disposition of the property in the manner just pointed out; and it contains no reference to the non-completion of the desired arrangement. It appears to us that the reasonable construction to be put on the whole of the provisions of the will taken together, is, that the shifting clause in question was intended to take effect on the completion of the [*862 *arrangement contemplated by the testator as to the transfer of the Surrey, Middlesex, and London property, in the event of the rest of the estates becoming united with the Iridge estate by failure of the issue of the elder nephew, then in possession of the former; and that, consequently, the term "property settled on the marriage of Nathaniel Micklethwait," although general and unqualified, must be taken to mean that property short of that portion of it which it was part of the scheme of the will to have separated from it.

We are therefore of opinion that the estates referred to in the shifting clause are the estates which passed by the will of 1797, and which came to the defendant as first tenant in tail in remainder after the determination of the prior estate of his elder brother; that the character in which the defendant actually took the estates, was intended to be described by the term "heir male of the body" of his father; and that, consequently, the contingency provided for by the shifting clause has happened. It follows that the plaintiff is entitled to our judgment.

Judgment for the plaintiff.

Upon this judgment the defendant brought a writ of error, which came on for argument on the 5th of February, 1859, in the Exchequer Chamber, before Pollock, C. B., Erle, J., Martin, B., Crompton, J., Bramwell, B., Watson, B., and Hill, J.

Rolt, Q. C. (with whom were Lush, Q. C., and R. E. Turner), for the plaintiff in error (defendant below), submitted, that the second shifting clause in the will of 1822 was inoperative, on the ground of ambiguity,-*that the estates devised by the will of 1797 were [*863 not "property settled" on the marriage of Nathaniel Micklethwait No. 2, that the deed-poll of the 29th of November, 1810, was not a settlement of the estates devised by the will of 1797,-that the clause did not apply to the estates settled on either of the marriages of Nathaniel Micklethwait No. 2, as the plaintiff in error had not succeeded to those estates as "the heir male of his father," that the clause was inoperative, as the plaintiff in error had not succeeded to the whole of the estates devised by the will of 1797, or to the whole of the estates settled on the first or second marriage of his father, that the alleged draft and instructions for the will of 1822 were inadmissible in evidence, -and that the will of 1852 was admissible. The following cases were cited-Doe d. Hearle v. Hicks, 8 Bingh. 475 (E. C. L. R. vol. 21), 2 M. & Scott 759 (E. C. L. R. vol. 28), 1 Clark & F. 20, Thornhill v. Hall, 2 Clark & F. 22, Doe d. Luscombe v. Yates, 5 B. & Ald. 544 (E. C. L. R. vol. 7), 1 D. & R. 187, Clavering v. Ellison, 3 Drewry 451, Kiallmark v. Kiallmark, 26 Law J., Ch. 1, Scarisbrick v. Eccleston, 5 Clark & F. 398, Burrell v. Crutchley, 15 Ves. 544, Fazakerley v. Ford, 4 Simons 390, 1 Ad. & E. 897 (E. C. L. R. vol. 28), 2 N. & M. 1 (E. C. L. R. vol. 28), Taylor v. The Earl of Harewood, 3 Hare 372, and Harrison v. Round, 2 De Gex, M'N. & G. 190.

Atherton, Q. C. (with whom were R. Clarke and Honyman), for the defendant in error (plaintiff below), submitted,-first, that, on the death of Colonel Micklethwait, and on the defendant coming into possession of the 1797 estates, the shifting clause in the will of the 24th of October, 1822, took effect, and the Iridge estate became the property of the plaintiff below, secondly, that it appeared by the case that the property known as the 1797 estates, was the property referred to by the testator *864] of 1822 as the property settled on the marriage of Nathaniel Micklethwait No. 2,-thirdly, that the language of the will of the 24th of October, 1822, and the other facts, show that the defendant (below) did succeed to the 1797 estates, in the character of the heir male of the body of Nathaniel Micklethwait No. 2, within the meaning of the testator of 1822,-fourthly, that, assuming that there was any ambiguity as to the property referred to, the instructions for the will of the 24th of October, 1822, and the draft of such will, were admissible in evidence to remove the same,-fifthly, that the said instructions clearly showed what was the property intended by the testator of 1822 as the settled property of Nathaniel Micklethwait No. 2,-sixthly, that the will of the 29th of May, 1852, was not admissible in evidence against the plaintiff below,-seventhly, that the fact of Nathaniel Micklethwait No. 2 and Colonel Micklethwait having complied with the wishes of the testator of 1822, by confirming the codicil of 1799, did not nullify the shifting clause. Cur. adv. vult. MARTIN, B., now delivered the judgment of the court:This is error from the judgment of the Court of Common Pleas upon a special case. The action is ejectment to recover possession of an estate called Iridge, in the county of Sussex.

