1832.

May 3.

DOE dem. REW and Others v. LUCRAFT.

A. to such son

of mine as

"My house in THE lessors of the Plaintiff sued, as the acting devisees in fee, in trust for sale under the will of James Newton of London, wine-merchant, deceased, heir of John Newton of Broadclyst, in the county of Devon, gent., deceased, to recover possession of one undivided moiety of a freehold messuage, with the appurtenances, situate in Aldgate High Street, which the Defendant Nicholas Lucraft claimed to hold to him and his heirs under the will of John Newton.

shall first attain twentyone years, when he shall attain such age, and his heirs; but in

case I depart

this life with out leaving a son, or leaving such, none shall attain twenty-one, to my daughter Jane, if she shall attain twenty-one,

and her heirs;

but should I depart this life without leav

ing issue, to L. and his heirs."

Testator

left one child, his daughter Jane, who

died without

issue under the age of twenty-one: Held, that L. took nothing by the devise to him.

Upon the trial at the London sittings last Michaelmas term, a verdict was found, by consent, for the Plaintiff, subject to the opinion of the Court on the following

case:

Henry Newton of Aldgate High Street, London, winemerchant, being seised in fee-simple of the entirety of the freehold property in question, by his will, dated 4th of August 1803, devised the same to his brother James Newton and his assigns for life, with remainder to trustees to preserve contingent remainders; with remainder to the testator's nephew Henry Newton, son of the testator's eldest brother, John Newton, for his life; with remainder to trustees to preserve contingent remainders; with remainders in strict settlement to the issue of said Henry Newton, the nephew; with remainder to the testator, Henry Newton's, own right heirs for ever.

The testator Henry Newton, died on the 27th of November 1819, without issue, leaving said John Newton, his eldest brother and heir at law, and said James Newton, his only other brother, him surviving. His will was proved in the prerogative court of Canterbury 11th

of

of January 1820. Henry Newton, son of John Newton, died without issue in the lifetime of the testator. The said John Newton, by his will dated 29th of October 1822, duly executed and attested to pass freehold estates, devised as follows: "I give and devise all that my reversion in fee expectant upon the life estate of my brother James, of and in all that messuage or tenement and premises, formerly two messuages or tenements, situate in Aldgate High Street, now in the occupation of my said brother, unto Arthur Clarke and Mark Ashford and their heirs; in trust nevertheless as to one undivided moiety or half part thereof for Nicholas Lucraft, his heirs and assigns for ever: and as to the other undivided moiety or half part thereof, in trust for such son of mine by my present wife issuing as shall first attain the age of twenty-one years, as and when such son shall attain such age, and for his heirs and assigns for ever. But in case I shall depart this life without leaving a son, or, leaving such, none shall live to attain the age of twenty-one years, then, as to the said last-mentioned moiety or half part, in trust for my daughter Jane Newton, if she shall live to attain the age of twenty-one years, and for her heirs and assigns for ever. But in case my said daughter Jane Newton shall depart this life under that age, then I give and devise the said last-mentioned moiety or half part unto the said Arthur Clarke and Mark Ashford and their heirs, in trust for such other my daughter by my present wife as shall first live to attain the age of twenty-one years, and for her heirs and assigns for ever. But should I depart this life without leaving issue, then I give and devise the entirety of the said messuage or tenements and hereditaments, situate in Aldgate aforesaid, unto the said Arthur Clarke and Mark Ashford and their heirs, in trust for the said Nicholas Lucraft, his heirs and assigns for ever."

The

1832.

DOE dem.
REW

บ.

LUCRAFT.

1832..

DOE dem.

REW

V.

LUCRAFT.

The said Nicholas Lucraft was John Newton's wife's brother; and at the time of the making the will of John Newton, James Newton was not nor had ever been married, and was of the age of sixty-five years and upwards.

John Newton died in or about the month of March 1824, in the lifetime of James Newton, leaving Jane Newton, his only child, and without having revoked or altered his will; and the same afterwards was duly proved.

