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1833.

Dox dem.
GALLINI
against
GALLINI.

of the sons and daughters unborn in the lifetime of the testator would be void, Jee v. Audley (a), Leake v. Robinson (b); and if that limitation be too remote, every other limitation is so. At all events, the words "without issue," when applied to the grandchildren surviving, ought not to have a greater effect in enlarging their estates to estates tail, than the same words when applied to the sons and daughters in the subsequent part of the will. Give the words "without issue" that effect when applied to the sons and daughters, and no descendant will be disinherited, and the general object of the testator will be carried into effect. This case is not distinguishable from Murthwaite v. Jenkinson (c), and Wollen v. Andrewes (d). In the first of those cases, the devise was to the testator's three nieces equally for their respective lives, and after the decease of each, the lawful issue of each to have his or her mother's share for life in like manner, and if either of the nieces should die in the lifetime of the others or other of them without issue, her share was to go equally to the survivors for their lives, and afterwards to the lawful issue of the survivors in like manner; and if all the others and their issue save one should die without issue, then the survivor was to have the whole for her life; and after her decease, the lawful issue of such surviving niece, if more than one, to have the whole equally; and if but one, then such one should have the whole of such part as was personal to his or her own use; and to hold such part as freehold to them, and each of them, if more than one, their and his or her heirs and assigns as tenants in

(a) 1 Cox, 324.
(c) 8 B. & C. 357.

(b) 2 Mer. 363.
(d) 2 Bing. 126.

common

common; if but one, then to such one, his, or her heirs and assigns for ever. The Court of King's Bench decided that, if the devise had been of the legal estate, the three nieces would have been tenants in tail. They also held that there were cross remainders in tail among the nieces; and it was decided that an only child of one of the nieces, if he survived his mother and two aunts, and they should have no other child, would be tenant in tail of the freehold. In Wollen v. Andrewes (a), the words child or children are used in the gift to the grandchildren, as in this will, and the gift to them is for life only, with a gift over in like manner to their children, and the estate tail was raised on the gift over to the other children of the testator in the event of any of his children dying without issue. Mortimer v. West (b) is also a case nearly resembling the present.

Talfourd Serjt. for the defendant A. Gallini.

The lessor of the plaintiff cannot succeed unless he satisfy the Court that Francis, the eldest son of the testator, took an estate tail. It is sufficient for the defendants to establish that this is not so. But the construction they contend for is, that the named sons and daughters of the testator took respectively estates for life in the several premises devised to them, with remainders in tail to their children who should survive them respectively, with cross remainders in tail among their respective issue. The first step towards arriving at the true construction of the devise is to disentangle it of the confused terms in which it is couched. It is obvious that there is something omitted

(a) 2 Bing. 126.

(b) 2 Sim. 274.

or

1833.

Doz dem.
GALLINI

against GALLINI.

1833.

Doz dem.
GALLINI
against
GALLINI

or inserted by mistake, or some words used out of their ordinary grammatical construction. Now, first, it may be fit to refer to the parts of the will preceding the clause on which the question arises. The testator, having devised all his estates to trustees in terms sufficiently large to give them a fee, proceeds to designate the parties in whose favour the devise is made. He first gives to his son Francis an estate in Berkshire, to his daughters Jesse and Louise estates in Hanover Square respectively, and to his son John an estate in France, in terms which clearly denote only estates for life, unless by legal implication they are enlarged into estates tail. He next interposes a trust estate to preserve contingent remainders, thereby strongly confirming his intention to give to his sons and daughters, whom he has named, estates for life only. Then, in case of the death of any of his named children, or the forfeiture of their estate, he gives the estates, limited to them for life, to the children of each who shall be living at the time of the parent's decease, or born in due time afterwards, — estates, in terms, for life only, in the premises antecedently devised for life to their respective parents; all such children to take as tenants in common, with benefit of survivorship if any one shall die without leaving issue. The words "without leaving issue" will probably enlarge the estate of these the devisor's grandchildren, who have survived their parents, into estates tail. So far there is no obscurity or legal difficulty. But the next clause proceeds, "And from and after the decease of all and every the children of each of my said sons and daughters without issue." The question is, what the word each means here; it cannot mean

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if all the children of each of his sons and daughters shall

die without issue, then the lawful issue shall take, for the race would be extinct. But each must be read distributively; as, "any," or, "either." Then it will read thus:" And from and after the decease of all the children of any of my said sons and daughters without issue, I devise the estate or estates to them respectively limited as aforesaid, unto the lawful issue of such child or children." But the word such cannot refer back to the children who have died without issue; it must have relation to something subsequent, and it must be read as implying " as shall have issue," thus providing for the cross remainders among the issue of the respective children, and so on for all time. The first takers then have estates for life, with remainder to their surviving children in tail, with cross remainders in tail among the issue of each of the grandchildren. It is observable, that in speaking of the grandchildren the testator uses the term children, which is a word of purchase, whereas, in speaking of the succeeding generations, he uses the term issue, which is a word of limitation.

The difficulty in the way of the present construction is, that the testator has followed out the grandchildren before he has provided for the death of the children without issue. But his mind, carried beyond its immediate purpose, now reverts to it again. He provides for the failure of issue of either of his sons and daughters, by devising the estates of those dying without issue to the survivors during their respective natural lives, in equal shares, as tenants in common. "And after their respective deaths, then to the children of the survivor:" that must mean survivors. Then to the issue of the children. And for default of issue of all except one, then to the sole survivor

VOL. V.

Tt

1833.

DOR dem.

GALLINI

against GALLINI.

1833.

Doɛ dem.
GALLINI
against
GALLINI.

survivor of all for ever. The words" dying without issue" may be resorted to to enlarge the estate of the first takers; but that is not their meaning here. Looking to the whole will, the term "dying without issue" must mean "dying without such issue." Ginger dem. White v. White (a) and Blackborn v. Edgeley (b) shew that "without issue," may mean "without such issue." In Morse v. The Marquis of Ormond (c), the words "after failure of issue" were construed to mean "the failure of the issue aforesaid." If the words without issue are so read here, the limitation contended for on the other side fails. But supposing the expressions relied on denote an estate tail, it does not follow that this is an estate tail in Francis in possession, to the effect of entirely defeating the gift to his children as tenants in common. Suppose one object of the testator was to embrace all the issue of Francis, without defeating the express estates given to the children of Francis who should be living at the time of his death and their issue, this object may be effected and under these terms, by giving to Francis an estate tail in remainder, expectant on the determination of the estates tail to such of his children as may survive him. To hold that the first takers take an estate tail in remainder removes the difficulty suggested in case of a son dying in the lifetime of

the testator..

This case is distinguishable from Murthwaite v. Jenkinson (d) and Mortimer v. West (e), because, here, the intention of the testator is to provide for the children of his children who should be living at the time of their parents' death. In the former case, it is obvious that the

(a) Willes, 348.
(c) 1 Russell, 382.
(e) 2 Simons, 274.

(b) 1 Peere Williams, 600.
(d) 2 B. & C. 357.

nieces

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