1819. MEYRICK and others against WHISHAW and others. which they are to have effect. The word "and" preceding the words "as to the children dying without issue under twenty-one,” may be construed disjunctively, or if taken literally, then there are two cases made, of which the present case is one, in either of which the crossremainders are to take place. It is true that the settlor goes on to state a particular case, which is, the dying under age and without issue, and which is according to this construction, included in the general words" for default of such issue;" but he has only mentioned that as the case most likely to happen, having previously used words comprehending any default of issue. The instance put thus unnecessarily should not be construed so as to control and defeat the prior general words. The construction contended for by the plaintiff only assumes a redundancy of expression, but does not contradict any part of the deed; the other which confines the cross-remainders to the children dying under age and without issue, contradicts the ultimate limitation, as well as the words "for default of such issue" preceding the limitation of cross-remainders. If words are doubtful the intention should prevail. It is also a rule of construction that a deed is to be taken most strongly against the grantor, Shep. Touch. 87. Bacon Abr. tit. Grant, 393. It would be difficult to assign a reason for a moiety of the estate going away from the surviving child in the case that has happened. When the first child was born the whole estate tail vested in that child, subject to be divested or opened on the birth of another; but this was with a view to the advantage of that other. that the surviving child should suffer in case the other child died without issue; and the dying before or after Now it could not be intended twenty twenty-one makes no difference as to the intention in ance. 1819. MEYRICK and others against WHISHAW and others. Lord Kenyon states, that Sugden contrà. It is a well established rule, that cross-remainders, are not to be raised by implication in a deed. Nevell v. Nevell (b), and Cole v. Levingston (c). In Doe v. Wainewright. (d) the deed contained express limitations by way of crossremainders. Here there are no words expressly creating general cross-remainders. Doe v. Dorvell (e) is a clear authority applicable to this very case. There a grandfather, after the marriage of his son B., who had two children then living, conveyed lands to trustees to the use of himself for life, remainder to B. for life; remainder to trustees, &c., remainder to the use of such child or children of B., and in such shares, &c. as B. should appoint, and in default of such appointment, "to the use of all and every the children of B. and the heirs of their several and respective bodies as tenants in common, but if only one such child, to the (a) 17 Ves. 74. (b) 1 Roll. Abr. 857. (e) 5 T. R. 518. (c) 1 Ventris. 224. use 1819. MEYRICK and others against WHISHAW and others. use of such only child and the heirs of his or her body;" remainder to the right heirs of A. in fec. Then A. conveyed the reversion in fee to C. Afterwards B. had other children and died without appointing. Held that B.'s children took vested interests in tail, and that upon the death of each child without issue, his share fell into the reversion conveyed to C. In Doe v. Worsley (a), the limitation was to all and every the daughter and daughters to be begotten, share and share alike, equally to be divided between them, and the heirs of the body or bodies of all and every such daughter and daughters, and for default of such issue to the right heirs, it was held that there were no cross-remainders between the daughters and their issue, and Lord Kenyon in that case regrets that the rule of construction applicable to deeds, that cross-remainders could not be raised by implication, did not also take effect in the case of wills. The intention of the settlor here is in favour of this construction; if a child died before he could bar the entail, his share is to go to the other children; but if he died after he could bar the entail, and did not settle it on them, his share was to revert to the father. The gifts over to the children and the father are mixed up together; the words "for default of such issue," apply to the father, and the subsequent words to the children; but there is no gift over to the children, except as to the share of a child dying before he attain the age of twenty-one years. Then again the words "in case all such children shall die without issue," apply to the father, and give him the shares which may have survived to any of the children; upon (a) 1 East, 416. their deaths without issue. It is a general rule that full effect should be given to all the words contained in a deed. Now by the construction contended for, the words "before he or they shall attain the age of twenty-one years," must be struck out. Cur. adv. vult. The following certificate was afterwards sent. This case has been argued before us by counsel. We have considered it, and are of opinion that under the limitations of this settlement, the said Mary Anne Meyrick, upon the death of the said Luke Whishaw took no estate in the moiety of the freehold premises to which the said Luke Whishaw was entitled at the time of his death. C. ABBOTT. J. BAYLEY. G. S. HOLROYD. W. D. BEST. 1819. MEYRICK and others against WHISHAW and others. REGULA GENERALIS. Trinity Term, 59th Geo. III. It is ordered, that from and after the last day of person shall this term, every notice for justifying bail in be served before eleven o'clock in the forenoon of the day on which according to the present practice such notice ought to be served; except in case of an order of the Court for further time, in which case it shall be sufficient to serve the notice before three o'clock in the afternoon of the day on which such order shall be granted; and in all the cases aforesaid, the affidavit of service shall specify the time of day at which such notice shall have been served. By the COURT. END OF TRINITY TERM. |