purchased therewith to such persons and uses as the survivor should think fit.

At the time of the execution of these articles, John Campbell and the plaintiff his wife had a son living, David Campbell the younger: they had also had a daughter, who died some time before, under age, but no other issue. The son lived to attain his full age, and died in Nov. 1787, without issue, having made a will, whereby after reciting his title to these premises subject to his father's life estate, he devised them to trustees in trust to assign the same to such persons as the plaintiff should direct and appoint, and in failure of such appointment, to the plaintiff, her heirs and assigns for ever. The plaintiff obtained administration de bonis non to David the younger, whose executor had died intestate.

John Campbell having survived his son, took upon him to mortgage these premises, and afterwards to devise them to one of the defendants subject to the mortgage. The bill was filed against his personal representative, devisee, and heir at law, who was also heir at law of David the younger, and against the mortgagee, praying an execution of the articles. and to be decreed to the possession of the premises, and for an account of rents and profits, &c.

The Attorney Geueral, Mr. Mucartney, Mr. Townsend, and Mr. Crofton for the plaintiff, contended, first, That David Campbell the younger took the absolute interest in these pre-, mises subject only to the previous life estates. These articles are to be construed as if before marriage as the wife is equally a purchaser, the articles being in consideration of her separate property over wich she alone had the controul; or at least they are to be construed in analogy to the settle, ment which would be directed by the court if the husband filed a bill for raising a legacy bequeathed to his wife,

1803. CAMPBELL,

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having no provision by settlement; and according to either construction, the father would have but an estate for life and a permanent provision would be made for the issue at large. Now here are no words of limitation to take this property to the children of children, and yet it never could have been the intent that in case of the death of any of the children leaving issue, it should have gone to the father. The whole interest therefore must have been intended to have vested in the children subject to the power of appointment in the father. It is also evident from that part of the articles relating to the 500l. which was agreed to be settled, that the parties used the word "issue," as synonimous to "children;" and the words "for default of such issue," in the first part of the settlement should therefore be construed" in default of such children," that is " if there should be no such children," it being evident from the latter part of the deed that the drawer was not aware of there being a child then in esse.

Secondly. Supposing David Campbell jun. to take only a quasi estate tail. Then the chattel interests would vest absolutely in him, and his will was such a disposition of the property as would bar the remainder over of the freehold leases, according to the opinion of Lord KENYON in Doe ex dem. Biake v. Luxton, 6 T. R. 292: mere articles are held sufficient; 1 Atk. 524, and there is no reason why a will making an actual disposition should not be equally so.

Mr. Burne for the mortgagee: Mr. Bushe for the devisee of John Campbell: Mr. Ball and Mr. Bell for the heir at law.

As to the first point they contended, there were no sufficient 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 appointment 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 subsequent 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.

(a) 7 W. 3, c. 12, 8. 9.

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CAMPBELL

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SANDYS.

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CAMPBELL

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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 1,8004; 8001. had been received by her husband; and there remained 1,000%, 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 5001. 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 1054.: then it recites that A. Campbell was entitled to 1,8004; that her husband had become possessed of 800%. part of that sum, and that the remaining 1,000l. was under her controul, and that John Campbell having occasion for 500/. 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 500%; she consequently became a purchaser for herself and her children; (a) Vid. Taggart v. Taggart, Sup. 84.

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