The object of the testator evidently was, to prevent the union of the two estates, the Iridge estate, and the estates which passed by the will of 1797 and the appointment of 1810,-in the same person. Over the former, he had an absolute power of disposition; as to the latter, he had a mere power of appointing in favour of one or other of his two nephews, *834] the grandsons of the testator of 1797. Conditionally *upon the confirmation of the imperfect codicil in the will of 1797, and upon failure of issue of Sir Peckham Micklethwait, the Iridge estate is devised to John Nathaniel Micklethwait, the defendant, for life, and to his sons successively in tail male. Upon the death, therefore, of Sir Peckham Micklethwait without issue in 1853, the defendant acquired an indisputable title to the Iridge estate: and, upon the death of Colonel Micklethwait without issue in 1856, he succeeded under the limitations in the will of 1797 and the appointment of 1810 to the estates comprised in the settlement of the latter date. The question then is, whether the effect of the shifting clause in the will of 1822 was not to dispossess the defendant of his title to the Iridge estate. That clause is as follows: "And as by possibility it may so happen, that, from and after the second, third, fourth, or other younger son of my said nephew Nathaniel Micklethwait, or the heirs male of his or their respective body or bodies, shall, under the limitations aforesaid, have come into possession of my said hereditaments and real estate, the eldest or elder son of my said nephew Nathaniel Micklethwait, or the heirs male of his body, may die and become extinct, so that the second or other younger son of my said nephew Nathaniel Micklethwait, or the heirs male of the body of such second or other younger son may become entitled to the property settled on the marriage of the said Nathaniel Micklethwait, in the character of the then heir male of his body: now, in order to prevent the union of the two estates in the same person whilst there is in existence a younger son or an heir male of the body of a younger son of my said nephew Nathaniel Micklethwait, I do by this my will direct and declare, that, in case the second, third, fourth, or other younger son, or the heirs male of the body of such younger son or sons, shall by the death or failure *of issue male of the eldest or other eldest son become entitled

*835] to the said settled property of my said nephew Nathaniel Mickle

thwait, as the heir male of his body, then the limitations in this my will in favour of such second or other younger son so becoming entitled shall immediately after such event cease and become void, and the next younger son of my said nephew Nathaniel Micklethwait and the heirs male of his body shall under the limitations of this my will become entitled to my hereditaments and real estate aforesaid, in such manner in every respect as if his next elder brother, or the issue male of hist body, had been dead or become extinct." The manifest intention of the testator by that clause was, to prevent the Iridge estate, over which he had an absolute right of disposal, from being possessed by the same person who should become, in the way pointed out (not perhaps with strict accuracy), entitled to the property comprised in the will of 1797 and the settlement of 1810; and this the defendant clearly took in the character of the then heir male of the body of his father, an expression which is evidently (as appears from similar inaccuracies of expression in other parts of the will) used by the testator in the popular rather than in the strict legal sense of those words. The statement of facts at pp.

822-824, in the view above presented, clearly would not be admissible; there being no ambiguity which needs the aid of extrinsic evidence to explain it.

Lush, Q. C. (with whom was R. E. Turner), for the defendant.Three propositions will be submitted for the consideration of the court, -first, that the property referred to in the second shifting clause as "settled on the marriage of Nathaniel Micklethwait," is not the property comprised in the will of 1797, and dealt with on the marriage of Nathaniel Micklethwait in 1810, but the *Hickling, Beeston, and Tunstall estates dealt within the settlement made on the marriage [*836 of 1804; and that, consequently, the contingency provided for in the shifting clause, of the second nephew succeeding in place of the first, as "heir male of the body" of his father, has not happened, inasmuch as the defendant has succeeded to these estates, not as "heir of the body," but as devisee under the will of his father,-secondly, that, even assuming that the estates referred to in the shifting clause are the estates. devised by the will of 1797, still the contingency provided against has not happened, inasmuch as the defendant has not succeeded to these estates as "heir male of the body" of his father Nathaniel; because, taking as first tenant-in-tail after the determination of the estate for life, according to the limitations of the will of 1797, he would take, not an estate by inheritance, but an estate-tail as purchaser,-thirdly, that, even if this should be held otherwise, still the contingency provided for by the will has not been fulfilled in regard to the estates succeeded to, seeing that the estates settled (according to the plaintiff's own construction) on the marriage of 1810, comprised the whole of the estates devised by the will of 1797, while the defendant has succeeded only to a part of those estates, other part having been conveyed to Jonathan George Micklethwait conformably to the will of 1822, as the price of the defendant's acquisition of the Iridge estate. It is admitted, on the part of the plaintiff, that the defendant's title to the property in question under the will of 1822 is primâ facie indisputable. Now, it is a wellestablished rule of law that a right clearly vested is not to be divested. except by language equally plain and unambiguous. Thus, in Fazakerley v. Ford, 4 Simons 390, W. G., by his will, dated in 1775, devised his estates to his nephew for life, with remainders to his first and other sons in tail *male. T. G., the nephew's eldest son, after his father's [*837 death, suffered a recovery, and limited the estates to himself for life, remainder, subject to a term for securing a jointure and raising portions for his younger children, to his first and other sons in tail male.. S. F., by his will, dated in 1804, devised his estates to trustees, in trust for the second and subsequently born sons of T. G., in tail male: provided, that, if the lands devised by W. G. to T. G. in tail male should descend to or devolve upon any son of T. G., or any heir male of such son, and the person on whom those lands should descend or devolve, should, under the trusts of his (S. F.'s) will, be tenant in tail male of his estates, so as to be then actually in the possession or receipt of the rents and profits thereof, then his estates should be in trust for the person who would be entitled to his estates under his will, if the person on whom W. G.'s estates had so descended or devolved were dead without issue. T. G. had three sons: the eldest died in his lifetime: then T. G. died and it was held by Vice-Chancellor Shadwell, that, as W. G.'s VOL. IV.-32

