1805.

GOODTITLE, on the Demise of DANIEL, against Monday,

MILES.

May 27th.

sessed of lands

N ejectment for a messuage and lands in the parish of A. being posLedbury, in the county of Hereford, tried at Hereford at L. which had Summer Assizes, 1804, a verdict was found for the plaintiff been settled on for three-fourths of the premisses, subject to the opinion of himself for life, the Court, on the following case:

his marriage ou

remainder to

his wife for life

remainder to

with reversion

ing other lands.

settled to the same uses (ex

cept a coppice, part of Q. of

some other

of

eised in fee)

* By indentures of lease and release, dated the 1st and 2d for her jointure, of April, 1709, made previously, and in order to the marriage the heirs of of John Morton the Younger, of Callow Hill, with Joanna their bodies, Charlett; the premisses in question, which had been pur- in fee to himchased by and then belonging to the father of the said John self; and havMorton, with other lands, part freehold and part copyhold, at P. and Q. were limited to the father of the said John Morton until the marriage, and after the marriage to the use of him the said J. Morton for life, remainder to the use of J. Charlett for which coppice life for her jointure, and after the decease of the survivor of as well as J. M. and J. C. then to the use of the heirs of the body of lands he was the said J. C. by the said J. M. lawfully to be begotten, after the death and for want or in default of such issue, then to the use of of his wife, and having only two the right heirs and assigns of the said J. M. for ever. The said J. M. was the eldest son of his father. By the same indenture of release, a messuage and lands therein particularly described, situate in the several parishes of Pixley and by name, and Aylton, in the said county of Hereford (of which a coppice all other his called Shortcroft, and the soil thereof, in the parish of hold, and leaseAylton, constituted part) were conveyed to the following uses, viz. as to the whole (except the said coppice) to the same uses as the premisses in question are above mentioned

daughters living, devised to

his daughter J.

in tail his un

settled estates

freehold, copy

hold lands,

which he was possessed of or

entitled to, and

which were not settled in jointure on his late

wife (except the coppice, which he directed should always be held with his estate at P.) she, his said daughter, and the heirs of her body, paying out of all the aforesaid lands a certain annuity unto his other daughter A. M. for life and in case his said daughter J. should die and leave no issue, then to his other daughter A. M. for life, remainder to her children, charged, &c. remainder to his nephew in fee. Held, that the reversion of the settled lands did not pass by the will, but were excepted out of the general clause by force of the restrictive words, and which are not settled in jointure," &c. not only by the natural import of those words, but because of the incongruity of imputing to the devisor an intention of devising estates tail and for life to his daughters in lands which were before settled on them in tail general; though it did not appear that the testator had any other real estate on which the general clause could operate, except the reversion of his settled lands.

to *[ 495 ]

1805.

GOODTITLE ex dem. DANIEL against MILES.

E 496 ]

to be conveyed and settled: and as to the said coppice, the same expectant on the marriage was limited unto and to the use of the said J. M. his heirs and assigns for ever. The marriage took effect, and the said Joanna died in Nov. 1738, leaving by her husband the said J. M. who survived her, four daughters, and no son, viz. Judith, Joanna, Anna Margaretta, and Rebecca. Judith, the eldest of the said daughters, intermarried with W. Skynner in the year 1740; and by the settlement made on this marriage, in which the said J. M. her father joined, the reversion in fee of him the said J. M. of M. of and in the undivided fourth part or share of which the said Judith was seised as tenant in tail in remainder of and in (inter alia) the premisses in question; (subject to certain precedent estates now expired) was con veyed to the use of the said W. Skynner, his heirs, &c. After making the said settlement, Joanna and Rebecca Morton, two of the said four daughters, died without issue in the lifetime of their father; and Anna Margaretta intermarrjed with one H. Jones. J. Morton being seised of the rever sion in fee of and in three undivided fourth parts of the same premisses, expectant on the determination of the estate tail in remainder, then vested in his said two surviving daughters, and being also seised of the following heredita ments, viz. the said coppice in the parish of Aylton, and a cottage and lands called Brockington, in the parish of Muns ley; a messuage, farm, and lands called Ketosop, in the parish of Avenbury, in the county of Hereford, and of and in the moiety of a messuage and garden called Tower Hill, in Bromyard in the same county; he (J. Morton) duly made and executed his last will in writing, dated 12th of January, 1750, whereby, after giving his daughter Anno Margaretta Jones 10l. to buy her mourning, 20s. to the poor of the parish of Munsley aforesaid, 10s. each to the poor of the parishes of Aylton and Pixley, and other sums to the poor of other parishes, the will proceeded as follows: "Item, I give and devise to my daughter Judith Skynner, and to her heirs and assigns for ever, all that my cottage, with the lands, &c. called Brockington, in the parish of Munsley, upon trust, that she and they shall yearly for ever buy four garments, &c. of the value of about 10s. or 12s. and give the same to the most deserving poor persons of Munsley

1805.

GOODTITLE

ex dem. DANIEL against MILES.