The material facts are these:-One John Micklethwait, being seised in fee simple of estates in Norfolk, Suffolk, Essex, Middlesex, Surrey, London, and Norwich, and in the county of Westmeath, in Ireland, by his will, dated the 4th of December, 1797, devised them to the use of his eldest son, John Micklethwait, for life; with remainder to his first and other sons in tail male; and, in default of such issue, and in case *865] an appointment should be made by his said son John *Micklethwait, to the use of such one of his grandsons Nathaniel or Sotherton (the sons of a deceased son Nathaniel), as his son John should during his lifetime appoint,-to hold the same to such one of them during the term of his life, and, after the decease of such grandson to whom the estate should be appointed, to the use of the first son of the body of such grandson and the heirs male of his body, and, in default of such issue, to his second, third, and other sons in tail male. There were other limitations, which do not seem material.

The testator afterwards made an unattested codicil, whereby he proposed to revoke his will as regarded his estates in Surrey, Middlesex, and London, and to devise them to his son Jonathan George Micklethwait, in fee.

After his death, John Micklethwait entered into possession of all the estates, and during his lifetime acquired other real estates, principally from the family of his mother, whose name was Peckham, and part of which was the Iridge estate, the subject of the present question.

In the year 1804, Nathaniel, the grandson, being a minor, and enti tled under a marriage-settlement made in 1782 to an estate-tail in certain

estates in Norfolk, called the Hickling and other estates, and being about to be married, on the 18th of January, 1804, executed a deed of covenant, whereby he professed to bind himself within three months after he attained twenty-one, to settle these estates to the use of himself for life, and, after his death, to the use that his wife should receive an annuity of 1000l. a year, and, subject thereto, to the use of himself in fee.

In January, 1805, having come of age, he suffered a recovery, and, by an indenture dated the 28th of that month, limited the use of these estates to himself in fee. *On the 14th of February, 1805, there was born an only child of this marriage, a son, afterwards Colonel [*866 Micklethwait. In October, 1810, Nathaniel Micklethwait was about to marry a second time, his first wife being dead, and proposals were made for a settlement. John Micklethwait was a party to these proposals; and ultimately it was arranged, that, in pursuance of the power given him by his father's will, he should immediately appoint all the estates thereby devised to Nathaniel and his male descendants, and that Nathaniel should charge his Hickling estate with a jointure of 10007. a year for his intended wife, and make provision for her and the children of the marriage. In pursuance of this arrangement, John Micklethwait, on the 29th of November, 1810, executed a deed of appointment, and thereby, after reciting his father's will, appointed to Nathaniel Micklethwait all the estates therein mentioned, from and after his own death without issue, to hold the same according to the form and effect of his father's will.

On the 26th of December, a marriage-settlement was executed by Nathaniel Micklethwait, whereby the Hickling estate was conveyed to trustees to secure a jointure to his intended wife of 1000l. a year, and to raise 15,000l. for younger children, and, subject thereto, to the use of Nathaniel Micklethwait, in fee. This marriage took place in the same month; and the defendant in this suit is the eldest son of this marriage, and the plaintiff the second.

In the year 1822, John Micklethwait made his will, bearing date the 22d of October in that year: and the present question arises upon the construction of a shifting clause contained in it.

The will recites the will of his father, and the power of election and appointment thereby given to him, and that his father had by a codicil attempted to revoke *his will as to the Surrey, Middlesex, and London estates, and to devise them in fee to Jonathan George [*867 Micklethwait, but that the codicil, not having been duly executed, became inoperative; that he himself had exercised his power of election by appointing that after his decease without issue male, all the lands devised by his father's will should go to Nathaniel Micklethwait for his life, with remainder to his first and other sons in tail male; and that it was his wish that the codicil in his father's will should be confirmed, and the devise of the estates in Surrey, Middlesex, and London to Jonathan George Micklethwait in fee legally established. He then devised some annuities, and, subject thereto, he devised all his real estate in Sussex or elsewhere to trustees and their heirs, To the use of Sotherton Micklethwait for life, with remainder to his first and other sons in tail male, and, in default of such issue, to his brother Jonathan George for life, with remainder to a nephew, John, for life, and to his sons in tail VOL. IV.-33

