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1803.

CAMPBELL

V. SANDYS.

was declared and agreed upon, that a good and sufficient deed of settlement, such as counsel learned in the law should advise and direct, should forthwith be made and executed by the parties to the effect and purpose following, viz. That the said David Campbell should by such deed assign and make over to trustees (therein named) the said leasehold interest for all the terms for lives and years thereof respectively to come,“ upon trust to the use of the said “ David Campbell for life, and after his decease, to the “ use of yohn Campbell for life, and after his decease, to the

issue of the said John and Anne in such chares and pro

portions as the said John should by deed or will duly “ executed, direct and appoint; and for want of such ap

pointment to go to such children eqally share and share " alike: and for default of such issue to the heirs, execu“tors and administrators of the said John, during all “ the respective terms of the leases of said premises,” subject to certain annuities and charges. And it was further agreed that the sum of 6001, the remaining part of said sum of 1,000l. should remain at interest or be applied in the purchase of real freehold or leasehold estate, and the interest thereof be paid to the said Anne Campbell for her life, notwithstanding her coverture, and after her decease to the said John Campbell for his life, if he should survive her, ard after his decease, the said sum of 500l. or the lands or leases to be purchased therewith to go to the issue of said Fohn and Anne in such shares and proportions as they or the survivor of them should by deed or will direct or appoint; and for want of such appointment to be equally divided among such children, share and share alike: And in case of no issue of said marriage, or if all such issue should die before the age of twenty-one, that a power should be inserted in the settlement for the survivor of said John and Anne, to dispose of said 500l. or such estate as should be

1803.

purchased therewith to such persons and uses as the survivor should think fit.

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At the time of the execution of these articles, John Campbelland the plaintiff his wife had a son living, David Campbell the younger: they had also had a daughter, who died some time before, under age, but no other issue. The son lived to attain his full age, and died in Nov. 1787, without issue, having made a will, whereby after reciting his title to these premises subject to his father's life estate, he devised them to trustees in trust to assign the same to such persons as the plaintiff should direct and appoint, and in failure of such appointment, to the plaintiff, her heirs and assigns for ever. The plaintiff obtained administration de bonis non to David the younger, whose executor had died intestate.

Fohn Campbell having survived his son, took upon him to mortgage these premises, and afterwards to devise them to one of the defendants subject to the mortgage. The bill was filed against his personal representative, devisee, and heir at law, who was also heir at law of David the younger, and against the mortgagee, praying an execution of the articles and to be decreed to the possession of the premises, and for an account of rents and profits, &c.

The Attorney Geueral, Mr. Macartney, Mr. Townsend, and Mr. Crofton for the plaintiff, contended, first, That David Campbell the younger took the absolute interest in these premises subject only to the previous life estates. These articles are to be construed as if before marriage as the wife is equally a purchaser, the articles being in consideration of her separate property over wich she alone had the controul ; or at least they are to be construed in analogy to the settlement which would be directed by the court if the husband filed a bill for raising a legacy bequeathed to his wife,

1803.

CAMPBELL

SANDYS.

having no provision by settlements and according to either construction, the father would have but an estate for life and a permanent provision would be made for the issue at large. Now here are no words of limitation to take this property to the children of children, and yet it never could have been the intent that in case of the death of any of the children leaving issue, it should have gone to the father. The whole interest therefore must have been intended to have vested in the children subject to the power of appointment in the father. It is also evident from that

part

of the articles relating to the 500l. which was agreed to be settled, that the parties used the word " issue,” as synonimous to “ children;" and the words “ for default of such issue,” in the first part of the settlement should therefore be construed " in default of such children," that is if there should be no such children," it being evident from the latter part of the deed that the drawer was not aware of there being a child then in esse,

Secondly. Supposing David Campbell jun. to take only a quasi estate tail. Then the chattel interests would vest absolutely in him, and his will was such a disposition of the property as would bar the remainder over of the free hold leases, according to the opinion of Lord KENYON in Doe ex dem. Blake v. Luxton, 6 T. R. 292: mere articles are held sufficient; 1 Atk. 524, and there is no reason why a will making an actual disposition should not be equally so.

Mr. Burne for the mortgagee: Mr. Bushe for the den visee of John Campbell: Mr. Ball and Mr. Bell for the heir

at law.

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As to the first point they contended, there were no sufficient words to give more than a life estate to any of the issue : Hay v. Lord Coventry, 3 T. R. 83: or, the quantity of interest they were to take was suspended until an appointment made by their father who never executed any. As to the second point they argued, that a will never can operate as a bar to a remainder in this sort of property. That a deed or other act inter vivos is only held to operate as a bar ex necessitate, lest the property might never be unfettered, 3 P. Wms. 265; and though the quasi tenant in tail may be held to have the power to bar the remainders over, he must do so by an act to take effect in his life time, for his will comes too late ; as in the case of a joint-tenant, who may by deed bar the right of survivorship, but cannot do so by his will. The statute(a) also which makes estates pur auter vie devisable makes them devisable in cases only where, if not devised, they would be assets under the subsequent provisions of the statute ; and this quasi estate tail in David Campbell would not be assets for payment of any debts of his under the statute.

But supposing such a power to exist of barring remainders by will in this sort of property, it ought in analogy to cases of proper estates tail to be confined to tenant in tail in possession, and here David Campbell the younger had but a remainder during his father's life.

Lord CHANCELLOR.

The rights of the parties arise on articles executed on the 6th of June 1771, after the marriage of John Campbell with the plaintiff Anne; after the birth and death of a daughter of the marriage and after the birth and during the life of David Campbell the only other issue of that marriage.

(a) 7 W. 3, c. 12, s. 9.

1803.

CAMPBELL

Sandys.

This instrument was entitled “ Heads of a settlement agreed “to be made and entered into," and was therefore merely a memorandum of that which was afterwards to be reduced into the form of a legal conveyance. The consideration was this : Mrs. Campbell had a fortune of 1,800.. ; 800l. had been received by her husband; and there remained 1,000l. which had been the subject of a prior settlement, giving her a controul over it. She entered into an agreement with her husband and his father, in consideration of giving up 500l. part of the 1,000l. for the immediate use of her husband, that a settlement should be made of the property of the father, and also of 500l. the remainder of the 1,000. on her and her children. This instrument recites the title of D. Campbell to several leases in Castle-street, part held for lives renewable for ever and part for years, producing a clear yearly profit of 105l.: then it recites that A. Campbell was entitled to 1,8001 ; that her husband had become possessed of 800l. part of that sum, and that the remaining 1,000l. wasunder her controul, and that yohn Campbell having occasion for 5001. all the parties had agreed to call in that sum for his use and benefit; and it was agreed that a good and sufficient deed of settlement, such as counsel should advise, should forthwith be made and executed, so that the articles were to be considered merely as instructions for preparing a settlement. (His lordship then stated the remainder of the articles).

This differs from the case either of an actual conveyance, or of a devise operating as a conveyance(a); it being merely instructions for a conveyance, a mere matter of con-; tract; and it is therefore necessary to see what was the contract between the parties, and how that contract ought to be executed. The contract is for a settlement in consideration of Mrs. Campbell's giving up the sum of 500l. ; she consequently became a purchaser for herself and her children;

(a) Vid. Taggart v. Taggart, Sup. 84.

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