Munsley yearly. And I further give and devise unto my said daughter Judith Skynner, and to the heirs of her body lawfully begotten or to be begotten, all that my messuage, lands, &c. called Kewsop, in the parish of Avenbury, charged and chargeable with the payment of 20s. a-year to the poor of Avenbury and Munsley for ever: and also all that moiety or *[497] half part, undivided, of a meseuage and garden called TowerHill, in Bromyard, in the county of Hereford; and all other my freehold, copyhold, and leasehold lands and houses, &c. whatsoever and wheresover, which I shall be possessed of or anywise entitled unto at the time of my decease, and WHICH ARE NOT SETTLED IN JOINTURE ON MY LATE DEAR WIFE, except the coppice at Aylton, which I will and direct shail always go and be held with my estate at Pixley, in the same manner as that estate is settled; she, my daughter Judith, and the heirs of her body, paying out of all the aforesaid lands unto her sister, my said daughter Anna Margaretta Jones, the clear sum of 15. yearly during her natural life (the same to be paid to her own separate use); and in case my said daughter Judith shall happen to die and leave no issue of her body, then I give and devise all and singular the aforesaid premisses with their appurtenances to my said daughter Jones for life; and after her decease then to the child and children of my daughter A. M. Jones as shall be then living, charged and chargable as aforesaid. And for want of such issue, then I give and devise the premisses to my nephew Mr. Francis Morton, and to his heirs, &c. charged and chargeable as aforesaid; and also paying thereout to his brother Mr. John Morton the sum of 51. And I give and bequeath all the arrears of rent which shall happen to be due to me from my tenant, at Callow Hill at my death to my said two daughters: and I further give and bequeath unto my said daughter Judith Skynner, her heirs and assigns, all mortgages made to me in fee or for term of years, and all and singular other the rest and residue of my goods, chattels, and personal estate of what nature or kind soever, which I shall be possessed of or entitled to at the time of my deccase, after payment of my debts, legacies, and funeral expences." And he appointed his daughter Judith Skynner sole executrix of his will. The estate at Pixley and the coppice at Aylton, mentioned in the will, are the same as

are

[498]

1805.

GOODTITLE ex dem. DANIEL against MILES.

[ 499 ]

are mentioned in the settlement of 1709. The testator John Morton died 17th of June, 1751, without revoking or altering his will. Judith, his eldest daughter, survived her bus band Wm. Skynner, and married the Rev. Wm. C. Hopton, and died in Dec. 1784, without ever having had issue. Anna Margaretta, the other daughter of John Morton, who survived her father, outlived, her husband H. Jones, and afterwards married H. Durbin, and died in October, 1799, without ever having had issue. Francis Morton, the nephew and devisee in remainder in the will of John Morton, died in August, 1762, intestate, and without issue, leaving two brothers, the Rev. J. Morton, of Redmarley, and W. Morton him surviving. John Marton, of Redmarley, the eldest brother, and heir at law of Francis Morton, died intestate, and without issue, in March, 1789, leaving Wm. Morton, his only brother and heir at law, him surviving Wm. Morton devised to the lessor of the plaintiff, and died on the 2d day of May, 1784; and on the trial a verdict was found for the plaintiff, subject to the opinion of the Court of King's Bench, upon this question, "Whether the reversion in fee in three undivided four parts of the premisses in questior, passed by the will of John Morton the settlor, or descended upon his death to his said two, then surviving daughters Judith and Anna Margaretta?”

The case was argued on a former day in the term by Dauncey for the plaintiff, and Abbott for the defendant, The argument turning on the meaning of the words "and not settled in jointure on my late wife," whether restrictive or not, and upon the apparent intention of the devisor to be collected from the whole of the will together, it is unneces sary to detail it, particularly as the cases most applica ble to the subject were referred to by the Court in giving judgment. On this day

Lord ELLENBOROUGH, C. J. delivered judgment.

The question reserved for the opinion of the Court rests upon this consideration, Whether sufficient appears in this will to shew that the intention of the testator was that the general words relied on by the lessor of the plaintiff should not extend to and comprehend the reversion of the estates settled upon his marriage; for if they be unrestrained, it cannot be contended that they are not sufficient to carry

the

1805.

ex dem. DANIEL

against

MILES.

the reversion; and, on the other hand, there cannot be any doubt but that they may be restrained, either by expressions GooDTITLE directly controlling them, or by the clear intention of the testator, to be collected from the whole of the will. The words "not settled in jointure upon my late wife," are those relied on as having the effect of controlling the generality of the words made use of by the testator, and of excluding them from passing the reversion of the settled lands. And we think in this case they have that effect; upon comparing the provisions and limitations of the will with those of the settlement made on the testator's marriage, and considering the state of his family when the will was made. The lands in question were, on the marriage of the devisor, settled on himself for life, with remainder to his wife for life for her jointure, with remainder to the heirs of the body [500] of the wife by the devisor begotten, remainder to his own right heirs. At the time of making the will the wife was dead, and he had only two daughters living, who, under the settlement, had in these lands a vested remainder in tail general, expectant on the determination of a life estate in the devisor. Under these circumstances the devisor had no interest which could be the object of any disposition to be made by him, but subject to the remainder in tail general in his daughters; nor had he any thing upon which his will could operate in the limitation of any estate in possession until both the daughters should be dead without issue: and therefore if the testator's object was, as according to the provisions of the will it must have been, to limit estates, which were to take effect during his daughters' lives, it is impossible to suppose the testator could mean that his will should extend to lands, in respect of which he must have known that it could not operate to create the estates intended. In the particular lands which he meant to be the subject of the devise, he intended to give his daughter Judith an estate tail; but such estate it was impossible to carve out of the reversion, as the lessor of the plaintiff contends; for so long as there was a possibility of her having heirs of her body, she must have had a prior estate of as high and of as durable a nature under the settlement itself; and when that possibility ceased, both she and all those who under this deVOL. VI.

Cc

vise