1833.

FAZAKERLEY

v.

FORD.

tlement, as the estate tail created by the will of W. Gillibrand was destroyed.

A clause which devests an estate is to be construed most strictly. A person who makes a will containing a devesting clause of this description, must be taken to contemplate the descent of the whole of the estate upon the devolution of which the preceding vested estate is to go over. It would be unsafe to speculate as to the intentions of the testator as to how much or how little ought to devolve before the preceding estate goes over to another person. The estate of W. Gillibrand can no longer come in its original form to any of the persons who were the objects of Mr. Fazakerley's bounty. The estate had not only undergone a change in its title, but had also suffered a diminution in value. It is subject now to a jointure of 500l. a year, and is charged with 10,000l. for younger children's portions. The power of sale and exchange contained in the will of W. Gillibrand was exercised in a variety of instances, previously to the death of Col. Fazakerley, to such an extent that there is now a large sum of money, the produce of the sale of the estate, lent upon mortgage, and property of the value of 5000l. was exchanged. The Court has no right to presume that Col. Fazakerley intended that this estate, so altered in title and diminished in value from what it was when the will of W. Gillibrand was made, should not unite with the Fazakerley estate.

A case like this, which is admitted to be destitute of all direct authorities, and where the Court is called upon, for the first time, to lay down a general rule, is one of all others in which there is good reason for stepping out of the mere technical rules of decided cases, and referring to general principles. One of the first general principles which ought to regulate a question of this nature is, that such a rule should be laid down as will be certain in its application, will tend to render titles secure, and will not leave them to fluctuate according to the various opinions, views, sentiments and feelings of judges. One great object of civil society

is the preservation and distribution of property. It has been said by some philosophers that the law of property and the law of marriage are the foundations of civil society; but those who refer to first principles say, and say justly, that the law of marriage itself is but a branch of the law of property. That the necessity of ascertaining what parents ought to have the obligation of maintaining their children, is but the result of that distribution and arrangement of property which is the real object of all civilized society. It follows from this that it is of the utmost importance that those rules of distribution should be as certain as possible. Every deviation from certainty is an injury; every approximation to it is an advantage. It can be of no importance to a state whether John or Thomas shall have this property, but it is of very great importance that it should not be uncertain which shall have it. Before the statute allowing estates to pass by devise, the rules for the descent and the distribution of real estate approximated to great certainty. Since the statute of wills, the natural disposition of judges to give effect to the intentions of testators, has created a multiplicity of rules and a variety of decisions, which present any thing but certainty. This is the origin of executory devises, contingent remainders, shifting uses, conditional limitations, and many other heads of the law (a). These are supposed by some to render the law obscure; but all admit that they render the devolution of an estate under a will doubtful and uncertain. If the same rigorous rules had been adopted for the interpretation of wills as are applied for the construction of deeds, all this confusion would have been avoided (b). Nothing can be more inconvenient than the

(a) It may be doubted whether it would have been possible to give that disposing power over property which is now enjoyed, without the introduction of these or of similar heads.

(b) The only real difference of construction seems to be, that by a deed, except where it operates under the statute of uses, an estate of inheritance cannot pass without the word "heirs."

1833.

FAZAKERLEY

บ.

FORD.

1833.

FAZAKERLEY

V.

FORD.

devesting a vested estate. Every man who holds an estate under a will containing a clause of this description, holds it at the constant peril that himself and his family may be ruined. It must be admitted that the vesting and devesting an estate may be effected to gratify the wish of a testator. The Courts have come to this determination with difficulty, and have been very unwilling to devest an estate even upon the clearest evidence of the testator's intention, where express words are wanting. Driver v. Frank (a) illustrates the proposition that the intention of a testator is very often differently collected by different minds, and that the moment you make that the only rule for your decision, you set titles afloat and render the law of property uncertain. That case was argued twice in this Court and twice in the Exchequer Chamber (b). There a lady devised an estate to Bacon Frank for life; remainder to the second, third, fourth, and all and every other the sons of Bacon Frank (except the first or eldest son), successively in tail male, with remainders over. The majority of the judges held, that the remainder to the second and other sons of Bacon Frank (who had no issue at the time of the death of the testatrix) was contingent till Bacon Frank had two sons living, and not until his death, and that as soon as he had two sons alive, it became vested, and not liable to be devested by any subsequent changes in the family of Bacon Frank. The argument of the majority of the judges in that case was, that although the law did permit these shifting estates, yet that in general the inconvenience attendant upon them was so great, that to give effect to these clauses, the intention of the testator ought to be expressed in the strongest and clearest manner, by words in the will. The principle to be extracted from that case is this, that the safest rule to be laid down in doubtful cases is that which will be attended with certainty. So here, the best course is to lay down a rule which will be certain in its application. If the Court

