1832. WORTHAM บ. James Wortham, trustees, to sell or exchange the estates therein mentioned" (and which were the estates devised by the residuary clause of the elder Biscoe's will)," and MACKINNON. lay out the purchase-money in the purchase of other estates to be settled to such of the uses, upon and for such of the trusts, intents, and purposes, and with, under, and subject to such of the powers, provisoes, declarations, aud agreements in and by the said in part recited will of the said Elisha Biscoe deceased, particularly or by reference limited, declared, contained, or mentioned of and concerning the messuages, lands, and hereditaments thereby respectively devised or intended so to be, and by the said act authorised to be sold or exchanged as thereinbefore mentioned, as then were, or at the time of making such sale, exchange or exchanges, assurance or assurances, as in the said act mentioned should be existing undetermined or capable of taking effect, or as near thereto as the nature and qualities of the estates so to be purchased or had in exchange would then admit of: and it was thereby further enacted, that until such sales, conveyances, exchanges, and assurances should be respectively made and executed, the said hereditaments, or so much of them as should not be sold or exchanged should be held and enjoyed, and the rents, issues, and profits thereof received and taken by and or the benefit of such person or persons who would have been entitled to, and ought to have received the same, in case the said act had not passed. And the last clause of the said act was in the following words: "Saving always to the King's most excellent Majesty, his heirs and successors, and the said Timothy Hare Earle and Ann his wife, and their children, and the said Edmund Rolfe, and Catherine Frances his wife, and their children, in respect of the aforesaid sums of 2000l. and 3000l. only, and all and every person or persons, bodies politic or corporate, his, her, and 1832. WORTHAM V. their respective heirs, successor, and executors and administrators, other than and except the said Elisha Biscoe, the son, and his heirs, and the heirs of the body of the said Elisha Biscoe, the son, all such estates, rights, MACKINNON. titles, claims, and demands whatsoever, of, in, to, or out of the messuages, lands, and hereditaments hereby authorized to be sold or exchanged as aforesaid, or any part or parts thereof as they or any of them had before the passing of this act, or could or might have had or enjoyed in case the same had not been made." In pursuance of the act, the surviving trustee, James Wortham, sold the said devised estates, and with the purchase-money bought others. The following was an abstract of the conveyance taken by Wortham of the estates so purchased, which were estates now contracted to be sold to Mackinnon. By indentures of lease and release, bearing date 26th and 27th of March 1817, the release made between James Payne, of the first part, divers other persons of the second, third, fourth, fifth, sixth, seventh, and eighth parts, the said James Wortham, of the ninth part, and Elisha Biscoe, of the tenth part, -[after several recitals, deducing the title of the vendors and the contract for sale of certain estates thereinafter expressed to be thereby released to the said James Wortham; a recital of the before mentioned will of Elisha Biscoe the elder, of the 7th of November 1772, and that the said testator departed this life on or about the 28th of January 1776, without having revoked or altered his said will, leaving Frances his widow, and said Elisha Biscoe (party thereto) his only son, and Ann, who had intermarried with Timothy Hare Earle, and Catherine Frances, who had intermarried with Edmund Rolfe, the younger, his only daughters; a recital of the before mentioned indentures of lease and release of the 4th and 5th of February 1789, and the 11th and 12th of June 1793, and the three recoveries Pp 2 1832. WORTHAM V. coveries suffered in pursuance thereof; of the beforementioned act of parliament of the 34 G. 3., and also that several of the hereditaments comprised in the said MACKINNON. recited act of parliament, and thereby directed to be sold by the said Edmund Calarny and James Wortham as aforesaid, had been accordingly sold by them; and that the several hereditaments so contracted to be sold to said James Wortham as aforesaid, were so contracted to be sold to him as surviving trustee acting by virtue of or under the said act of parliament, and at the request and with the consent and approbation of the said E. Biscoe,]-the several parties conveyed their respective interests in an estate called Titcombe, in the county of Bucks, which was the same estate now contracted to be sold to the Defendant