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1803.

AMPBELL

v. SANDys.

. As to the first point they contended, there were no suffi-
cient 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 ap- -
pointment 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 sub-
sequent 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.

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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 1,8001. ; 8001. 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 500). 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 1051: then it recites that A. Campbell was entitled to 1,800l. ; that her husband had become possessed of 800l. part of that sum, and that the remaining 1,000l. was under her controul, and that yohn Campbell having occasion for 500l. 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 contract; 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.

AMPBELL

and the contract is therefore to be taken most beneficially 1803. for the wife and children and least beneficially for David CAM Campbell. With respect to John the husband, so far as he v.

SANDYS. was to take any thing in the lands under the contract, he is almost in the nature of a volunteer; no consideration appears to have flown from him; it cannot be conceived to have been the intent of the parties that he should take any thing until the other objects of the agreement should have been exhausted. With respect to the 500l. the articles are clear and plain ; there can be no doubt as to that ; and yet it is expressed in language which shews that the person who prepared the settlement was not apprized of the fact, that at that time there was a son of the marriage in being; he conceived the contingency might happen, that there should be no issue born of the marriage: therefore as the drawer of the articles was ignorant of this fact, and the parties did not correct his ignorance, I think I cannot take into my consideration the fact that there was issue at the date of the articles, for the purpose of giving a construction to the words in the former part of the settlement. I also think I may with propriety refer the construction of the first part of the articles to the latter part, so far as it may tend to shew what was the view of the parties with respect to the children. Now, by the latter part of the articles, the 500l. was to be converted into real freehold or chattel interests, as should be thought fit by the father and mother ; so that it might have been laid out in the purchase of lands in fee simple ; and it is impossible to doubt that the meaning of the parties was that if a fee simple were purchased, the children should take the fee simple; it was not intended that the father or mother should have any power over it, except in case of there being no issue of the marriage, or of there being issue which should die before twenty-one. It is manifest also that the view of the person drawing the settlement was to guard against John, who had already got a good deal of his wife's pro

1803.

CAMPBELL

V. SANDYS.

perty, the return for all which was only leases producing about 100l. per ann. subject to annuities and incumbrances. Therefore I cannot conceive it to have been the intention of the parties to give any thing to the father by the first clause, except on failure of the persons who were the first objects of the contract; and I cannot transfer from the second, and add to the first clause the provision, that if the issue shall die before twenty-one years the interest in the freehold and chattel leases should go over; and therefore with respect to the chattel interest there can be no doubt. Those are contracted to be given to the children of the marriage, and there being a possibility of more children than one, the father had a power to direct in what proportion those children should take ; but that means, in what proportion they should take the whole ; I cannot say that they were to take only for life or with limitation over. They must take the chattel interests absolutely.

There is a case which was not mentioned, but which with respect to the chattel property is almost in terms with the present; Williams v. Jekyll, Elliott v. Jekyll, 2 Ves. 681: a lease for three lives was granted to Elizabeth Elliott, her executors, administrators and assigns; she for valuable consideration made an assignment of the premises and all her right, title, and interest in the same to a trustee to the use of her son Fohn Williams for his life, and from and after his decease to the use of his issue lawfully begotten, and for want of such issue to the use of Elizabeth Elliott, her executors and administrators during the residue of the term : John Williams died, leaving a son and a daughter, and the daughter died soon after her father, at six years of age ; the question was between the son and the executor and residuary legatee of Elizabeth. I observe in this and in some other cases(a) Lord HARDWICKE seems to have

(a) Vid. Westfaling v. Westfaling, 3 Atk. 460.

thought that a lease for lives to one, his executors and ad- 1803. ministrators, would make the executor or administrator a** special occupant. The old authorities seem the other way

SANDYS. and if the case were before me I should feel great difficulty o in determining according to this apparent opinion of Lord Alease pur

auter vie to one, HARDWICKE. The title of an executor depends on his his executors

administrators : taking upon himself the administration of the will, and in

the executor therefore does not commence instanter but by his subse- does not take

as special ocquent act; and as to an administrator, ex necessitate, his cupant, Sembl. title cannot commence instanter; and therefore it should seem that the character of special occupant cannot properly belong to either.

Two cases are stated in Rol. Abr. tit. Occupant, G. 2 and 3. The first is an anonymous case taken from Dyer 328, b. n. 10, but which is apparently reported in 3 Leon. 35, by the name of Lord Windsor's case. Rolle, in his abridgment, certainly represents that case as having determined, that if a lease be made of land to a man and his executors, púr auter vie, the executor shall be special occupant, although it be a freehold. On the contrary, Comyn in his digest, estates, f. 1. tit. occupant, states the case in Dyer as having decided that the executor shall not have the land as special occupant; for an occupant has the freehold, which an executor cannot take; and he refers to the . second case stated in Rolle's abridgment as an authority for this point. That case, which was long subsequent to Lord Windsor's case, is certainly in conformity to the opinion of Comyn, and according to Salter and Butler, Moore 664; Cro. Eliz. 901, Yelv. 9; and the law seems to have been understood by Peere Williams, 3 P. W. 264, note D. as so settled, though Peere Williams does not appear satis": fied with it. It is observable too that the legislature in framing the English statute of frauds, 29 Car. 2, c. 3, s. 12, seems to have considered that there could be to special

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