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heir special occupant, I cannot have the authority of the decision of Lord Hardwicke in Williams v. Jeykill and Elliot v. Jeykyll, because he has expressly said he was not called upon to determine in that case what ought to be the construction of the settlement, if the estate had been an estate pur auter vie limited to one and his heirs.; whether he considered the lease before him as creating a mere chattel interest, I will not pretend to say; he had great knowledge of the law, and particularly the law of estates ; and he appears to have conceived that a lease pur auter vie to a man and his heirs required a different consideration. Such a lease is clearly a freehold, capable of a limitation in nature of an estate tail ; and Lord HARDWICKE's reasoning does not go directly to a limitation of such a lease, but endeavours to avoid it: and his reference to the case of Forth v. Chapman seems rather to shew that he thought the words in an actual conveyance" for want of such issue” might as to such property be construed as creating an estate tail. I have therefore been compelled to consider whether the words which have been used in these articles (mere minutes as instructions for a deed to be subsequently executed) ought to be construed as intended to give a quasi estate tail to the children for the sake of the limitation to the father, as the estate in question is capable of such a disposition. The word “ issue” is ambiguous; it may mean either “chil“ dren,” or “ issue in infinitum:" In the present case I think it impossible upon the words“ to the issue of the said John and Anne," not to say that the word“ issue" was used as synonymous to a child and was not meant to express issue indefinitely. The issue were to take in such shares as fohn Campbell should appoint, which could not apply to issue indefinitely, nor did the power of appointment extend to any limitation of estate ; and the next clause, which disposes of the property in default of appointment, uses the word “ children” as describing the same persons before described by the word " issue," and the subsequent words “ for default of 1803. “ such issue,” must therefore, I think, receive the same con- CAMPBELL struction. In Elliot v. Jekyll, the word is simply " issue,"
SANDYS. the word there is not explained at all; there is nothing to give it any particular interpretation: and it is therefore capable of the general meaning of all issue in infinitum. But in this case I think I cannot consider the word “ issue" as meaning issue in infinitum, I think it must be confined to children, and that the whole interest to be conveyed by the intended settlement was intended to be thereby vested absolutely in such children, and the limitation over to have been intended in default of children, for I think I must put the existence of a child at the date of the articles, out of my consideration.
But it has been contended that the interest was suspended by the power of appointment, and therefore nothing vested in the child. In Madoc y. Jackson, 2 Bro. C. C. 588, Lord THURLOW thought that a power of appointment could not be held to suspend the vesting of an interest given in default of appointment. It is true (as observed in 4 Ves. jun. 792) that was not the point decided in the case, though from the report it would be supposed otherwise; but that certainly was the opinion of Lord THURLOW; and there are other cases which shew that a power of appointment of this description will not suspend the vesting of the interest.(a) But this power was only to limit proportions; and that only in the event of the existence of more children than one; consequently, the power never arose at all, there having been only one child capable of taking under the settlement; and the instrument is to be considered as if the power had not been inserted. On the whole, I think it must have been intended to give the complete and absolute interest in the property to
(a) Cunningham v. Moody, 1 Ves: 174; Doe v. Martin, 4 T. R.94.
1803. the children ; that John Campbell was not intended to take CAMPBELL any thing but in default of children, that is, in case there
should be no child. I think this is the fair construction, as SANDYS.
well as to the leasehold for lives, as to the chattel property; and that the equitable right to the absolute property was therefore vested in David Campbell the younger, and passed by his will
It has been contended that if this had been a quasi estate tail the will would have operated to bar the quasi estate tail and limitation over. It is not necessary for me to decide this point; but it has been so much argued, and on the authority of a dictum of Lord KENYON, that I think it may be useful to state what has occurred to me upon it. I think the point ought to be very well considered before any person ventures to make a decision according to that dictum. The whole law on the subject is founded on the principles applied to the case of a fee-simple conditional at common law; that the party had a power of alienation, the effect of which would be to devest the estate under which the person claiming as heir of the body, or by virtue of a limitation over, was to take. If that estate was devested, the right of the issue, and of the remainder-man in default of issue, was destroyed, because the estate on which it was to depend was also destroyed. I can find no decision that at all warrants Ld. KENYON's dictum ; I find that he only stated it as something that Lord NORTHINGTON threw out in Grey v. Mannock; I have not found any note of that case. On the other hand in Blake v. Blake,(a) it was never considered that as will could have such operation ; for I find, from my note of that case, that though the estate was devised, the argument did not turn on the will; nobody conceiving that the estate would pass by it, if the quasi estate tail subsisted at:
(a) 3 P. Wms. (Coxe's Edit.) 10. note (1).
the death of the testator. The whole argument turned on the fact of the surrender of the lease and the grant of a new lease to the quasi tenant in tail; and this was held to bar, because the estate was altered. The quasi tenant in tail had gained the absolute interest at law, and there was no equity to constitute him a trustee for his own issue or for the remainder-man. I was of counsel myself in that cause : Baron EYRE was senior Baron and gave the judgment in the absence of the Chief Baron: Mr. Madocks and Lord ELDON were also of counsel in the cause ; and I am persuaded that no such idea was entertained either by the court of Exchequer, or by any of the counsel concerned as that the will would have operated to bar the plaintiff. Few persons were better acquainted with decided cases, and especially those decided in his own time than Mr. Madocks; and if that point had ever been decided by Lord NORTHINGTON, we should probably have heard of it from him. On principle I think it impossible that a will can have that effect. A will, so far as it is a disposition of property, is a designation of a special heir against the right of the person to whom the property would otherwise come by what may be called devolution of law : but that cannot from the nature of the instrument have the effect of depriving of a right a person who does not claim by devolution of law, but by virtue of a prečeding gift or instrument. That must have been the ground on which it was established that the will of a joint-tenant cannot sever the jointure. It is an instrument by which the maker is enabled only to bar his heir át law or representative, but which cannot be allowed to alter the rights of third persons(a).
(a) So, although a husband may by act inter vivos charge or dispose of the chattels real of his wife, his will would not be suffi. cient to bind the wife surviving.
I have looked into the case of Prichard v. Quinchant, Amb. 147. It is a very loose note of a case in which there appears nothing more in Ambler than some short observations of Lord HARDWICKE applied to a very ill-drawn instrument. The case came afterwards before the court on an amended bill, on the 21st July 1753, and Lord HARDWICKE was of opinion that the settlement ought to be rectified according to the instructions, as against volunteers. On the construction of the settlement itself in favour of the mortgagee and creditors, he conceived nothing was given to the children but by virtue of an appointment, as in the case of the duke of Marlborough v. Lord Godolphin, 2 Ves. 61, so that the words of the settlement in Ambler are probably incorrect.
LARGAN v. BOWEN AND OTHERS.
Dec. 23. Bill filed by
HE bill was filed in the year 1798, by the plaintiff, creditor on behalf of himself who was a legatee in the will of George Hartpole deceased, and other cre. ditors, and a
to have his legacy satisfied, and that such creditors and lereceiver ap
gatees as should come in under the decree should be paid pointed : the receiver shall out of the estate of said Hartpole, in which the defendants not be dis
Bowen and Lecky had respectively life-estates in right of charged upon the consent of the plaintiff, against the consent of an incumbrancer, who is a party defendant. An al. legation that such incumbrance was satisfied, referred to the master. So although an incumbrancer were not a party, nor had proceeded in the suit, and was obliged to file a new bill, yet Sembl. the court would not discharge the receiver, and would direct that such bill should be taken as filed at the same time with the former,