1819.

The Marquis of

against Lord CLINTON.

Purefoy v. Rogers (a), Doe v. Maxey (6), and Sheffeild v. Ratcliffe (c); and, as to the intention of George Earl of CHOLMONDELEY Orford, as expressed in this recital, on which so much stress is laid, it is by no means clear. The case then stands thus. This limitation, although found in a conveyance to uses, must be construed as if in a common law conveyance. If so, then, according to the plain words, and according to the policy of the law which favours the vesting of estates, it must be construed as a limitation to the settlor himself, which by a rule of law is void. The consequence is, that the reversion remained undisposed of by the settlement, and descended on the heirs general of George Earl of Orford.

Copley Serjt., and Preston, for the defendant. This limitation is to such person as should be the heir of Samuel Rolle at the time of the failure of issue of George Earl of Orford. In order to establish that point it is necessary to examine this deed, and to discover the intention of the party. It begins by deducing Lord Orford's pedigree from Theophilus Lord Clinton, through Samuel Rolle; and after reciting that the property in question came to him by the will of Samuel Rolle, and that a recovery had been suffered, proceeds to state that the said George Earl of Orford was willing and desirous that the same premises should continue and remain in the family and blood of the said Samuel Rolle, and then witnesses, that in consideration of the natural love and affection which he bore to his relations, the heirs of Samuel Rolle, and in order that the manors, &c. might remain and continue in the family. (a) 2 Saund. 380.

(b) 12 East, 604.

(c) Hob. 338.

and

and blood of Margaret Countess of Orford, on the

1819.

side or part of her father Samuel Rolle, the said George The Marquis of Earl of Orford did grant, &c. Now nothing can be CHOLMONDELEY against more marked than the intention here. It was obviously Lord CLINTON. his design that this estate, and the title of Clinton, should go together; for the pedigree is deduced, not merely from Samuel Rolle, but through him from Theophilus Lord Clinton. Then the next recital shews that the recovery had defeated that object, by making the estate descendible to his heirs general; and it was to remedy this that the settlement was made. But if by the ultimate limitation to the right heirs of Samuel Rolle, the Court hold that the settlor himself was meant, it would defeat this, which was the only object of the settlement, by still making the heirs general take the estate. It is impossible to suppose that he could have meant to describe himself by that circumlocution. It must, however, be admitted, that it is not sufficient to shew that. The argument must go further, and shew who was meant by that expression. The first step is this; if it did not mean the right heirs of Samuel Rolle, at the time of executing the settlement, it must have meant the right heirs of Samuel Rolle at some future period. Then, if so, at what period? His object was that the estate might remain and continue in the family and blood of Samuel Rolle; and to effectuate that he made the settlement. He first gives himself an estate for life, and he then makes a limitation to his issue. Now during his life and that of his issue the object would still continue accomplished. But after his issue became extinct, the estate would, according to law, have gone to his heirs general; and it was to avoid this consequence that the limitation is introduced.

1819.

against Lord CLINTON.

Then that most distinctly points out the period to be when the settlor and his issue are extinct. It is The Marquis of CHOLMONDELEY then that this remainder is to vest in the individual Who should then be the heir of Samuel Rolle. And the power of appointment reserved by George Earl of Orford is not inconsistent with this idea. But it is said, why may he not have intended the late Lord Clinton as persona designata by this description? That is impossible; for he deduces his own pedigree as eldest son of the only child of Samuel Rolle; and, therefore, he must have known that he was himself the heir. Then reliance is placed on the words "natural love and affection," as being applicable to existing persons only. But what difficulty is there in conceiving that love to existing persons may be well shewn by vesting an estate in their descendants? These are the principal objections which have been made to the clearness of the intention as expressed in the deed; and they do not scem entitled to much weight. If so, the construction consonant to the settlor's intention is this, that the estate was to vest in the person who should be heir of Samuel Rolle at the time of the failure of the issue of the settlor. If the limitation had been worded "to the use of the then right heirs of Samuel Rolle," it would have been quite clear; and the intention supplies that word. On the other side, it must be construed as if it were the now right heirs of Samuel Rolle. Having established this point, the next question will be, whether there is any rule of law which prevents its adoption? It is said, and it must be admitted to be true, that the law favours the vesting of estates; but that is not so where the intention is clearly otherwise. Doe

v. Maxey.

v. Maxey. (a) All instruments must be construed ac-
cording to the intention of the parties. Lord C. J.
Willes, in delivering judgment in the case of Smith, dem.
Dormer, v. Packhurst (b), lays down several maxims as
to the construction of deeds; the first of which is, that
the end and design of the deed should take effect rather
than the contrary. And, again," such construction
should be made as is most agreeable to the intention of
the grantor. The words are not the principal things
in a deed; but the intent and design of the grantor.”
And he adds, that these are the rules laid down by
Plowden, Coke, and Hale, and that the law commends
the astutia of the Judges in construing the words in
such a manner as shall best answer the intent. On
these principles that case was decided. The same
doctrine will be found in Lisle v. Gray (c), where, to
carry the manifest intention of the grantor into effect,
the words "heirs male" were construed as
"sons."
Again, in Moore v. Magrath (d), Lord Mansfield ex-
presses himself to the same effect, and argues there
from the recital, which shews that the argument on the
other side is not correctly founded. Lord Mansfield
calls it the key to the deed. The same rule of con-
struction is found in the Earl of Clanrickard's case (e),
where "those Judges are exceedingly commended who
are curious and almost subtle to invent reasons and
means to make acts according to the just intent of
the parties." And in Ginger, dem. White, v. White (ƒ),
it is said" verba intentioni et non e contra debent
inservire," Wright v. Kemp (g), Hodgson v. Bussey (h),

1819.

The Marquis of
CHOLMONDELEY
Lord CLINTON.

against

1819.

against

and Cartwright v. Wright (a), are to the same effect. And the Judges will, in order to satisfy the The Marquis of CHOLMONDELEY intention, transpose, substitute, and even insert words. Lord CLINTON. In Daran v. Ross (b), Lord Thurlow construed the word "her" as "his," and intimated, that if he could clearly see the party's intention, he would substitute one word for another. The case of Watson v. Foron (c) arose on a will, but the others are all cases of common law conveyances. There is, therefore, no necessity for resorting to the argument that this a deed to uses. In some respects, however, it is clear, that a conveyance to uses is construed differently from a common law conveyance. As, for instance, Swain v. Barton (d), a man may there limit to the use of his own right heirs, and the limitation will not be void, as in a common law conveyance. But it is said, the word heirs is too strong, and not capable of qualification. Burchett v. Durdant (e), James v. Richardson (f) Lisle v. Gray (g), Peacock v. Spooner (h), Dafforne v. Goodman (i), Darbison v. Beaumont (k), and Goodwright v. White (1), are, however, cases to the contrary, and shew, that it may be qualified by the intention apparent on the face of the deed. The strongest cases on this point are Cranmer's case (m), and Spark v. Spark. (n) In the former, a reversioner in fee of a lessee for term of years, granted the reversion in fee by deed, to the use of the grantor himself for life, and after his death to

.

the executors of the grantor.

And it was held, that

the executors took as purchasers. In the latter, where