The said Jane Newton died in October 1826, an infant, at the age of four years or thereabout, leaving James Newton, her uncle, her heir at law, her surviving.

James Newton, by his will dated 22d of April 1823, duly executed and attested to pass freehold estates, after bequeathing certain pecuniary legacies, as to all the rest, residue, and remainder of his estate and effects, of what nature or kind soever and wheresoever, that he should be possessed of, interested in, or entitled to at the time of his decease, and not thereinbefore disposed of, gave, devised and bequeathed the same and every part thereof to his trustees and executors, the lessors of the Plaintiff, to hold to them, their heirs, executors, and administrators, upon the trusts therein mentioned, and appointed them executors of his said will. The testator republished his will on the 21st of July 1827; died in October 1830; and the lessors of the Plaintiff proved the will.

It was agreed that either party should be at liberty, upon the argument of the case, to refer to any part of the said will of John Newton.

The question for the opinion of the Court was, whether the Defendant Nicholas Lucraft took any and what estate in the moiety of the freehold premises in question under the ultimate devise contained in the said will of John Newton.

Scriven

Scriven Serjt. for the lessor of the Plaintiff.

The event upon which the entirety of the premises in Aldgate was to go over to Lucraft under the will of John Newton never took place; for he died, leaving issue; and if the fact had been otherwise, the devise of the entirety to Lucraft would have been void as too remote after a general failure of issue. Forth v. Chapman (a), Beauclerc v. Dormer (b), Barlow v. Salter (c), Franklin v. Lay. (d)

Stephen Serjt. for the Defendant. The devise over, upon the testator's dying without leaving issue, means such issue as were the objects of the preceding devise, that is, such issue as should live to attain twenty-one years; and the will must, therefore, be read as if it had been written, "without leaving such issue as aforesaid." There is abundant authority for putting that construction on the words "dying without leaving issue," when employed after previous devises to children. Blackborn v. Edgley (e), Morse v. Marchioness of Ormond (g), Ginger v. White (h), Target v. Gaunt (i), Farthing v. Allen (k), Gulliver v. Wickett (1), Fonnereau v. Fonnereau. (m) No doubt the devise over, in case of dying without leaving issue, would be void, if the Court could not imply an estate tail in the first takers; but that, according to Tenny v. Agar (n) and numerous other cases, may properly be implied.

TINDAL C. J. It seems to me that, on the proper construction of this will, our judgment ought to be for the Plaintiff. The question arises on the

1832.

DOE dem.
REW

ข.

LUCRAFT.

words of a will, by which the testator, John Newton, devises to Nicholas Lucraft certain messuages, with the appurtenances, in Aldgate High Street; and the words are, "should I depart this life without leaving issue, then I give and devise the entirety of the said messuage or tenements and hereditaments situate in Aldgate aforesaid unto Arthur Clarke and Mark Ashford, and their heirs, in trust for the said Nicholas Lucraft, his heirs and assigns for ever." Now these words may be taken according to their natural meaning, and then they imply a devise over after a general failure of issue which would be void, as too remote: or they may be taken to mean a dying without leaving a child (or chil. dren; in which case the event on which the devise over is to depend will not have happened; for the testator died, leaving a daughter. But, on the part of the De fendant, a third construction has been contended for, namely, that we should take the will as if it had been written "Should I depart this life without leaving such issue as aforesaid," and that this is to mean, not only such issue as had been before described, namely, a son and daughter, but such issue, with the restrictions which accompanied the mention of them in the preceding de vise. But, though cases have been cited to shew that the word issue may be applied to such issue as have been described before, there is no case to shew that when used in such sense it is also to include the restrictions which may have accompanied the mention of such issue in preceding parts of the will. Supposing the testator here to have meant, by dying without leaving issue, dying without leaving a son or daughter, what is there to shew he meant to restrict that to a dying without leaving a son or daughter who should have attained the age of twentyone years? If we were to import such a restriction into this part of the will, we should manifestly do violence to the intention of the testator expressed in another part.

Where