No. 25. - Broadhurst v. Morris, 2 Barn. & Adol. 9-11.

be governed by Doe v. Burnsall, Merest v. James, and Crump v. Norwood, 7 Taunt. 362. In the last case the devise was to

*three nephews during their lives, and after their decease to [* 10] the heirs of their bodies as tenants in common. It was not disputed that the nephews took an estate for life; and Gibbs, Ch. J., cited and relied on Doe v. Burnsall. The Court should lean against the construction contended for by the plaintiff : no man of sense would make such a devise, since the tenant in tail could bar it at any time by a recovery. In Davie v. Stevens, there were limitations over on an indefinite failure of issue, and the case turned on that point. In Seale v. Barter, the testator's intention was clearly to create an estate tail in the first taker, the parent, and the limitations over assisted such intention. In Wyld v. Lewis, the gift to the sons was only by implication, and the word "sons" was used collectively, and imported all issue male. Here there is an express gift to children, as children in the first degree with the words "for ever," under which they may take the fee. Hodges v. Middleton, was expressly overruled in a case in Chancery, which has not been reported on this point, viz. Charles Monck and Others v. The Commissioners of Woods and Forests.

Cowling, in reply. - Doe v. Perryn, King v. Burchall, and Wyld v. Lewis, show that the estate would not vest on the birth of a child, but only in such as should be living at the death of W. Broadhurst. The circumstance, that the children would be joint tenants, is in favour of the plaintiff's construction; * for [*11] it is usual to give estates to purchasers as tenants in common, and not as joint tenants. (Per Lord HENLEY in King v. Burchall.) The cases of Doe v. Burnsall, Merest v. James, and Crump v. Norwood, are consistent with the rule before stated as deduced from the cases; in all of them, the words which caused the children to take as purchasers were part of the same sentence by which the estate was given them. The cases in which children," "issue," &c., have taken contingent remainders after estates of freehold given to their parents, are of two kinds: 1st, where a remainder is limited by express words, as in Loddington v. Kime, 1 Salk. 224; 2ndly, where the testator has affixed some quality to the estate given to the issue, which is inconsistent with their taking by descent, as in Doe v. Burnsall, where they were to take as tenants in common. In this case, however, the words relied on by

No. 25. Broadhurst v. Morris, 2 Barn. & Adol. 11, 12.

Notes.

the defendant as paring down the estate tail are part, not of the sentence by which the estate tail is limited to them, but of a subsequent one; they come by way of proviso, not of exception. Besides, in Doe v. Burnsall it was unnecessary to decide whether M. Owstwick took an estate tail, or one for life; for in either case the recovery suffered had barred the contingent remainders over. As to Crump v. Norwood, it may be doubted whether that case be not reversed by Jesson v. Wright. Cur. adv. vult.

[*12]

* We

The following certificate was afterwards sent:"The case has been argued before us by counsel. have considered it, and are of opinion that the plaintiff W. Broadhurst took under the will of Ralph Bridoak an estate tail in the shares of hereditaments and premises situate in Westhoughtonwithin-Brinsop therein mentioned.

"TENTERDEN,

"J. PARKE,
"W. E. TAUNTON."

ENGLISH NOTES.

Wild's Case will be found at length as No. 5 of "Estate," 10 R. C. 773.

Clifford v. Koe (H. L. 1880), 5 App. Cas. 447, 43 L. T. 322, 28 W. R. 633 (referred to in the notes 10 R. C. 776), shows that the rule of construction in, Wild's Case is not now to be departed from, at all events without context importing a contrary intention. In that case the testator, by a will made in 1823, gave "the whole of my landed property, situate, &c., to my eldest son, H. W., and to his children lawfully begotten. In case of his dying without issue male or female, I give the same landed property to my second son C. In case of C. dying without children or child lawfully begotten, I give the same landed property to my daughter Harriet and to her child or children lawfully begotten; and, should she have no children, she shall have a power of bequeathing it to whomever she pleases. I do hereby give and leave a full discretionary power to each of my children arriving at the possession of this landed property to dispose of it by their will and testament to one, or to each of their children, in such manner and in such proportions as to each of them, my children, shall seem meet and right and proper. My reason for this is, that as there is a title of baronet in the family, the eldest son ought to possess something more than the others, and also that I never wished to encourage disobedient

children, therefore I leave the power of punishing or rewarding, as each of them coming into possession of the property, and having children, shall think right." H. W. never had a child. C. died during the life of his elder brother, but left a daughter. H. W., after entering into possession, disentailed the estate, and devised it to his wife's nephew. The House of Lords, affirming the decisions of the Queen's Bench and Court of Appeal in Ireland, held that H. W., by virtue of the rule in Wild's Case, took an estate tail under the will; that the existence of the power did not affect the application of the rule, nor was it affected by the use of the word "children," in one instance applicable to the sons and daughter of the testator, and in the other instance meaning their sons and daughters.

AMERICAN NOTES.

A testator devised a farm to a grandson subject to a life estate, and subject to the limitation that if the grandson should die without issue then there was a devise over. It was held that this devise to the grandson was of an estate tail, and the devise over was a remainder in expectancy after the estate tail, and not an executory devise. Brown v. Addison Gilbert Hospital, 155 Massachusetts, 323.

Where a testator after a life estate in his real estate devised the remainder to his two children, to be equally divided between them; and if both children should die without leaving heirs of the body, then over in fee. It was held that the children took estates tail, subject to the life estate, with cross remainders from each child to the other; and that the devise over was of a remainder, and not an executory devise. Allen v. Ashley School Fund, 102 Massachusetts, 262.

