T. T. 1865. was held there, that the clear purpose of the testator as to the Exch. Cham.

COLTSMAN

V.

COLTSMAN.

accessory will be taken to determine the effect of his devise of the principal. In the case before us, the estates were the principal, and the plate and pictures bequeathed were the accessory. In Byng v. Byng, the principal given was the Quondom Hall estate to Mary Anne Byng and her children; and the accessory was "With "my mansion-house, furniture, plate, books, linen, Archbishop "Cranmer's portrait by Holbein, the Indian cabinet in drawing"room, and striking-watch, and diamond ear-rings and pins, as heir"looms with my estate." And, referring to those words, in giving judgment, Lord Westbury says [p. 176]:-"If there be a clear description of the manner in which the accessory is to be held "and enjoyed, and the accessory is an inseparable incident to the "principal, the light derived from the directions given with regard "to the accessory may with propriety be used for the purpose of clearing the testatrix's intention with regard to the enjoyment of "the principal. It would be manifestly impossible, and repugnant

66

to the intention of the testatrix, that the accessory should be en"joyed in the one way, the principal in another." The application would seem not inapplicable to this case, in which the devise is of the real estate, "together with" the plate, furniture, and library. In Byng v. Byng there was also the circumstance that the devisee was required to take a particular name; and this was much relied on by Lord Cranworth and Lord Kingsdown as indicating intention: and so, in the case before us, the codicil, after providing that the lands and chattels should descend to Daniel Cronin "his heirs, executors and assigns, for ever," requires that the heir, for the time being, shall add the name of "Coltsman" to the name of "Cronin." Is not this an indication of intention to guide and restrict the devolution of the property in a particular way and to a specified person? ? Daniel Cronin was to take the plate and pictures, and he was to assume the name of the testator. The plate and pictures were to pass with the lands, and the name was to be taken by the possessor of both. Do not these circumstances go far to show that the design of the testator in framing his codicil was to put an end, so far as he could, to the uncertainty in which the will left

the destination of the property after the death of John Coltsman the T. T. 1865. younger, if he should die leaving no children, and to leave a specified representative of John Coltsman the elder in the person of his grand

Exch. Cham.

COLTSMAN

v.

son, who should at once retain the family plate, and pictures and COLTSMAN. library, and assume the family name, and so maintain the family's credit and importance in the country, which he could not do without also enjoying the family estates, and occupying the family mansion. These circumstances appear to me to be pregnant and persuasive on the question of intention. There is another, which seems even more So. After providing for the addition of the name of "Coltsman to that of "Cronin," the codicil proceeds :-"Also, if it should "happen that my son John Coltsman die without heirs of his body "lawfully begotten, or to be begotten, in that case, and in default of "such heirs, I do hereby give and assign, out of the moneys I have

at interest, and specified in my said will, the sum of £6000 to my "daughter Mary Godfrey, for her own use and benefit." The testator's view was plainly this, that, whilst he did not think fit to burden his son with this charge of £6000, he might properly secure it to his daughter, in the event of his grandson succeeding to the estates. Now, upon the construction for which the plaintiff contends, when would the £6000 have become payable? If the failure of issue be held to mean a failure of issue generally, and not a failure of issue living at John Coltsman's death, at what period could this bequest be claimed by my Lady Godfrey? On the defendant's construction, the time of its vesting in her was fixed, and was the very time at which reasonably the testator might have wished that vesting to take place. The bequest is considerable and important; and it is hard to conceive that he designed to give such an effect to the will as would disentitle his daughter indefinitely to the enjoyment of his bounty; yet that would seem to be a consequence flowing from the construction which I decline to adopt, unless other distinct and contradictory interpretations be put on the same words in the same clauses. There is another circumstance still, which, though, perhaps, of less account than that to which I have last adverted, should not be altogether overlooked. The testator, contemplating the death of John Coltsman the younger, without children,

COLTSMAN

v. COLTSMAN.

T. T. 1865. authorises him to charge the estates with any reasonable provision, Exch. Cham. to be paid and payable to his wife during her natural life. She is the plaintiff in this action; and it may be worth a thought how far we shall accord with the intention of the testator, in holding his words to have had such an operation that his son was enabled to give away absolutely from his grandson the very property on which he unequivocally declared his purpose to be, that she should only have a life charge, at his son's discretion, and with his own assent. The matters to which I have adverted present, to my mind, accumulated evidence that the general intention to be gathered from all the provisions of the codicil is far from conflicting with the construction which I think should be given to the words "at my son's death," and is in perfect harmony with that construction, and furnishes powerful support to the argument in favour of it. On the whole, therefore, I am of opinion that, both as to Flesk Castle and to Dicksgrove, the true operation of the will and codicil vested the entire estate in Daniel Cronin Coltsman, on the death of John Coltsman the younger without children living at that time. And I have reached this conclusion as to both the denominations, concurring fully with the Lord Chief Baron, in his judgment in the Court of Exchequer, that it is impossible to apply a different rule to Flesk Castle and to Dicksgrove. They are, as there said, differently dealt with by the wording of the will-I think unadvisedly, and against the purpose of the testator; but, when he comes to make his deliberate and final disposition in the codicil, the distinction vanishes, and they are disposed of evidently in the same way, in the same clause, and by the same language. The codicil is incorporated with the will; and, reading them together, I see no possibility of holding that the intention is not clear to do with the one whatever was to be done with the other; and, this being so, and as it is manifest that that intention, if I interpret it aright, cannot be carried out unless the same absolute interest, determinable on the same contingency, was given in both the denominations, it becomes proper to consider whether, even in the absence of express words as to Dicksgrove, there may not be a reasonable and legal ground for implying a gift of more than the life estate, which—and which

