effect to the words "in defanlt of issue," have not hesitated to interfere with the preceding limitations. In Doe dem. Blandford v. Aplin (a) a devise to "A. for life, and after his decease to and amongst his issue, and in default of issue," then over, was held to give A. an estate tail. Mortimer v. West (b) is to the same effect. Secondly, at all events Thomas Charlton, the eldest son of Samuel, took an estate of inheritance in fee simple. Supposing the court to reject the construction that the words "for want of such issue," give an estate tail to Samuel Charlton-then those words import a contingency, and mean that in the event of there being no eldest son of Samuel Charlton living at the death of the testator, the estate shall go to the daughters; consequently, the eldest son would take a fee by implication. Where lands are devised to a party with a limitation over in case he die under twenty-one, he is held to take a fee by implication; 2 Powell on Devises, by Jarman, 395. And the rule was decided to be the same where the limitation over was in the event of death under eighteen years. Doe dem. Elsmore v. Coleman. (c) The same doctrine is to be found in Frogmorton dem. Bramstone v. Holyday. (d) Atcherley Serjt. for the defendant. It is contended, that under the will in question, Samuel Charlton took an estate in tail male, with remainder to his daughters, as tenants in common, in tail general, remainder to Samuel Charlton in tail general, with an ultimate remainder to him in fee; and that on his death the estate devolved on Henry the second son, under such estate tail male, to the exclusion of the daughters of the eldest son. It evidently was the intention of the devisor, first, that all the issue of Samuel Charlton should take under the de 1840. DoE dem. ย. CHARLTON. 1840. DoE dem. v. vise; and, secondly, that the male issue should succeed before the female; and to effectuate the latter intention, the word son in this will is to be construed as a word of limitation, and as synonymous with male issue. In CHARLTON. Bifield's case (a), under a devise to A., and if he died not having a son, the word "son" was taken to be used as nomen collectivum, and the devise was held to be an estate tail. So, in Milliner v. Robinson (b), where a testator devised to his brother J., and if he should die having no son, that the land should remain over, it was held that J. had an estate tail. In Robinson v. Robinson (c) the testator devised his real estate to L. H. for and during the term of his natural life, and no longer, provided he altered his name and took that of Robinson, and lived at his house at B., and after his decease to such son as he should have, lawfully to be begotten, taking the name of Robinson, and for default of such issue, then over to W. R. in fee; and after willing that W. R. might present whom he pleased to any vacancy in any of the testator's presentations during his (W. R.'s) life, and that bonds of resignation should be given in favour of W. R.'s children who were designed for holy orders; and after the same should be disposed of as aforesaid, then the testator gave the perpetuity of the presentations to the said L. H. in the same manner and to the same uses as he had given his estates. The judges of the court of King's Bench (d), on a case sent to them by Lord Hardwicke, certified their opinion that L. H. "must by necessary implication, to effectuate the manifest general intention of the testator, be construed to take an estate in tail male." The Lords Commissioners who succeeded Lord Hardwicke in the (a) Cited by Hale C. J. in King v. Melling, 1 Ventris, 231. (c) 2 Ves. Sen. 225. ; 3 Atk. 736. (d) 1 Burr. 38. (b) Sir F. Moore, 682. 1840. DoE dem. ย. custody of the seals, confirmed this certificate; and their decree was affirmed after great consideration in the House of Lords. (a) In Mellish v. Mellish (b) the devise was in these words: "Hamels to go to my daughter C. M. as follows; in case she marries and has a son, to CHARLTON. go to that son; in case she has more than one daughter at her death, or her husband's death, and no son, to go to the eldest daughter; but in case she has but one daughter, or no child at that time, I desire it may go to my brother W. M." In a subsequent part of the will the testator added, "Mrs. P. to receive 200l. a year from C. M. during the life of Mrs. P." On a case sent to the King's Bench by the Lord Chancellor, that court certified" that C. M. took an estate in tail male with a reversion in fee, (she being heir at law,) subject to other estates created by the will." In Chorlton v. Craven (c) the devise was to T. C. during his life, with remainder to his first son in tail male lawfully begotten, severally and successively, and for want of such issue either of his son T. C. and his son J. C., then the testator devised to his daughters and their children share and share alike, to be held to them and their heirs for ever as tenants in common, and not as joint tenants: it was held that T. C. took an estate in tail male. (d) Doe dem. Garrod v. Garrod (e) is a very strong case. There, under a devise to the son of T. G., and to his eldest son, if he had one, but if no son then over, it was held that the son of T. G. took an estate tail male. In Dubber v. Trollop (g), where the testator having five sons, devised the manor of C. to his (a) 3 Brown's P. C. 180.; Toml. ed. under the name of Robinson v. Hicks. (b) 2 B. & C. 520.; 3 D. & R. 804. (c) Cited by Preston, arguendo, in Mellish v. Mellish. (d) In 2 B. & C. 524. it is only stated generally that T. C. (e) 2 B. & Ad. 87. 1840. Doɛ dem. ย. CHARLTON. eldest son William for life, and after his decease, to the first heir male of his body; it was held that William was tenant in tail. Fitzgerald v. Leslie (a) is to the like effect. So in Langley v. Baldwin (b) a testator devised certain lands to A. for life, with power to jointure, and after his death to the first son of A. in tail, and so on to the sixth son only, and then devised that if A. should die without issue male, the land should remain to J. C. It was held that A. took an estate tail, as there was no limitation beyond the sixth son, and there might be a seventh, who was not meant to be excluded. In this case, if Samuel Charlton be not considered as taking an estate in tail male, the gift to the daughters is quite unnecessary, for they would take, as a matter of course, under an estate in tail general. The very devise to the daughters therefore shews that the preceding devise was intended to be an estate in tail male. It is clear that the male issue was to be preferred. [Maule J. It is clear that the sons were to be preferred to the daughters, but that intention would be accomplished by giving Samuel Charlton an estate in tail general.] It is submitted that the true construction of this will is, that he took an estate in tail male, with remainder to his daughters as tenants in common in tail general, with remainder to himself in tail general, nearly approximating to the form of settlement given in 2 Saunders on Uses, 157, 158. Stephen Serjt. in reply. There is no pretence for saying that this testator meant to make a strict settlement. If that had been so, there ought to have been cross remainders among the daughters in order that the whole of the estate might go over at the same time; and (a) 3 Brown's P. C. 154., Toml. ed. (b) 1 Eq. Ca. Abr. 185. pl. 29.; 1 Ves. Sen. 292. ; S. C. cited 1 P. Wms. 759. With the omission of such cross remainders shews clearly It TINDAL C. J. This case, as it appears to me, depends on whether we are authorised to interpret the words which first occur in the will," for want of such issue" to mean, "for want of such issue male;" for if not, we cannot introduce into the devise the estate in tail male contended for on behalf of the defendant. is not denied that the words at the end of the devise, "in case my said kinsman have no issue," are sufficient to give an estate in tail general by implication to Samuel Charlton. That we may see whether the words relied on by the defendant will create an estate in tail male, we must look at the order in which they occur in the will. The testator, after giving life estates to his wife and brother, devises as follows; "and from and after the decease of my said brother, I give &c. the aforesaid messuage, &c., unto my kinsman, Samuel Charlton, of &c. to have and to hold, &c. for and during the term of his natural life; and from and after his decease, I give and bequeath the said messuage, &c. to the eldest son of my said kinsman, Samuel Charlton; but for want of such 1840. DoE dem. v. CHARLTON. |