A testator devised as follows: I give to my daughter Mehitable and her children one half of my house and land. I give to my daughter Joanna and her children the other half. But if either of my aforesaid daughters should die and leave no children, my will is, that my surviving daughters and their children should enjoy their deceased sister's part. Mehitable was unmarried at the time of making the will. Joanna was then married, but whether she ever had any child did not appear. It was held that Joanna took an estate tail. Nightingale v. Burrell, 15 Pickering (Mass.), 104, 112, 114. Chief Justice SHAW said: "To determine whether any particular devise constitutes an estate in fee or an estate tail, considered by itself, is usually not very difficult. It depends upon certain rules of construction, applied to particular forms of words, which are in a good degree settled. But it is a well-known rule of construction, that every clause and word in a will are to be taken together, however detached from each other, to ascertain the intent of the testator. When, therefore, by one clause in a will, an estate for life or an estate in fee is given by plain words, if it appear in other parts of the will, by explanatory words or by implication, that it was the intent of the testator, in such devise, that the issue of the devisee should take the estate in succession after him,

No. 25. Broadhurst v. Morris. Notes.

then the life estate is enlarged in the one case, and the estate in fee is reduced in the other, to an estate tail. . . . A devise to one and his children, he having no children at the time, is equivalent to a devise to him and his issue, and creates an estate tail. Wild's Case, 6 Rep. 288; Wood v. Baron, 1 East, 259; Davie v. Stevens, 1 Doug. 321; 6 Cruise's Dig. 280, tit. 38, c. 12, s. 27. Here it is found, that at the time of making the will, Mehitable was single, having no children; of course the devise to her was an estate tail. It is not found whether the daughter Joanna Burrell had any child at that time or not. If she had not, the point is beyond doubt that the words constitute an estate tail in her. But if she had a child at the time, we are of opinion that taking the whole together, the word 'children' must be deemed to be a word of limitation and not a word of purchase. There are several reasons for this."

A testator devised as follows: "I give to my son R. the improvement of all my real estate, which is not otherwise disposed of, to him, his children or grandchildren; and if my said son R. should decease without children or grandchildren, the said real estate is to descend to heirs of my son J. deceased;" when the will was made, R. had children, but no grandchild. It was held, that R. took an estate tail under the will. Wheatland v. Dodge, 10 Metcalf (Mass.), 502, 503. Mr. Justice WILDE said: "The question is, whether the words 'children or grandchildren' are to be construed as words of purchase or words of limitation. It is a question of construction, depending on the intention of the testator, and we think it appears, with sufficient certainty, that these words were intended to operate as words of limitation, and to create an estate tail in the lands devised to the defendant. And if such was the intention of the testator, there is no difficulty in giving them that construction, although, if such intention did not appear, the words 'children or grandchildren' would be considered as words of purchase, designating the parties who were to take under the will. The cases are numerous, in which this rule of construction has been adopted, and the most of them are referred to and commented upon by STORY, J., in his able and learned opinion, in the case of Parkman v. Bowdoin, 1 Sumner, 359."

In Kentucky where words creating an estate tail at common law, by statutory enactment create an estate in fee simple in the first taker, a devise by a testator to his nephew, " to him and his children for ever," with a devise over in the event of his dying without children, is held to give the nephew an estate in fee simple, subject to be defeated only in the event of his dying without children, the word "children" being used as a word of limitation or inheritance, and not of purchase. Hood v. Dawson, 98 Kentucky, 285; Moran v. Dillehay, 8 Bush (Ky.), 434; Lachland v. Downing, 11 B. Monroe (Ky.) 32.

See, however, Cote v. Von Bonnhorst, 41 Pennsylvania State, 243, 251, where a testator "devised and bequeathed" to M., one of his daughters, the one equal ninth part or share of his estate, "to have and to hold to her for and during the term of her natural life, and at and immediately after her decease; ... to her children in fee; but if she should die without having children, then to her brothers and sisters, their heirs and assigns for ever." At the time the

will was made, and up to the death of testator, she had no children, but by a subsequent marriage had children. It was held, that she took but a life estate under the will and not an estate tail. Mr. Justice STRONG said: "We spend no time in showing that under a devise to one for life, with a remainder to his or her children, the first taker has no freehold of inheritance. That such is the general rule is beyond doubt, and it is not denied by the complainants. But it is insisted that because the devisee in this case was without children at the time when the will was made, and when it took effect by the death of the testator, her case is not within the general rule, and that she took an estate tail. In taking this position the complainants overlook the fact that the devise to the children was not in terms immediate, and that the testator did not intend for them any present enjoyment. The devise to the children was a gift in remainder. Every reason, therefore, fails for treating the word 'children' as a word of limitation."

A GIFT Over upon a contingency to the heir, or next of kin of the testator, vests, in the absence of clear intention to the contrary, in the person or persons having that character at the time of the testator's death.

Legacy.

Holloway v. Holloway.

5 Vesey, 399-404 (5 R. R. 81).

Contingency. — Gift over to Testator's Heir.

Vesting.

Testator bequeathed £5000 in trust for his daughter A. for life, and [399] after her decease for such child or children, as she shall leave at her decease, in such shares as she should think proper; and in case she shall die, leaving no child (which was the event), then as to £1000 for her executors, administrators, or assigns; and as to the remaining £4000 in trust for such person or persons as shall be my heir or heirs at law."

The £4000 vested in A. and the other two daughters of the testator, being his co-heiresses at law and next of kin at his death. If that union of characters had not occurred, quære, whether the next of kin could not claim; and, supposing the heirs intended, what description of heirs.