Each. Cham,

COLTSMAN v.

COLTSMAN.

only-passed under the will. "The proper and technical mode of T. T. 1865. "limiting an estate in fee-simple," says Mr. Jarman on Wills, "2nd ed., p. 253, "is, to give the property to the devisee and his "heirs, or to him, his heirs and assigns, for ever; but such an estate "may, even under wills made before 1838, be created by any ex"pressions, however informal, which denote the intention." Or, as it was well put, in one of the later cases, in reference to some of the authorities to which I shall immediately refer, "There is no rule of "law which prevents the Court from giving a fee, where no words "of limitation are used, if the intention of the testator to give an "absolute interest can be collected from the other parts of the will." The whole of the observations I have made, as to the general drift and purport of the codicil, come in aid of the construction which would enlarge the life estate in Dicksgrove given by the will, upon the implication arising from its clear expression of an intention in the testator which it might be impossible to carry into effect, if such an enlargement were not to be made. For, a difficulty, which does not seem to have been suggested in the Court of Exchequer, and was not much pressed at the Bar before us, might be deemed to arise on the assumption that, taking the will and codicil together, we could find no ground for holding that John Coltsman the younger took the entire estate in Dicksgrove as well as in Flesk Castle. If he did not, it might be contended that, as he had only a life estate in the first denomination, with a contingent remainder to Daniel Cronin, the reversion remaining in himself, in the circumstances which arose, the interests were merged, the remainder was discharged, and his will took full effect, in disposing at least of Dicksgrove. But this difficulty will be removed, if we can hold that the absolute property went to John Coltsman the younger,-under the will expressly in Flesk Castle, and under the will and codicil, by implication, in Dicksgrove. And the reasoning from intention for that purpose is, I think, sustained by the consideration that, if John Coltsman took a life estate only in Dicksgrove, and if he had died leaving children, there would have been an intestacy in their regard, quoad that denomination; and they would, so far, have been left without provision—a result to be avoided, if that can reasonably be done. But,

COLTSMAN
V.

T. T. 1865. further, the view I am putting as to the enlargement of the life Exch. Cham. estate by implication, appears to me to be sustained by a series of cases which determine that the fee may pass without express words, COLTSMAN. where the devise to one person is followed by a gift absolutely to another, if the devisee should die under the age of twenty-one years. In such circumstances, the first devisee is held to take the fee. I shall only refer to the names of some of those numerous cases, beginning with Purefoy v. Rogers (a), by which this rule of construction is established. That case was followed by Moore v. Heavenan (b); Throgmorton v. Holliday (c); Doe v. Cundall (d); Tuomy v. Barnes (e); Marshall v. Hill (f); Spry v. Bromfield (g); In re English (h). And the rule has been extended from time to time, so that any age may be regarded as well as that of majority; and other contingencies may be contemplated along with that of death-as, of the devisee dying a minor, and without lawful issue: Tuomy v. Barnes. And, finally, it seems to me to have been applied without reference to death under any age at all, and in connection with wholly different circumstances. In Hutchinson v. Stephens (i), in which the testator, Harry Wilkinson, gave all his lands, and the residue of his personalty, to trustees, in trust to the use of his grandson, Henry Tripp, for life, and, after his decease, in trust for the child and children of Henry Tripp, at his or their ages of twenty-one, as tenants in common; but, in case Henry Tripp should happen to die without leaving any lawful issue of his body living at the time of his decease, then to persons whom the will specifies. Upon that devise Lord Langsdale held "that, in the events "which happened, his daughter, and only surviving child, having "died in his lifetime, the personal estate belonged to the personal

66

representative of the daughter, and the real estate vested in her "heir-at-law. The intention of the testator," his Lordship is reported to have said, "appeared to be, to make a provision by way

(a) 2 Saund. 188.

(c) 3 Burr. 1628.

(e) 10 East, 460.

(b) Willes, 142.

(d) 9 East, 400.

(f) 2 M. & S. 608.

(g) 7 M, & W. 541.

(h) 2 Ir. Com. Law Rep. 284.

(i) 1 Keene, 240.