DoE, Lesseelof

BISH,

V.

KEELING.

a school, to which the public at large are invited to send their children, does not fall within the words of the covenant. I think it does; and if so, there is no doubt it falls within the mischief intended to be provided against.

Devise to the use of A., only surviving son of J. S., for life, and to his first and other sons, &c. and for default of such issue to the use of the first, second, and of all and every other son and sons of J. S. lawfully to be begotten, and the heirs male of the body of such first and other sons, with proviso that the said A. and his first and other sons, and also the first and other sons hereafter to be born of the said J. S. should reside at the family house, &c.: Held, that the second son of J. S., born before the date of the will should take upon the death of A. without issue.t

IN ejectment brought to recover possession of several messuages and lands in the parishes of Kintbury and Hungerford, in the county of Berks, tried before Wood, B. at the last Lent assizes for that county, the plaintiff recovered a verdict subject to the opinion of this Court on the following case.

John James being seised in fee of the premises in question by his will duly made and published, dated the 8th day of December, 1768, devised all his manors, messuages, lands, tenements, and hereditaments, and real estates in the counties of Berks and Wilts, unto Sir John Filmer, Sir Thomas Head, and William Blackstone, Esquire, and their heirs, to the use of his wife Alice James for and during the term of her natural life, and from and immediately after her decease, then he devised as follows, "to

† Secus where the intention could be gathered from the will to exclude the son in question. Locke v. Dunlop (C. A. 1887) 39 Ch. D. 387, 56 L. J. Ch. 697, 57 L. T. 157. In this

case STIRLING, J. (39 Ch. D. at p. 399) refers to Doe v. Hallett as a leading authority on the point of construction.-R. C.

and for the use and benefit of William Head, only surviving son of the said Sir Thomas Head, until such time as he shall attain his age of 24 years, (with power to the trustees to let the premises, receive the rents, and lay out the surplus for his benefit, over and above what should be deemed sufficient for his maintenance ;) and after he shall so attain his age of 24 years, then to the use of him the said William Head, for and during the term of his natural life, and after the determination of that estate, to the use of the said Sir John Filmer, Sir Thomas Head, and William Blackstone, and their heirs, for and during the life of the said William *Head, in trust, to preserve the contingent remainders hereinafter limited from being defeated, and immediately after the decease of the said William Head, to the use of the first, second, third and of all and every the other son and sons of the body of the said William Head, lawfully to be begotten, one after the other, according to their priority of birth, and the heirs male of the body of such first and other sons respectively issuing, and for default of such issue, to the use of the first, second, and of all and every other son and sons of the said Sir Thomas Head, lawfully to be begotten, according to priority of birth, and the heirs male of the body of such first and other sons respectively issuing, and for default of such issue, to the use of him the said Sir Thomas Head, for and during the term of his natural life. Then followed similar limitations to the use of James Morgan, John Head, Richard Head, James Head, and Charles Head, respectively for life, remainder to the use of the trustees to preserve contingent remainders, remainder to the use of the first and second and all and every other son and sons of the said James Morgan, John, Richard, James and Charles Head respectively, lawfully to be begotten in the same terms as limited to the sons of William Head, and in default of such issue to the use of his (the testator's) own right heirs. The will then proceeded thus: "Provided always and for preserving the memory of my family, and continuing my said freehold estates in the name of my said family, I do hereby declare my will and intention to be that all and every the person and persons who from and immediately after the decease of my said wife shall, by virtue of the limitations herein before contained, be entitled to

DOE

v.

HALLETT.

[*125]

the immediate estate of freehold in my said manors, lands, tenements, and hereditaments, *shall take and use the surname of James only, and take and bear the coat armour of my family only, and the better to enable him and them so to do, that he and they shall and do within 14 months after he and they shall become so entitled, petition for and endeavour to procure an Act of Parliament for that purpose, and if such person who shall be so entitled as aforesaid, shall not petition for and endeavour to procure such an Act as aforesaid, then my will is that such person so refusing or neglecting the same shall take no benefit by this my will, but that in such case my said manors, lands, tenements, and hereditaments shall go over to the person who by virtue of the limitations herein before contained shall be entitled to the next immediate remainder in the said premises, and who shall take and use the name and arms of James only, and shall and will within 14 months from the time he or they shall become so entitled, petition for and endeavour to procure such an Act as aforesaid, as if such person or persons who shall refuse or neglect to petition for and endeavour to procure such Act as aforesaid were naturally dead. Provided also, that the said William Head and his first and other sons, and also the first and other sons hereafter to be born of the said Sir Thomas Head, and the heirs male of their respective bodies, shall from and immediately after they shall respectively become entitled to my said manors, lands, tenements, and hereditaments, reside and live at my house at Denford aforesaid, and in case he or they shall not reside and live at my said house, then my will is that my said manors, lands, tenements, and hereditaments shall go over to the next person in remainder by virtue of the limitations aforesaid, who will and shall reside and live at my house at Denford."