estates came to T. G.'s second son encumbered with the term, S. F.'s estates did not go over under the shifting clause. In giving judgment the Vice-Chancellor says: "I am extremely unwilling at any time to make the decision of an important question depend upon the nice and accurate construction of any particular word; but I would rather construe the will by a fair and general interpretation of the words, having regard to what is shown, upon the face of the will, to be the obvious intention of the testator." Upon appeal to the Lord Chancellor, a case was sent for the opinion of the Court of Queen's Bench, and after argument the majority of that court,-Lord Denman, C. J., Parke, J., and Patteson, J. (dissentiente Taunton, J.),-certified in conformity with the opinion of the Vice-Chancellor: see 1 Ad. & E. 897 (E. C. L. R. vol. 28), *2 N. & M. 1 (E. C. L. R. vol. 28). In Thornhill v. **838] Hall, 2 Clark & F. 22, it is laid down as a rule of the courts in construing written instruments, that, when an interest is given or an estate conveyed in one clause of the instrument in clear and decisive terms, such interest or estate cannot be taken away or cut down by raising a doubt upon the extent and meaning and application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clausę giving that interest or estate. In that case, the testator recited seriatim in his will the interests he had in several leaseholds for lives, and after each recital he devised the rents and profits of each leasehold to his wife and a married daughter, and to each of his sons and unmarried daughters, severally and respectively, devising to his son R. part of the profit rent of Blackacre during the term of the lease, which was for the lives of the testator and of R. and another, and devising to his unmarried daughters nominatim different parts of the rents of Whiteacre, in addition to equal shares given to them by the preceding clause in the rents of another estate; and, further, if any of the above legatees should die, or die unmarried, he left the property bequeathed to them to be divided equally among the survivors of them :" and it was held, that the devise to R. in Blackacre was for the whole term of the lives of the cestuis que vies, and was not, on R.'s dying unmarried, cut down to an estate for life only, by the clause of survivorship, but that the words of the clause applied to the last-mentioned unmarried daughters only. In giving his judgment, the Lord Chancellor (Lord Brougham) says: "I hold it to be a rule that admits of no exception, in the construction of written instruments, that, where one interest is given, where one estate is conveyed, where one benefit is bestowed in one part of an instrument, by terms *clear, unambiguous, liable to no doubt, clouded by no obscurity, *839] by terms upon which, if they stood alone, no man breathing, be he lawyer or be he layman, could entertain a doubt,--in order to reverse that opinion, to which the terms would of themselves and standing alone have led, it is not sufficient that you should raise a mist; it is not sufficient that you should create a doubt; it is not sufficient that you should show a possibility; it is not even sufficient that you should deal in probabilities; but you must show something in another part of that instrument which is as decisive the one way as the other terms were decisive the other way; and that the interest first given cannot be taken away either by tacitum or by dubium, or by possibile, or even by probabile, but that it must be taken away, and can only be taken away, by ex

