The testator then devised other lands to his then wife and grand. H. T. 1846. Queen's Bench. sons in the same strict settlement, giving to every tenant for life a like leasing power, and to each grandson a power to jointure and charge for younger children. The case further stated that on the 16th of May 1807, testator executed a codicil ratifying and confirming all these devises, but altering the disposition therein made of his personal estate. That in May 1807 Lady Anne Daly, testator's first wife, died, and on or about the 30th day of November 1807, testator married again, and by indenture of settlement of 7th day of October 1808, pursuant to previous articles, which settlement was duly registered, he conveyed to trustees the lands of Kilcooley and Poliny, to secure a jointure of £300 a-year to his said second wife, with the usual powers of distress and entry; and said indenture contained a demise for the term of one hundred years of said lands for the better securing said jointure. On the 15th of October 1808, testator made a second codicil in these terms :-"I, Michael Daly, of, &c., do by this codicil to my last "will and testament, revoke any bequest or devise to my son Hyacinth "Daly by any former will or codicil; and I devise to my son Hya"cinth Daly, for and during the term of his natural life, subject to "the annuity to my wife Mary Daly, otherwise Tilly, all my lands "of Kilcooley and Poliny, in the county of Galway; and in case the "said Hyacinth Daly shall forfeit or surrender said life estate, then "I devise said lands to Malachy Daly and his heirs during the life of "said Hyacinth Daly, in order to protect the contingent uses from "being destroyed; and from and after the death of said Hyacinth "Daly, then to the first son of said Hyacinth Daly, and the heirs of "his body; and in default thereof, to the second, third and every "other son of said Hyacinth, and the heirs of his body, the eldest to "be always preferred; and for default of such heirs, to my grandson "Michael Daly, son of my eldest son Arthur Henry Daly, and his "heirs and assigns. I direct that this codicil may, with any other "codicil executed by me, be taken as annexed to and making part of "my last will and testament." The testator died on the 30th of October 1808, without revoking said codicil. Upon this case the question for the Court was, "Whether upon "the true construction of the will of Michael Daly, bearing date "20th September 1802, the codicils dated 16th May 1807 and 15th "October 1808, the term of five hundred years mentioned in the "will of 20th September 1802, be a subsisting term ?" A. Vance, with Napier, for the plaintiffs. The first codicil only refers to the personalty; it is therefore on DALY ບ. DALY. DALY บ. DALY. 66 H. T. 1846. the second codicil that the question depends, whether the term of Queen's Bench. five hundred years, created by the will, be subsisting or gone. The will is revoked by the settlement so far as Kilcooley and Poliny are affected; but it was again set up by the codicil, the testator having declared his intention that it should be part of it: Jackson v. Hurlock (a). It is said that it contains limitations of Kilcooley and Poliny quite inconsistent with the nature of the term being a subsisting one; but this must depend on the question of intention : and first, we contend Michael Daly never intended to revoke the term; and second, that the limitations in the will and codicil are easily reconcileable. The rule of construction is laid down in Lane v. Lord Stanhope (b), where Lord Kenyon says:-"It is our duty, "in construing a will, to give effect to the devisor's intention, as far as we can consistently with the rules of law, not conjecturing, but "expounding his will from the words used;" and so in Doe d. Hearle v. Hicks (c) Tindal, C. J., observes :-"If such devise in the "will is clear, it is incumbent on those who contend it is not to take "effect by reason of a revocation in the codicil, to show that the "intention to revoke is equally clear and free from doubt as the 'original intention to devise. For if there is only a reasonable doubt "whether the clause of revocation was intended to include the par"ticular devise, then such devise ought undoubtedly to stand." The codicil must be exclusively referred to a change in the circumstances of the testator: Coward v. Marshal (d); he did not thereby intend to change his intentions towards Hyacinth, having given him back the estate; it was merely made to republish the will which had been revoked by the settlement on his second wife. 66 in Suppose the testator, instead of a term of years, had devised a sum gross, would it be contended the sum was revoked by the codicil? Gore v. Gore (e). P. Blake, with Pigot, contra. In Coward v. Marshal there was a limited intention; and in the case from 8 Bing, the testator in the codicil had used the words "revoking and making void several of the dispositions theretofore made by him in his will and codicils;" showing that it was manifestly the intention not to revoke all the devises. On the face of this codicil, however, there is evidence that the testator revoked the (a) 2 Eden. 263. (b) 6 Term Rep. 352. (c) 8 Bing. 480. (d) 2 Cro. Eliz. 721. (e) 8 Vin. Abrid. 370. DALY บ. DALY. prior devise and made a new disposition of the property, and that H. T. 1846. Queen's Bench. he intended to affect the whole line of limitations to Hyacinth: Phillips v. Allen (a); Murray v. Johnston (b). By the will the eldest son took an estate tail male, by the codicil an estate tail general; there is not a limitation left that was given by the will; there was a revocation by the settlement, and no republication by the codicil; and if the codicil stood alone, the limitations in it are so inconsistent with those in the will that it would, of itself, operate as a revocation of it. If this term of five hundred years be set up, who would be the reversioner under it? The termor himself.[PERRIN, J. Are you at liberty to assume a jointuring power does not exist; does not the leasing power belong to Hyacinth Daly? CRAMPTON, J. Under the will and codicil altogether, is there any estate to Michael Daly after the estate of Hyacinth Daly?