Mackinnon, to the said James Wortham, as such surviving trustee, under the said act of parliament: to hold the same to the said James Wortham and his heirs for ever, nevertheless upon the uses, trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, and declarations thereinafter limited and expressed concerning the same. And it was by the then abstracted indenture agreed and declared by and between the said parties thereto, that James Wortham and his heirs should thenceforth stand and be seised of the said estate and premises, to such of the uses, upon and for such of the trusts, intents, and purposes, and with, under, and subject to such of the powers, provisoes, and declarations in and by the said in part recited will of Elisha Biscoe, deceased, partly or by reference limited, declared, contained, or mentioned of and concerning the messuages, lands, and hereditaments thereby devised, and by the said in part recited act of parliament authorized to be sold or exchanged as aforesaid, as were then existing undetermined and capable of taking effect." Elisha Biscoe, the son, is since dead, having by his 1832. WORTHAM บ. will, bearing date the 26th of May 1824, given and devised all and singular his freehold messuages, farms, lands, tenements, estates, hereditaments, and premises whatsoever, and including his estate in the county of MACKINNON. Bucks, callled Titcombe, unto the said James Wortham and Thomas Bramall, upon trusts therein mentioned and authorized in an event which has happened, viz.: a deficiency of the personal estate to answer the legacies, absolutely to sell and dispose of any part or parts of his said real estate. On the 17th of October 1830, the Defendant Mackinnon entered into an agreement with Wortham and Bramall for the purchase of the Titcombe estate. The question for the opinion of the Court was, what estate had the said James Wortham and Thomas Bramall, in, and what power had they over, the lands, hereditaments, and premises conveyed and assured as aforesaid, by the said indentures of the 26th and 27th of March 1817? act. Coleridge Serjt. for the Plaintiffs. The question is, what uses were existing undetermined at the time of the It will be contended, that these words apply only to uses determined by natural events or efflux of time; and not to those determined by the act of the parties. But, independent of the plain meaning of the words, what was the intention of the act? It must be construed like a deed, and the recital may be looked at to shew the intention of the legislature. That shews that the uses to the daughters were considered as determined. The saving clause refers to the 2000l. and 3000l. alone: and the act was not passed for the benefit of the daughters, but for the benefit of Elisha Biscoe. The daughters have no interest in the purchase-money under the act, and if the act had never passed, they could have had no claim. But it will be said, that we must look at the words of Pp 3 the 1832. WORTHAM V. the conveyance of the 26th and 27th of March alone, and not at the act of parliament; and Cholmondeley v. Clinton (a) will be relied on; a case which, as to this MACKINNON. point, may be considered still undetermined, and which only decided that the Court were bound to give effect to words in a deed having a distinct legal meaning, and that the meaning must be applied to the time at which the words are used. Here the question is, what meaning is to be put on words which admit of more than one meaning. To construe them, we must look to the state of the interests at the time. Taddy Serjt. contrà. This is a question merely on the construction of a deed, not of a will, And it is a clear principle, that the Court must give effect to the operative words of a conveyance, and that they cannot control them by a dubious expression contained in recitals: Cholmondeley v. Clinton. The operative words of the deed, are, that the property is conveyed " upon and for such of the trusts, intents, and purposes, and with, under, and subject to such of the powers, provisoes, and declarations, in and by the said in part recited will of Elisha Biscoe, deceased, partly, or by reference, limited, declared, contained, or mentioned, of and concerning the messuages, lands, and hereditaments thereby devised, and by the said in part recited act of parliament authorized to be sold or exchanged as aforesaid, as were then existing undetermined and capable of taking effect." The limitations of the will of E. Biscoe were to his son for life; remainder to the issue of the son, successively in tail; remainder to the testator's after-born sons in tail; remainder to testator's daughters in tail; remainder to testator's own right heirs. If, as the act recites, the remainders, (a) 2 B. A. 625. 2 Jac. & W. 84. after |