66

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pressum et certum." Here, then, is a clear and unambiguous limitation of the Iridge estate in favour of the defendant. Before they can give effect to the argument on the other side, the court must be satisfied that there is an equally clear intimation of intention on the part of the testator, that, in the event which has happened, the estate was to go over. It is submitted that the language of the shifting clause is not more applicable to the estates which passed by the will of 1797, than to the estates which formed the subject of the settlement in 1804. In truth, it is not applicable to either; but to the Hickling, Beeston, and Tunstall estates, as limited by the original settlement of the testator's father, in 1782. [COCKBURN, C. J.-The Tunstall estate was gone at this time: it had been sold in 1809.] It does not appear from the case that that fact was known to the testator of 1822. [COCKBURN, C. J.-It can hardly, I think, be presumed that he did not know the condition of the property in 1810, when he took so active a part in the proposals for the settlement of that date.] It is clear, that, if the recovery contemplated by the first settlement had never been suffered, the [*840 defendant would have been taken in the precise character of "heir male of the body of his father" indicated by the shifting clause. The deed executed upon Nathaniel's marriage in 1804, though not strictly speaking a settlement, was one which a court of equity would have so treated; and therefore the testator might well speak of the property therein mentioned as settled property. But, whether the estates referred to in the shifting clause are the estates devised by the will of 1797, or those dealt with in the so-called settlement of 1804, the event contemplated has not happened. [COCKBURN, C. J.-Now arises the question as to the admissibility of the parol evidence.] The argument on the part of the plaintiff is, that, looking at the whole of the will together, the shifting clause refers to the property devised by the will of 1797: on the other hand, the defendant submits that it is more strictly applicable to the settlement of 1804. [COCKBURN, C. J.-I think it is impossible to adopt either view, without looking at the surrounding circumstances.] The case, it is submitted, is not within the rule which warrants the reception of parol evidence to explain the intention of the testator. Assuming parol evidence to be admissible, the papers in question are not legitimate evidence: there was nothing to identify the first document as the testator's instructions for his will; it may have been a mere abstract compiled from the draft. [COCKBURN, C. J.-The language used is rather indicative of its being instructions, than of its being an abstract.] The fact that the document accords with the provisions in the will does not make it admissible, or justify its reception for the purpose of explaining the will. The only ground upon which it could be received is, that it is proved to be a document which contains the testator's *instructions for drawing his will. What proof is there [*841 of that, except the bare fact that the document is found in the office of the deceased solicitor? [COCKBURN, C. J.-Tied up with that which indisputably is the genuine draft of the will.] That carries the case no further. Neither does the statement of the clerk; for, his belief that the pencil marks were made by him is founded upon the assumption that the document was what it purports to be, in which case only would it have been his duty to have made them. [BYLES, J.Part of the draft will is in the handwriting of that clerk.] But it is

submitted that this is not a case in which such evidence is admissible at all. In Doe d. Hiscocks v. Hiscocks, 5 M. & W. 363,† a testator devised lands to his son John H. for life, and, from and after his decease, to his (the testator's) grandson John H., eldest son of the said John H., for life, and, on his decease, to the first son of the body of his said grandson John H. in tail male, with other remainders over. At the time of making the will, the testator's son John H. had been twice married: by his first wife he had one son, Simon, by his second wife an eldest son, John, and other younger children, sons and daughters: and it was held, that evidence of the instructions given by the testator for his will, and of his declarations, was not admissible to show which of these two grandsons was intended. Lord Abinger, in giving the judgment of the court, after referring to a great number of authorities, concludes thus," Where the description is partly true as to both claimants, and no case of equivocation arises, what is to be done is, to determine whether the description means the lessor of the plaintiff or the defendThe description, in fact, applies partially to each, and it is not easy to see how the difficulty can be solved. If it were res integra, we should be much disposed to hold the devise void for uncertainty; but *the cases of Doe d. Le Chevalier v. Huthwaite, 3 B. & Ald. 632

ant.

*842] (E. C. L. R. vol. 5), Bradshaw v. Bradshaw, 2 Y. & Coll. 72,† and others, are authorities against this concluison. If, therefore, by looking at the surrounding facts to be found by the jury, the court can clearly see, with the knowledge which arises from those facts alone, that the testator meant either the lessor of the plaintiff or the defendant, it may so decide, and direct the jury accordingly: but we think that, for this purpose, they cannot receive declarations of the testator of what he intended to do in making his will." Applying the principle of that case here, it is clear that parol evidence ought not to be received for the purpose of showing which estates the testator indicated by the expressions used in the shifting clause. [COCKBURN, C. J.-The_testator's declarations would be admissible to explain that which upon the face of the will appears to be ambiguous.] No doubt. [COCKBURN, C. J.But for the settlement of 1804, the language of the shifting clause would have been satisfied by the settlement of 1810. If so, there is an ambiguity, which justifies the admission of parol evidence.] It is submitted that the language cannot refer to the estates settled by the will of 1797. [WILLIAMS, J.-Your objection is, that neither property precisely answers the description in the shifting clause. Is not that the case which is alluded to in Doe d. Hiscocks v. Hiscocks? I find it further alluded to in a case of Douglas v. Fellows, Kay 114. There, a will contained a legacy to Commodore P. D., of S., and a like legacy to the children of P. H. D. This last legacy was claimed by the three children of H. O. D., and also adversely by the five children of P. D., whose real name was P. J. D. P. J. D. and H. O. D. were both in the same degree of relationship to the testatrix, and she had given like legacies to their brothers and sisters. H. O. D. was dead at the date of the will. It was held, *that the previous gift to Commodore P. D., and the fact that

*843] the gift was not to the children of "the said" P. H. D., together with the intention manifested in the will to provide for all the members of the D. family, was sufficient to enable the court to decide, upon the face of the will, that the children of H. O. D. were intended, although