T. T. 1865. of the estate to which they relate: e. g., Forth v. Chapman (a), Exch. Cham. COLTSMAN บ. where, in a devise over of freeholds and a leasehold, the Lord Chancellor, on appeal, held that, as to the freeholds, the words "die COLTSMAN. without leaving issue" should be construed generally, by which there might be at any time a failure of issue; but with respect to the leaseholds, the same words should be construed to mean "dying without issue living at their death;""ut res magis valeat quam pereat." In Shopfield v. Orrery (b), Lord Hardwicke so far approves of Forth v. Chapman, and added: "I think it very "reasonable to take words in a different sense, with regard to the "different estates, to support the intention of the party; and again, in The Earl of Stafford v. Buckley (c), he adopts Forth v. Chapman as an express authority on the same point. In Peyton v. Lambert (d), Mr. Justice O'Brien says:-"It has been decided in "Forth v. Chapman, and other cases, that where real and personal "estate are devised in the same clauses, and in the same terms, a "different construction may be given to the words 'dying without “issue,' as regards the real estate, from that which is given to them as regards the personal estate." And now, as to the estate of Flesk Castle, the question is, whether the absolute interest given by the will is to be converted into an estate tail. After much fluctuation of opinion, I have reached the conclusion that the true construction of the codicil is, to consider it as indicating the testator's intention that the previous general gift should be reduced to an estate tail. In ar riving at this conclusion, I am not influenced by the argument that the testator intended that the two estates should go together. That argument is put very powerfully by the Chief Baron in the opposite view, but it is a two-edged sword, and therefore fails. The reasoning which has led me to the opinion that the testator intended that his son should take an estate tail in Dicksgrove seems, if well founded, to reach equally the conclusion that his son was to have but a similar limited estate in Flesk Castle. I have felt greatly pressed by the cases of Doe v. Frost, Ex parte Davies, and Parker (a) 1 P. Wms. 663. (b) 3 Atk. 288. (d) 8 Ir. Com. Law Rep. 509. Exch. Cham. COLTSMAN v. v. Birks, which were so strongly relied on for the defendant. But as T. T. 1865. to these cases, it is to be remembered that there was in each of them a devise to the first taker expressly in fee, and then a gift over; and in none of them is the gift over on failure of "heirs COLTSMAN. of the body lawfully begotten." In Parker v. Birks the ViceChancellor repeatedly directs attention to the fact that the first gift was a clear and express gift in fee to Wm. Shaw, his heirs and assigns; the gift over was "in case Wm. Shaw should die without child or children of his body lawfully begotten." The ViceChancellor, after reviewing the authorities with great minuteness, thus concludes :-"It would be a singular construction if I were to "hold that William Shaw, taking this estate in fee-simple, on which "I cannot engraft a remainder, but every limitation over upon "which must be an executory devise, I must first cut down his "estate in fee to an estate tail, in order to enable me to decide that "the gift over is simply a remainder upon such estate tail, created "by the anterior devise. I think, therefore, that I must decide 66 according to the authorities of Doe v. Frost (a) and Ex parte "Davies (b); and, having regard to the clear gift in fee-simple to “William Shaw in this case, that the true construction of this will "is, that he took an estate in fee-simple, subject to an executory "devise over on his death, if he should die without issue. The case "is free from the difficulty felt in Wyld v. Lewis (c), because "William Shaw takes a clear estate in fee, which he can give to "his issue, if he should die without children, but leaving grand"children." In the present case there is no express devise to John Coltsman in fee. There is a gift in which the word "property" occurs, and, if uncontrolled, it is sufficient to pass the whole of the testator's interest; but, when the will and codicil are taken together, it gives way before the expressions "heirs of his body lawfully begotten," and is controlled and limited in its operation. It was observed, in the course of the argument, that no estate tail was created in express terms by the will or codicil; and it was (b) 2 Sim., N. S. 114. (a) 3 B. & Ald. 346. (c) 1 Atk. 432. COLTSMAN บ. T. T. 1865. urged that, by the language of the gift over, the testator intended Exeh. Cham. only to mark out and define a class of his posterity on the failure of which in the lifetime of John Coltsman the estate was to go over. COLTSMAN. If this argument was well founded, it would seem to follow that there was no sufficient ground to imply any increase or diminution of the interest given by the will to John Coltsman. The case would stand thus: devise of Flesk Castle to John Coltsman absolutely, for the whole of testator's interest; and, there being nothing to reduce that devise to an estate tail, the gift over at his death without any heir of his body, should be considered to be an executory devise; devise of Dicksgrove to him for life; the inheritance in fee descending on him as in case of intestacy; the gift over necessarily being a remainder, and defeated by the conveyance of John Coltsman operating