1806.

ROE dem.
CHILD

versus

WRIGHT]

Devise. Condition.

DoE dem.
EVERETT

versus

COOKE.

called the Coal Yard,' and passes the fee, and this is going no further than where the devise was all my estate in Kirby Hall, on which Lord Hardwicke observed that it passed not only the land, but the interest in it besides, for though here is a locality, Kirby Hall, yet the testator meant the in, terest in it too; for suppose, and I believe it has happened, that a man were to devise all his real estate in England, here is a locality, and yet none will say that the interest does not pass as well as the estate.

*

And

if the locality applied to Kirby Hall, yet in Goodwyn v. Goodwyn, Lord Hardwicke said, that a devise of all the testator's estate in A. would carry a fee. And in this sense, giving effect to all the words this may be understood; and we shall be effectuating the intent of the 'testator, who probably meant in this case as testators usually do, to give an estate in fee, where the devise is general and without words of limitation."

JUDGMENT for the DEFENDANT.

DOE on the demise of EVERETT, and others against
CoоKE and others.-11th Feb.

A. devised a term to C. for life, and, after his decease, to his child or
children, and their executors,&c. but upon condition that, in case he
should die an infant unmarried and without issue, then the devise
should go over to D. &c. C. survived 21, married and died without
issue; held, that the condition must be read as entire, and the
devise over to D. was void.

THIS

1

HIS was an ejectment for lands in the parish of Butleigh, in the county of Somerset, on the several demises of W. Everett, Mary Mears, and Jane Cooke, "all laid on 10th of April, 1305. The defendants, John Cooke and Stephen Cooms, and Rebecca his wife, pleaded not guilty. The cause was tried before the honourable Mr. Baron Graham, at the summer assizes at

* Vesey, 228.

Bridgwater, 1805, when a verdict was found for the
plaintiffs, damages one shilling, costs forty shillings,
subject to the opinion of the court upon the following
case:-Thomas Browning being possessed of a leasehold
interest in the premises in question, for a long term of
years, still unexpired, on the 17th of January, 1760,
made his will, and thereby amongst other things
devised the premises in question, as follows, " also [
give, devise, and bequeath the use and occupation of
a dwelling-house and out-houses, lying in Butleigh
aforesaid, with a close of pasture ground to the said
dwelling-house adjoining and belonging, called Kel-
ways, with the rents, issues, and profits thereof, to
Thomas Cooke, son of William Cooke, of Butleigh, afore-
said, husbandman, by Eliz. his late wife, deceased, to
hold to him the said Thomas Cooke and his assigns,
(from and immediately after the death of the said
Susannah Kelway, widow, or the day of her marriage
again to any other husband, which shall first happen)
for and during the term of his natural life; and, after
his decease, I give and devise the same to the child or
children of the said T. Cooke to be begotten by him on
the body of any woman or women that he shall hereafter
intermarry with, his, her, and their executors, and admi-
nistrators, and assigns for ever. But my will is upon
this further condition, that in case the said Thomas
Cooke shall die an infant, unmarried, and without
issue, then I do hereby give, devise, and bequeath the
said dwelling-house, outhouses and close of pasture
thereunto adjoining, with the appurtenances unto the
said William Cooke, and his three children by the said
Eliz. Cooke, his late wife, deceased, share and share
alike, (as tenants in common, and not as joint-tenants,
his her and their heirs, executors, administrators, and
assigns, for ever." Thomas Browning died shortly after,
not having revoked or altered his will. Susannah
Kelway mentioned in the will, died soon after the
testator. Thomas Cooke entered on the premises in

1806.

Dox dem.
EVERETT

versus

COOKE.

1806.