male,-provided that, if his nephew Nathaniel and a son of his should in the lifetime of his brother Jonathan George effectually confirm the codicil of his father's will by conveying the estates in Surrey, Middlesex, and London, to him in fee simple, that then the limitation to Jonathan George and to John and to the first and other sons of John should cease, and immediately on such event, or otherwise in default of such issue as aforesaid, the testator's lands in Sussex and elsewhere should go and pass to the use of the defendant (the second son of Nathaniel), for life, with remainder to his first and other sons in tail male, and, in default of such issue, to the third and other sons of Nathaniel and their heirs, in tail male respectively, with the ultimate remainder in fee to his brother Jonathan George. Then there follows the clause upon which *868] the present question arises. It is in substance *as follows:"And as by possibility it may happen, that, after the second, third or other younger son of Nathaniel, or the heirs male of his body, shall, under the limitations aforesaid, have come into possession of my estates, the eldest son of Nathaniel, or his heirs male, may die and become extinct, so that such second or other younger son of Nathaniel, or his heirs male, may become entitled to the property settled on the marriage of Nathaniel, 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 a younger son of Nathaniel, I direct, that, in case the second or other younger son, or the heirs male of his body, shall by the death or failure of the issue male of the eldest son become entitled to the said settled property of Nathaniel, as the heir male of his body, then the limitation in the will in favour of such second and other younger son shall immediately after such event cease, and the next younger son of Nathaniel, and the heir male of his body, shall become entitled to all my real estates in such manner and in every respect as if his eldest brother, or the issue male of his body, had been dead or become extinct." By a subsequent clause in the will, he directs that Sotherton Micklethwait and all others except Jonathan George who should become entitled to his estates, should take the name and arms of Peckham (his mother's family), jointly with those of Micklethwait.

The testator died in 1824. In 1826, Nathaniel and his eldest son, then Colonel Micklethwait, conveyed the estates in Surrey, Middlesex, and London to Jonathan George, in fee simple. In September, 1853, Sotherton Micklethwait died without issue, and the defendant entered into possession of the Iridge estate, by virtue of the limitation in the above will.

*Nathaniel died in January, 1856, and Colonel Micklethwait, *869] his eldest son, died in July of the same year; and thereupon all the property devised by the will of 1797, except the Surrey, Middlesex, and London estates, came to and was taken possession of by the defendant under and by virtue of the appointment executed by John Micklethwait on the marriage of Nathaniel in 1810; and the question now to be decided, is, whether the plaintiff, being his next brother, has thereupon become entitled to the Iridge estate by virtue of the shifting clause in the will of October, 1822.

It was contended, in the argument below, that, as the defendant became entitled to the estates mentioned in the will of 1797, excepting

the London, Surrey, and Middlesex estates, on the death of Colonel Micklethwait, the Iridge estate passed to the plaintiff, the third son of Nathaniel, by virtue of the shifting clause.

The contention on the part of the defendant was, that these estates did not answer the description of "property settled," and therefore that the shifting clause did not take effect; and, secondly, it was contended, that, if the testator meant the estates mentioned in the will of 1797, and dealt with in the settlement on the second marriage of Nathaniel in 1810, he meant all the estates there comprised; and, inasmuch as the London, Surrey, and Middlesex estates were taken out of that settlement, the shifting clause did not take effect.

The Court of Common Pleas gave judgment for the plaintiff; and this writ of error has been brought.

The case was argued at the sittings after Hilary Term, 1859; and we are of opinion that the decision of the Court of Common Pleas is right, and their judgment should be affirmed.

Upon the first point, looking at all the facts of the *case, we [*870 are clearly of opinion that the construction put upon the will by the Court of Common Pleas was right, and that the term "property settled," mentioned and referred to in the shifting clause, are the estates above referred to as devised by the will of the testator's father, of 1797, and mentioned in the settlement of 1810.

As the reasons of the Common Pleas on this point are so clear and conclusive to our minds, we refrain from repeating the arguments. It is necessary, however, to go into our reasons for affirming the judgment of the Common Pleas, that the shifting clause took effect on the defendant becoming entitled to these estates, excepting the London, Surrey, and Middlesex estates, which were taken out of the settlement by the confirmation of the codicil, in pursuance of the wish expressed in the will of the testator John Micklethwait. This depends on the true intent and meaning of the will,-or, in other words, on the intention of the testator, to be collected from the will itself.

It was contended, that, to divest an estate already given, the clause must be clear, and be construed strictly. No doubt the intention must be manifest from the terms of the will. We adopt the expression on a similar question, of Sir L. Shadwell, V. C., in Fazakerly v. Ford, 4 Simons 415, "not to make the decision of such an important question depend upon the nice and accurate construction of any particular word; but we would rather construe the will by a fair and general interpretation of words, having regard to what is shown upon the face of the will to be the obvious intention of the testator."

It appears to us, in construing these clauses, that this was the meaning of the testator:-Looking at the clause of the will limiting the Iridge estate to the second son of Nathaniel, he studiously excludes the *eldest son of Nathaniel and his posterity from any interest in [*871 the Iridge estate; for, on failing the second and younger sons of Nathaniel, the reversion is devised to Jonathan George and his heirs for ever. The limitation to the second son of Nathaniel takes effect on the happening of either of two events,-first, if the codicil be confirmed,secondly, if not confirmed, on failure of the issue of John, son of Jonathan George. In the first case, he takes the settled estates without the London, Surrey, and Middlesex estates: in the second, the whole of