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word "issue," and the subsequent words "for default of "such issue," must therefore, I think, receive the same construction. In Elliot v. Jekyll, the word is simply “issue," 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 v. 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.

CAMPBELL

V.

SANDYS.

1803. the children; that John Campbell was not intended to take CAMPBELL any thing but in default of children, that is, in case there

V.

SANDYS.

should be no child. I think this is the fair construction, as 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 he 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 a 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 preceding 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 at 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 sufficient to bind the wife surviving.

1803.

CAMPBELL

V.

SANDYS.

1803. CAMPBELL

V.

SANDYS.

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.

Dec. 23.

Bill filed by

creditor on be

and other cre

LARGAN v. BOWEN AND OTHERS.

THE bill was filed in the year 1798, by the plaintiff, half of himself who was a legatee in the will of George Hartpole deceased, to have his legacy satisfied, and that such creditors and legatees as should come in under the decree should be paid out of the estate of said Hartpole, in which the defendants Bowen and Lecky had respectively life-estates in right of

ditors, and a receiver appointed: the receiver shall not be dis

charged upon the consent of the plaintiff, against the consent of an incumbrancer, who is a party defendant. An allegation 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.

their wives under Hartpole's will. Hovenden (who had a charge on the estate) and Doran his assignee were made parties in the progress of the suit, and a receiver had been appointed by consent. The defendants Bowen and Lecky afterwards came to an agreement with the plaintiff and the other parties (except Hovenden and Doran) and obtained a consent from them that the bill should be dismissed. Upon these consents and also upon an alleged consent of Doran, the defendants Bowen and Lecky moved at the rolls that the bill should be dismissed; but that consent appearing to be invalid, the Master of the Rolls refused the motion. There being a balance in the hands of the receiver, Bowen and Lecky then moved that this balance should be paid to them, and obtained a conditional order: at the same time, Doran moved on a cross notice, that this balance should be paid to him in liquidation of his demand, and that the bill should be retained, with liberty for him to carry on the cause upon indemnifying the plaintiff, and that the receiver should be continued, which motion the Master of the Rolls refused, and thereupon Doran appealed to the Lord CHAN

CELLOR.

At the same time that Doran's motion came on, Mr. Wm. Johnson and Mr. Radcliff moved on behalf of Bowen and Lecky to discharge the receiver. They stated that Doran had in fact no claim on the estate; that whatever claim Hovenden originally had, had since been satisfied; and that Doran notwithstanding continued to retain the title deeds in his hands to the prejudice of the estate. They insisted that if these circumstances appeared on a motion to appoint a receiver at Doran's instance, the court would refuse the application, and therefore it will not now continue the receiver at the instance of Doran alone; it is the established practice of the court, that a defendant shall not be allowed to take up a cause until after a decree to an account, and a creditor is VOL. I.

Q ૧

1803.

LARGAN

V.

BOWEN.

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