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Doe dem. Rew and Others v. LUCRAFT.
« My house in THE lessors of the Plaintiff sued, as the acting devisees A. to such son – in fee, in trust for sale under the will of James Newof mine as
ton of London, wine-merchant, deceased, heir of John tain twenty. Newton of Broadclyst, in the county of Devon, gent., one years,
deceased, to recover possession of one undivided moiety when he shall attain such of a freehold messuage, with the appurtenances, situate age, and his in Aldgate High Street, which the Defendant Nicholas heirs ; but in
art Lucraft claimed to hold to him and his heirs under the this life with- will of John Newton.
a Upon the trial at the London sittings last Michaelmas son, or leaving such, none term, a verdict was found, by consent, for the Plaintiff, shall attain subject to the opinion of the Court on the following twenty-one, to my daughter case :Jane, if she Henry Newton of Aldgate High Street, London, wine
merchant, being seised in fee-simple of the entirety of twenty-one, and her heirs; the freehold property in question, by his will, dated 4th but should I. of August 1803, devised the same to his brother James depart this life
ut leave Newton and his assigns for life, with remainder to trusing issue, to tees to preserve contingent remainders ; with remainder L. and his heirs."
to the testator's nephew Henry Newton, son of the testTestator ator's eldest brother, John Newton, for his life; with left one child, remainder to trustees to preserve contingent remainders; his daughter
who with remainders in strict settlement to the issue of said died without Henry Newton, the nephew ; with remainder to the tesissue under the age of
tator, Henry Newton's, own right heirs for ever. twenty-one: The testator Henry Newton, died on the 27th of No
that vember 1819, without issue, leaving said John Newton, L. took no. thing by the his eldest brother and heir at law, and said James Newdevise to him. ton, his only other brother, him surviving. His will
was proved in the prerogative court of Canterbury 11th
of January 1820. Henry Newton, son of John Newton,
as not was
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 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 (6), 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
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 mes. suage or tenements and hereditaments situate in Aldgate aforesaid unto Arthur Clarke and Mark Ashford, rand 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 chile dren; in which case the event on which the devisè peer 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 bad 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 des 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.