(a) 3 M. & S. 25.

(b) 6 Price, 41; 2 B. Moore, 519.

determines that in a case like this the vested estate shall be forfeited, although the estate, upon the devolution of which the vested estate is to go over, has not descended in the order of descent marked out by the will devising the estate, great inconvenience will follow. Suppose the tenant in tail who suffered the recovery of the Gillibrand estate had mortgaged it for the full value except 500l., would the Court say that because a fragment of the estate had devolved upon the person in possession of the Fazakerley estate that the latter estate should go over? It will be said on the other side, suppose the Gillibrand estate had descended despoiled of one acre only, would not the Fazakerley estate have gone over in that case? It is submitted that it would not. It is better to adopt this rule, that if the estate do not descend in statu quo to the devisee, the vested estate shall not go over. The safest course is to adopt the letter of the will, and to say that the testator, Col. Fazakerley, intended that whenever the Gillibrand estates should descend upon the same person who was in possession of the Fazakerley estates, they should be disunited, but that the testator meant a descent under the will of W. Gillibrand. There is another reason why the devesting clause does not apply to the plaintiff. The Fazakerley estate is to pass over upon its coming to a person who was at that time entitled to the rents and profits of the Gillibrand estate. It appears by the case that the plaintiff was not of age when his father died. At that time therefore he was not entitled to the rents and profits, because they were to be paid into the hands of the trustees, who were to allow him a maintenance. The rents and profits were to be laid out in the purchase of other estates, from which he would derive no benefit if he died under age. In this way the plaintiff was clearly not entitled to the rents and profits of the Gillibrand estate. It will be said that the testator used these words to denote the person who, according to the general provisions of the will, would be entitled, were it not for the particular clause alluded to.

1833.

FAZAKERLEY

V.

Ford.

1833.

FAZAKERLEY

v.

FORD.

That is a matter of uncertainty. This clause is to be construed most strictly. By the provisions of the will, the plaintiff would not be entitled, during his minority, to the rents and profits, but only to a maintenance. The condition does not apply to him, because the condition only refers to the event of his being in possession of the rents and profits of the Fazakerley estate, when the other estate devolved upon him. Suppose that T. H. Gillibrand (the son) had died before Col. Fazakerley, leaving his eldest son living, the eldest son would then become entitled to the rents and profits of the Gillibrand estate. Suppose that the eldest son had then died, the second son would then take the Gillibrand estate. The testator, Col. Fazakerley, dies a day after this. The second son in this case would have retained both the estates. This shews that the condition is to be strictly construed; that the party must be in possession of the rents and profits of the Fazakerley estate at the time when the Gillibrand estate descends upon him. It will be said on the other side that the words, the manor, &c. devised by the will of William Gillibrand, deceased, to Thomas Gillibrand, for an estate in tail male, are only a description of the estate intended to be devised, and that the testator refers to the settlement, but not to the will of Gillibrand. It is admitted that if Col. Fazakerley had the settlement in his mind, with the powers of sale and exchange and the various provisions contained in it, that he must have intended the Fazakerley estate to go over, although a portion of the Gillibrand estate only descended. The argument on the other side is founded only ou conjecture. It is not likely that because a man had signed a marriage settlement, he should keep it in his mind. Suppose that under the settlement the whole of the Gillibrand estate had been sold, and the person in possession of the Fazakerley estate had purchased it, would the latter estate in that case go over ? Shall it be said that if by any accident, in whatever form or way, whether by purchase, by limitation, by devise, or by gift, the Gillibrand estate, or any part of it, should come