to destroy the particular estate on which it rested. The plaintiff's Counsel, in the argument before us, and in the Court below, relied on the rule that, where a contingency is created to depend on an estate of freehold capable of supporting a remainder, it shall be construed to be a contingent remainder, and never an executory devise; but this ceased to be a petitio principii, for the point to arrive at is, whether John Coltsman took an estate in fee or in tail; if in fee, the gift over must fail, if not held to be an executory devise; but, if once we come to the conclusion that he was tenant in tail, then the other consequences follow as of course. Upon the whole, my opinion is that, by the combined effect of the will and codicil, John Coltsman took in both properties an estate tail, and that the gift over was a remainder after the estate tail, which has been defeated by the operation of the disentailing deed. I have come to this determination with great regret, because though it seems to me clear that the testator intended to limit an estate tail to his son and his posterity, yet by such a construction the ultimate object which the testator had in view will be defeated. We cannot, however, suffer our judgment to be affected by the consideration that the law enables a tenant in tail to bar the entail and all remainders over. In my opinion the judgment of the Court of Exchequer should be reversed. 66 HAYES, J. T. T. 1865. COLTSMAN v. The question we have here to solve is, what estate did John Coltsman junior the testator's son, take under the will and codicil of John Coltsman the elder, in the lands of Flesk Castle and Dicks- COLTSMAN. grove? The testator begins his will by saying :-"I give, devise, "and bequeath to my son John Coltsman all those my property, "lands, tenements and premises, at and about Flesk Castle, toge"ther with the live stock on said lands; also my plate, library, pictures, and furniture." It seems to have been agreed by Counsel at both sides that this word "property" has the effect of conveying the whole of the testator's estate and interest in that which is the subject of the devise. No doubt there is a long list of authorities tending to that conclusion; but, bearing in mind the language of Lord Ellenborough, in Roe v. Patteson (a), that "There are no "words of such an inflexible nature as will not bend to the intention "of a testator, when it can be collected from the context of his will," and marking that all the words with which it is associated are used to denote the articles and things which form the subjects of a devise or bequest, rather than the extent or limits of that devise or bequest, I am disposed to think that the expressions used conveyed only a life estate in the Flesk Castle lands. From the absence of all words of inheritance, I infer that a life estate has also been conveyed in the Dicksgrove lands; so that, by this mode of construing the will, and according to the manifest intention of the testator, a similar estate is given in both denominations to his only son and heir, and principal object of his bounty. Such is the effect of the will; it makes, among other things, this provision for his son, and leaves merely a legacy of £100 to his grandson Daniel Cronin. Let us now pass to the codicil, made in four months after, and which he desires shall be taken as a part of his will. The testator thereby directs that "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 devise and direct that my "lands shall, at my son's death, descend and be trans"ferred to my grandson Daniel Cronin, his heirs, executors and T. T. 1865. urged that, by the language of the gift Exch. Cham. COLTSMAN V. only to mark out and define a class of COLTSMAN. If this argument was well four of the interest given by the stand thus: devise of Fle the whole of testator's i heir of his body, s devise of Dicks. scending on hi being a rem, The r Court to de it f .er until or heirs of his Doe v. Frost (a) the Court see, by the ate is to continue in the first al descendants, it will follow that tail." I have said that, in my opiCastle that was given by the will was an ven though the word "property" was held to result would not be different; for I find, in the iroyd, J,, laying it down as clear, that if it appeared sequent limitation that the estate was to go over upon an ite failure of issue, the previous estate in fee given would be averted into an estate tail. The same principle is thus laid down by Shadwell, V. C., in Machell v. Weeding (b), where he says:-"I "consider it to be a settled point, that whether an estate be given "in fee or for life, or generally, without any particular limit as to its "duration, if it be followed by a devise over in case of the devisee "dying without issue, the devisee will take an estate tail." In most of the cases of estate tail by implication, the words used are "issue," rather than "heirs of the body." But that there is no essential difference between the two is plain, from the case of Goodright v. Goodridge (c), where, after a devise to his wife for life, the testator said:"If my son Richard happen to die without heirs of his body, my son John shall enjoy my lands;" and it was there held as undoubted that Richard was tenant in tail. I cannot better close my observations on this part of the codicil than by citing the words of Lord Eldon, when giving judgment in the House of Lords, in the celebrated case of Jesson v. Wright (d), and which have special |