The testator John James died in the month of January, 1769, leaving his widow Alice, the said Sir Thomas Head, the said William Head, Walter James Head another son of Sir Thomas Head, and the said James Morgan, him surviving.

William Morgan, the father of the said James, died about the latter end of the year 1762.

Sir Thomas Head had had two other sons, both of whom died

some time before the date of the will, and at the date of the will William Head was the eldest surviving son of Sir Thomas Head, and Sir Thomas Head had no son born after the date of the will.

Upon the death of the testator his widow Alice entered upon and enjoyed the estates for her life, and upon her death, which happened in July, 1769, the trustees under the will entered and took the rents and profits according to the directions of the will, for the use of and until the death of William Head, the son of Sir Thomas Head.

William Head took the surname of James in addition to his own names, and died a bachelor under the age of 24 years in February, 1777; and upon his death Walter James Head entered into possession of the estates, and took the surname of James: he is still living, and he and the persons claiming under him have ever since been in possession.

Walter James Head was born in the month of February, 1759, and was personally known to the testator before the date of the will.

Sir Thomas Head died in October, 1779. The said James Morgan died on the 15th of September, 1810, leaving William James otherwise William Morgan, one of the lessors of the plaintiff, his eldest son, and Thomas *James otherwise Morgan, the other lessor of the plaintiff, his second son.

The lessor of the plaintiff, William James otherwise Morgan, was in America at the time of his father's death, and had been resident there for some years: he came to England on the 28th day of February in the year 1811, and he and the other lessor of the plaintiff within 14 months after the death of their father, assumed and have borne the name and arms of James; but without obtaining the King's licence for either of those privileges.

On the 13th of January, 1812, the lessor of the plaintiff William James otherwise Morgan presented a petition to the House of Lords, for leave to bring in a bill to authorize him to take and bear the name and arms of James, in compliance with the proviso contained in the said will, and did obtain leave to bring in such bill; and such bill was brought into the House on

DOE

V.

HALLETT,

[ *128 ]

DOE
V.

HALLETT.

[134]

[ *135 ]

the 22nd day of the said month of January, and was depending in Parliament at the time of the trial of this action.

The case then found that the defendant Hallett was in possession, &c. The question for the opinion of the Court is, whether the plaintiff is entitled to recover. If he is, the verdict is to stand: if not, judgment of nonsuit is to be given: but at the trial, liberty was reserved to either party to turn this case into a special verdict.

[After argument :]

LORD ELLENBOROUGH, Ch. J.:

It would be a matter of the deepest regret if in consequence of the joint effect produced by the blunder of the testator and the neglect of his attorney, we were compelled to put a construction on this will which would defeat the testator's intention, and exclude those whom he meant to make the objects of his bounty. I call it a blunder of the testator, because if he had read over his will with attention before he executed it, he must have perceived that he had misdescribed William Head as the only surviving son of Sir Thomas at the time when another son Walter James, then nine years old, was in being, and as is stated was then personally known to him. It was also a neglect on the part of his attorney in not making inquiries, after such a lapse of time as intervened between the first and second will, whether the state of his family had undergone any alteration. But I disclaim all considerations of this sort in the present instance, and am willing that the conjoint omissions *of the testator and his attorney should have their full legal effect. The will must stand or fall according to the language of it, but I think that language will not upon a fair construction of it, disappoint the intention of the testator. The first mistake is in the description of William Head as the only surviving son. Now he was not the only son, for there was another living of the age of nine years. But how does that mistake affect or control the subsequent limitation? The limitation is to the use of the first, second, and all and every other son and sons, &c., i.e. who at the death of W. Head would become first son. Therefore Walter James is certainly within the com