—It is impossible that there could; for an estate in fee is given. By the deed of settlement a term of years is raised to secure the jointure, and the jointure is limited to the two lands of Kilcooley and Poliny exclusively. Napier, in reply. The codicil deals with the will as a subsisting disposition; and the The Judges returned the following certificates:-- (a) 7 Sim. 446. (c) 1 Cro, Eliz. 9. (e) 2 M. & Sel. 14. (g) 1 Ves. sen. 186. (i) Plowd. 523. () 1 Atk. 419. (b) 3 Dr. & War. 147. (d) 1 Mees. & Wels. 662. (h) 6 Man. & Grain. 813. DALY H. T. 1846. "(now absent, from indisposition), and we are of opinion that upon Queen's Bench. "the true construction of the will of Michael Daly, bearing date the "20th of September 1802, the codicils dated 16th May 1807 and "15th October 1808, and the indenture of the 7th of October 1808, "the term of five hundred years mentioned in the will of the 20th "September 1802 is not a subsisting term. บ. DALY. "Dated this 28th day of May 1846. "CHARLES BURTON, "By the will of 1802 the testator devised Kilcooley, Carranduff "and Poliny, to Bowes Daly and James Kirwan, to the use of his "son Hyacinth for life, remainder to preserve contingent remainders, "remainder, from the death of Hyacinth, to Malachy Donnellan "and Malachy Daly for five hundred years, to raise £2000 for younger "children or daughters of Hyacinth, and subject thereto, remainder "to his first and other sons in tail male, remainders to grandson "Michael for life; remainder to his first and other sons in tail male; "remainder to Arthur and his first and other sons in like manner; "remainder in like manner to Henry and his first and other sons in "tail male, remainder to testator's daughter Anne Eyre in fee; he "gives powers to lease and jointure to Hyacinth, Michael, Arthur "and Henry, when respectively in enjoyment of the demised "premises; and he gives Michael, Arthur and Henry powers to "charge £2000 for younger children, omitting Hyacinth, for whom it was unnecessary by reason of the term of five hundred years for that "purpose; he then devised other estates to his wife and grandsons in "the same strict settlement, giving to every tenant for life a like "leasing power, to each grandson a power to jointure and charge for "younger children. In May 1807 he executes a codicil ratifying "and confirming all these devises, about the time of his first wife's "death. In November following he married again, and in October "1808 he conveys the lands of Kilcooley and Poliny to secure a "jointure of £300 a-year to his wife, one effect of which was to revoke "the devise thercof and leave Hyacinth unprovided for. In the same "month of October he executes another codicil, in terms revoking "any bequest or devise by any former will or codicil to Hyacinth, "and devises to him for life (subject to the annuity or jointure of his "wife) Kilcooley and Poliny, remainder to Malachy Daly to protect "contingent remainders, remainder to the first and other sons of 'Hyacinth in tail, remainder to his grandson Michael in fee, directing "that this and any other codicil shall be taken as annexed to and "forming part of his will. 66 "He thus republishes that will as of that date, save so far as 66 DALY บ. DALY. "it is by that codicil altered. The provisions of that will and H. T. 1846. "its disposition are to stand, save where those of the codicil Queen's Bench. "are contrary and manifestly inconsistent; the codicil may operate "as a partial revocation only; by the codicil he excludes Carran"duff; he gives Kilcooley and Poliny, but charged with £300 per "annum. He substitutes Malachy Daly, the trustee of the term of "five hundred years for Bowes Daly and Kirwan, as trustee to pre"serve contingent remainders; he omits the term of five hundred years "and the leasing and jointuring powers, and he limits the remainder "to Michael in fee. Does this show a clear intention to annul the 'provisions for younger children, and the leasing and jointuring 'powers so carefully given to Hyacinth, as well as to any other "tenant for life, in the will which he then republishes, with the "substitution and alteration of the codicil annexed to and forming "part thereof, provisions so carefully and sedulously made and "repeated throughout that will? Nay, is it probable that he had "changed his mind on those matters, in regard to Hyacinth's family "and estate, and intended to take away the power to raise portions "for younger children, and to lease and jointure as to it, retaining "them as to every other devisee? No reason is suggested why he "should make such a distinction; so that could not be the object of "the codicil, but to provide for the altered state of things by his "marriage settlement, which revoked the devise to Hyacinth and "induced the re-publication of the will with the alteration he deemed 'necessary. I find it difficult to presume that he intended to annul "this term and these provisions, not expressing such intention, "provisions so consistent with his probable intentions and habitual "views. It does not appear to me that the general words 'I revoke "any former devise to Hyacinth,' connected as they are and must "be with what follows, can have the absolute and unqualified effect "they would have had standing alone; but I revoke and substitute "Kilcooley and Poliny, charged as they are for myself, for "Kilcooley and Poliny to him for life, remainder to his first and "other sons in tail, remainder to Michael in fee, and I annex this "to and make it part of my will of 1802, which in all other respects "I re-publish,'-that, in my mind, leaves the provisions and 'powers which he thought wise and necessary, for the younger "children and daughters of Hyacinth, untouched, and continues them "effective, as to the substituted and, by the codicil, devised lands. I "do not think Murray v. Johnston bears on this case. I am "therefore of opinion that the term of five hundred years is a "subsisting term as regards the lands of Kilcooley and Poliny. 66 "L. PERRIN." |