement in pursuance of the articles. Thomas James, however, had paid the 1507., and had been let into possession and continued in possession till his death, which took place on the 3d of February, 1864. His wife died in his lifetime. They had three children, all of whom survived their father; namely, two daughters, who with their husbands were the plaintiffs, and one son, the defendant William James. All three had children living at the death of Thomas James. William James was the heir-at-law of James James and Thomas James, and the legal estate was vested in him by descent. The plaintiffs filed their bill to establish their right to two-thirds of the estate and to have a partition. Vice-Chancellor KINDERSLEY on the 18th of March, *74 1865, made a decree declaring that according to the true construction of the agreement of the 14th of March, 1825, the defendant Wm. James was entitled to an estate tail in Cwm Crymych, with remainder to his two sisters as tenants in common in tail, with cross remainders between them in tail, and directing a settlement to be made according to that declaration. The plaintiffs appealed, praying that it might be declared that the sisters and the defendant Wm. James were entitled to the estate in equal third shares as tenants in common in fee. Mr. Glasse and Mr. Freeman, for the plaintiffs in support of the appeal. We contend that the three children take as tenants in common in fee. Taggart v. Taggart (a) lays down the principle that under marriage articles, though without words of severance, the issue take as tenants in common. This is clearly an executory agreement. The Vice-Chancellor decided on the strength of a case which was not cited in argument: Alpass v. Watkins, (b) Morris v. Ward; (c) but there the trust was not executory; the language of the instrument was very different, and there was a limitation over. His Honor also relied on Hart v. Middlehurst, (d) which does not touch the case, for there the word "issue" only occurred; here "issue," with words of limitation superadded. Moreover, there was in the articles in that case an express provision for younger children, which left no doubt as to the intention, and the observations of Lord HARDWICKE as to the form of the settlement were mere *dicta, the only *75 real point for decision being, whether the only child took (a) 1 Sch. & Lef. 84, 88. (b) 8 T. R. 576. (c) 8 T. R. 518. more than an estate for life. Dod v. Dod (a) was also relied on; but in that case there were no superadded words of limitation, and there was a limitation over in default of issue, which went against giving estates in fee. The word "issue" primâ facie means the same as "heirs of the body," but it will readily be construed otherwise, if there is a context indicating a different intention. Cavanagh v. Morland. (b) It was argued below that the use of the word "issue," in the latter part of the articles, explained its meaning in the former part, but this is unsound, for the word may have different meanings in different parts of the same will. Carter v. Bentall. (c) Here the Court will construe it as meaning children, it being against the spirit of marriage articles to make children take concurrently with their parents. The Vice-Chancellor has combined Alpass v. Watkins, relating to a trust not executory, with Hart v. Middlehurst, which related to an executory trust, and thus got over the words "heirs and assigns," and has given the settlement an effect very different from the presumably intended effect of making a provision for all the children. The cases on a limitation to " issue," with superadded words, are collected and commented on in Prior on Issue. (d) Doe v. Collis (e) there cited supports our view; "issue" was there construed to mean "children," and they took in fee. In p. 195, Mr. Prior discusses the question, which has not been decided on marriage articles, but on wills it has been decided that a limitation to issue and their heirs and assigns makes them take as purchasers in fee. Crozier v. Crozier, (g) Montgomery v. Montgom*76 ery, (h) * which are approved by Vice-Chancellor WooD in Kavanagh v. Morland. (b) Mr. Watson, for some of the grandchildren of Thomas James. "Issue" primâ facie includes all descendants, there is nothing here to restrict it, and they take in fee. Montgomery v. Montgomery does not decide that issue there meant children, but the issue were there held to take as purchasers, the words being sufficient to give them a fee as purchasers. Woodhouse v. Herrick. (i) Doe v. Collis is the only case cited against us, and it is no authority (a) 1 Ambl. 274. (c) 2 Beav. 551. (e) 4 T. R. 299. (i) 1 Kay & J. 352. on the point, because it does not appear that there were any issue except children. So far as the context throws any light on the question, it favours the more extended construction of "issue," the word being evidently used in the wider sense at the end of the will. [Baldwin v. Rogers (a) was also referred to.] Mr. Pontifex, for other of the grandchildren. Roche v. Roche (b) shows that "issue" ought to receive the extended meaning. - Mr. Baily and Mr. Williams, for the son. According to the terms of the articles the parent would take an estate tail, but the Court modifies marriage articles so as to give the parent an estate for life, and to make the estate under the stipulation in favour of issue go, as nearly as may be, in the same way as a limitation to parent in tail would carry it if not barred. This is the principle on which the Vice-Chancellor has proceeded. *The *77 cases relied on by the other side are all cases in which there were words of division, importing a tenancy in common, which is inconsistent with an estate tail. Words of division occurred in Roche v. Roche, Crozier v. Crozier, and Montgomery v. Montgomery. Parker v. Clarke (c) shows that the mere addition of words of limitation to a gift to issue has no effect. The word "issue" is not construed" children," unless there be a strong context leading to it. Roddy v. Fitzgerald, (d) Taggart v. Taggart, (e) Hart v. Middlehurst, (g) Frank v. Stovin. (h) [Mills v. Seward, (i) Roe v. Grew, (k) were also referred to.] Mr. Glasse, in reply.- Words of division and superadded words of limitation will make issue take as purchasers under a trust not executory. Words of limitation alone may be insufficient for that purpose where the trust is not executory, but they are sufficient in (a) 3 De G., M. & G. 649. (b) 3 Jo. & Lat. 561. (c) 6 De G., M. & G. 104, 109. (e) 1 Sch. & Lef. 84. (g) 3 Atk. 371. |