Doɛ dem.
EVERETT

versus

Cooks.

question, and afterwards married Jane Buyafield one of the lessors of the plaintiff, held the premises in question to his death, and died in February, 1802, never having had any issue and being about 46 years old. William Cooke named in the will, the father of Thomas, and of the defendants, John Cooke and Rebecca Cooms, the defendants, are two of the three children of the said W. Cooke by Eliz. his late, then wife mentioned in the will, and are in possession of the premises in question; the other was Mary Callow, who has been dead some time. The lessors of the plaintiffs claim under Thomas Browning's will, and are entitled to the premises in question if the limitation to W. Cooke and his three children by Eliz. Cooke, is void under the facts stated. The question for the opinion of the court is, whether the plaintiffs are entitled to recover; if so the verdict is to stand; if not a nonsuit is to be entered,

"The question is, whether Cooke and his three chil

PELL, for the plaintiff. the limitation over to IV. dren by Eliz. Cooke is void, Thomas Cooke having lived beyond the age of 21,and having married and then died without issue? In the construction of the will, the court will give effect to as many words in it as can fairly stand together, and the limitation cannot now take effect, because only one of the contingencies on which it was to vest has taken place, namely, the dying without issue: whereas the condition expressed in the will is entire, and consists of three parts united, namely the dying an infant, dying unmarried, and dying without issue, and the estate does not go over to W. Cooke, unless Thomas Cooke happens to die under age as well as unmarried, and without issue. In this construction all the words used by the testator are comprehended in the condition, and have a clear meaning; but, in the construction favourable to the defendants, some of the words must be omitted and

of

others changed; as and must be read or. Thus in
Barker v. Suretees, where there was a devise to one-
in fee, but in case he dies before he attains the age
21 years or marriage, and without issue, then to go
over, it was held that the attaining 21 was a perform-
ance of the condition, and that upon the authority of
Price v. Hunt, where or was construed conjunctively,
it might be read, as if it were and if he dies before
21 unmarried, and without issue:" which he did not
do, for one of the circumstances failed. And in
Framlingham v. Brand,‡a devise 'to R. and his heirs,
and in case he shall happen to die in his minority and
unmarried, or without issue, then over,' it was held that
the estate was to go over upon one contingency, the
dying under age of which the other two contingencies
were only a qualification. If it were not so, there
would be nothing to qualify the contingency, if he
dies without issue,' and it would mean a dying with-
out issue generally: but, by making it a qualification
of the first contingency, it reduces it to a certainty,
that by the word 'issue' is meant issue of the body, a
dying without issue within the rules of law and which
creates an estate-tail. Bigge v. Bensley,§ Forth v.
Chapman, Target v. Gaunt."¶

Lord ELLEN BOROUGH, C. J.

"There you read

the words if he shall die an infant unmarried and without issue, as if it were, if he shall die an unmarried infant and without issue."

And Porter v. Bradley,** being cited by PELL,

LAWRENCE, J. said "Lord Kenyon must have been misunderstood, if he is supposed to have said that Forth v. Chapman was not law.”

*2 Str. 1175.

Pollex. 645. ‡ 3 Atk. 390, 1 Wils. 140, S. C. §1 Bro. C. C. 187. || 1 P. Will. 663. ¶ Ibid.

1806.

EVERETT

versus

Cook E.

1806.

Doɛ dem,
EVERETT

cersus

Cooze.

DAMPIER, contrà. "The word issue, though it be a word of indefinite extent, cannot prejudice the condition, because the issue would have taken under the first devise, and it must clearly be confined to issue at the time of his decease. In all the cases where or is read and there has been a devise to the first taker in fee, and the words were intended to give a limitation to that devise, and to destroy the estate devised by the former words. In this case W. Cooke had four children, all of whom were infants, namely, Thomas Cooke and three others. He devises to Thomas Cooke for life, with remainder over to his children, and then devises to the three other children, and to W. Cooke, and it is clear that he did not mean that this estate should sink into the residue while there were any children remaining of W. Cooke. For he has not given an absolute estate to T. Cooke, but only an estate for life, and then if this sinks into the residue, if he dies without children of his body, it must sink, although there are children of W. Cooke living, who it was clearly intended by the testator, should take in case of Thomas Cooke's death without issue. The construction which the plaintiff contends for strikes out the words unmarried and without issue from the condition, at least it strikes out the words without issue; for he could have no issue unless he was married. But it will be altogether sensible and pertinent if it be read thus, in case Thomas Cooke dies an infant, or dies unmarried, or, being married, dies without issue, then to go over to W. Cooke. A similar construction was had in Goshawke v. Chiggell, where one devised a term to H. his daughter habendum to himself and wife for their lives, and after their decease to the said H. and if she hath heir of her body, then to her assigns; provided that if she died unmarried having

* Cro. Car. 154, Sir W. Jones, 205.