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1822.

Doe dem.
BLIGH

COLMAN,

that could be got for the same. The first part of the power was merely intended to operate on lands then in lease; and the lease of 1750 was the only subsisting lease. at the time the will was made. The only question then is, whether the restrictions in the latter part of the power apply to both sets of leases? If they are applicable to the first class, as well as the second, the lease of 1815 is not comformable to that part of the power which requires a clause of re-entry on nonpayment of the rent or services thereby reserved; and by the lease of 1750, the sum of forty shillings was payable in lieu of a heriot. In order to render the whole of the clause in the will relating to the power intelligible, it is necessary, to insert additional words to those used by the testator; and it must be read thus, viz." that the devisees should, by indenture, demise such parts of the premises as had been usually demised and were then in lease, as the same bad been usually granted; and that they should demise, and lease the residue for any term not exceeding, twenty: one years in possession, on a reserved rent, so as that no SUCH demise or lease should be made dispunishable of waste, nor without a condition of re-entry on nonpayment of the rent or services thereby, reserved.” The word such throws back the restrictions on both sets of leases, and applies to the lands usually letten, as well as those to be let for years, and at a rack-rent. The restriction as to the dispunishment of waste fortifies this construction, and applies of necessity lo both classes of leases; and although it is not usual to introduce such a clausc in leases not exceeding twenty-one years, still it is generally done in leases determinable on lives. On these grounds, the lease of 1815 is not conformable to the power; and a verdict must consequently be entered for the plaintiff.

Mr. Serjeant Lens, contrâ. If the word such, in the latter part of the clause in the power, can be construed to

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1822.

Doe dem.

BLIGH

COLMAN,

extend to both classes of the testator's property, the power has not been well executed by the demise of 1815; but that word must be confined to the latter class only. The testator knew that he had two distinct species of estates, and the word such cannot, in any sense, beso applied as to refer to such lands as had been usually demised, and were then in lease. He made his will in 1783, and the lease of 1815 was a mere transcript or copy of the original lease of 1750, with the exception of changing the names of the parties; and as to the lands then in lease for lives, he wished that any future lease which might be made thereof, should correspond with the terms of the former lease, with which he was perfectly satisfied; but as to the lands which were to be let for any term not exceeding twenty-one years, he specified the restrictions under which sach leases were to be granted. The word such, therefore, can only refer to lands which might be demised for any term not exceeding twenty-one years in possession, and not to those in reversion. Although it has been said that the words demise and lease should be introduced to supply the defect in the will, still, grammatically speaking, if any additional words were required, it should be the substantives rather than the verbs ; in which case the word such could only apply to those lands which were not formerly in lease, and which might be demised at the best rent that could be got for them. With respect to such parts of the premises as had been usually demised, the testator wished that the terms under which they were originally let, should be observed in future, viz. that “they should be held under the like rents, services, and conditions ;” but as to the residue of the

premises, which were not in lease at the time of the will, he specified on what terms they were to be let, as well as the restrictive covenants each lease should contain; and more particularly so, as it was provided that each lessee should execute a counterpart of his lease. It is there

1822.

Doe den.

BLIGH

COLMAN.

fore altogether inconsistent to throw back the terms to be contained in such leases to the former class, so as to blend the whole of the property together; and more particularly so, as the testator has expressed his intention as to both sets of leases. With respect to the provision, that “no lease of the residue of the premises should be made dispunishable of waste:” such a clause is altogether unusual, and was not introduced in the original lease of 1750 ; and if it were inserted in the first class of leases, it would not only introduce new terms, but be contrary to the provisions of such original lease. The lease in 1815 was made in conformity with the power, and works no injury to the remainder-man. Besides, it is conformable to the lease of 1750, the terms of which have been strictly followed. The whole of the clause in the will must be read reddendo singula singulis ; and the form to be observed, as to the leases for the residue of the lands, applies only to those in possession, and to be let for a term not exceeding twenty-one years.

Mr. Serjeant Pell, in reply. The provision, that each lessee should execute a counterpart of his lease, has reference to both classes of the testator's property,

and carries the argument for the lessor of the plaintiff much further than it originally stood; and it follows as a natural consequence, that the clause giving the power, refers equally to both sets of leases. If the testator had intended to confine the restrictions at the latter part

of the clause to leases in possession and for twenty-one years, he would have introduced the words last mentioned, after that of such. Indeed these words must of necessity be added, to make the construction contended for by the defendant available or intelligible. The testator might as reasonably require a condition of re-entry on nonpayment of the rent, or services to be reserved, in the leases by which the lands bad been let previously to the making

1822.

his will, as those in possession. At all events, the word such has reference to both classes of the premises demised; and the reasonableness of such a construction must prevail.

Doe dem.
BLIGH

COLMAN,

Lord Chief Justice DALLAS.-It has been agreed at the bar that this is a mere question of construction, not to be governed by any previous decision, as no case is applicable to it, or even similar in point of principle; and consequently that it resolves itself into a question of construction, alone. Speaking for myself, I feel no difficulty whatever, as I am clearly of opinion that the word such, as contained in the clause giving the power to the devisees, must be confined to the latter class of leases only, and cannot be thrown back, so as to refer to the former. It is necessary, in the first place, to look at the particular expressions in the will. The testator there drew a distinction between two different sorts of property, viz. that which had been usually let for any term of years determinable on lives, and which was to be demised thereafter, in the manner, and under the like rents, services, and conditions, as the same had been usually granted ;-and the residue, which had not been before demised, he directed to be let in a different way, and under certain restrictions. On reference to the whole of the clause in the will containing the power, he declared that it should be lawful for the devisees, when they should be in the actual possession of the premises, by indenture to demise the same in manner following. He then chalked out the mode in which certain parts of the premises should be let in future, viz. such parts as had been usually granted or demised, and were then in lease. He, therefore, not only referred to the lands which had been usually demised, but expressly described them as being then in lease. If be had intended that any alterations should be made in the future leases of such lands, he would have stated the

1822.

Doe dem.
BLIGH

COLMAN,

nature of such alterations, and shewn in what respect the futare leases should differ from the former; instead of which, he directed that such part of the lands as had been usually demised, should be let for the like terms, and in like manner, as the same had been usually let : and as to the residue of the premises which were to be let by future leases, he referred to the terms such leases were to contain, which were not toexeèed twenty-one years, and at the best rents which could be got for the same. How, then, can it be said that the word such must be thrown back, so as to govern the former class of leases, when there is a subsequent class to which it immediately and directly applies? In point of grammatical construction, it ought not to be so thrown back, nor ought it from the context of the whole of the clause giving the power to the devisees to demise; in the beginning of which, the testator referred to those parts of the premises as had been usually demised; the future leases of which were to contain similar terms and conditions as those leases which were then in existence, and with the terms of which he was acquainted and satisfied. He then contradistinguished the form of the leases under which the rest and residue of the premises were to be let, from the lands then in lease, viz. for any term not exceeding twenty-one years; and he then required that such leases should be subject to certain restrictions which were not contained in the former leases. The terms as to the mode of letting the property were altogether distinct and different; and he did not intend to refer to the old mode of letting in the second set of leases, by which the premises were to be let at the most improved rent, so as such leases should be made subject to certain conditions. As, therefore, the testator has clearly distinguished and divided his property into two distinct classes, and prescribed the terms on which each was to be let; whether we are to decide as to the grammatical construction of the context, or on sense and reason, I am of

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