Lord Denman's judg

ment in Doe v. Gallini.

the court, after much consideration, was that the testator's children. took estates for life, with remainder to their respective children in tail, with cross-remainders in tail between the grandchildren, with remainder in tail to the parent (i. e., the testator's children.) Lord Denman, C. J., after some prefatory remarks, said, "The argument founded upon the whole will is, that the testator means the estate left to each of his sons and daughters to go to the whole line of issue of those sons and daughters respectively, and only on failure of the whole line of issue to go over, and this on account of the use of the term 'issue' of the sons and daughters, which word 'issue' is here to be construed (as it generally is) a word of limitation, and equivalent to the term 'heirs of the body,' and as embracing the whole line of lineal descendants; and therefore it is contended that each son and daughter took an estate tail in the portion left to him. But if the term 'issue' is here a word of limitation, why is it not equally so in the part in which the estate is given over to the surviving children of the sons and daughters, if any of them shall die without leaving issue? *From which it is clear, that the testator does not mean the survivors to take till failure of all the issue of the deceased childIf the term 'issue' has here the same meaning, then the children living at the time of the death of the sons and daughters respectively must take estates tail as tenants in common in their respective shares, with cross-remainders either for life or in tail (which it is unnecessary to decide), with remainder to the sons and daughters in tail in their respective shares, and remainders over; and this construction makes the least sacrifice of the testator's declared intention; it preserves estates to all his grandchildren living at the death of his sons and daughters as tenants in common, which, it is clear, the testator intended to give; and it also includes the descendants of a grandchild dying in the son's or daughter's lifetime, (y) though the estate to them is postponed to that of the children; and it includes all the issue of each son and daughter before the estate goes over. The estate tail in the sons and daughters takes effect not in derogation of, but by way of remainder on, the express estates given to the children of the sons and daughters, in which respect it resembles the case of Doe d. Bean v. Halley (z) It is true that these grand

Implication of remainder in tail.

ren.

[(y) To include these descendants may be considered to have been the principal object of giving the parents an estate tail in remainder, and distinguishes this case

from Blackborn v. Edgley, 1 P. W. 605, ante p. *461.]

(z) 8 T. R. 5.

children cannot take estates for life as the testator intended, for the rule in Shelley's Case prevents it; (a) nor the children of those children estates for life as tenants' in common, for the rule of law against perpetuities prevents that; but this is unavoidable, and no construction can carry into effect all the testator wished."

Tindal, C. J.,

A writ of error was brought in the Exchequer Chamber, and the decision of the Court of K. B. was there unanimously affirmed. The reasoning of Tindal, C. J., (who delivered the affirming judgment) bears a close resemblance to that of Lord Denman in the court below. After reading the concluding passage in the will above Judgment of stated, the C. J. said,-"The words, undoubtedly, if they in Gallini v. had occurred without any intervening devise to the grand- Doe. children, would have been sufficient to create immediate estates tail. But there has been in the foregoing part of the will not only an express devise to the grandchildren for life, but also words sufficient to enlarge such estates for life in the grandchildren into estates tail. Admitting, therefore, the argument of the plaintiff's counsel to be just, that, if we give to the words 'failure of issue,' when applied to the grandchildren surviving, the force of enlarging their estates for life into an estate tail, we ought to give the same effect to the same words at the end of the devise, when applied to the children of the testator, and, consequently, their estates for life must be similarly enlarged; still the question arises, whether such estate tail in the sons and daughters of the testator is immediate, or whether it is not to be postponed until after the estate tail in the children of such sons and daughters has taken effect? If we consider the clause of the will last referred to as giving an immediate estate tail to the children, the previous devise to the grandchildren as tenants in common in tail is defeated: whereas, if we hold the devise to the children of the testator to be an estate in tail, but to be a devise in remainder only, in that case the limitation for life to the children will take effect, and the devise to the grandchildren as tenants in common in tail, in remainder; and the general remainder over, to the children of the testator in tail, will also take effect, and will effectually secure the descent of the property in the line of the testator's family, as long (to use the testator's own expression in his will) as there shall be any stock or offspring of the testator remaining.""

(a) I. e., the grandchildren could not take a life estate only, consistently with the intention that the estate should de

volve to the issue or heirs of the body of such grandchildren.

Remarks on
Doe v. Gallini.

These cases would seem to lay down the sound and reasonable rule, that where an estate is devised to a person for life, with remainder to his children, or to his sons or daughters, with a devise over on the failure of the issue of the devisee for life, and the latter words are held to create an estate tail in the parent (but which they will do only under a will which is subject to the old law), (b) the devise to the children, sons or daughters, is not unnecessarily and wantonly sacrificed to this object; but the parent, i. e., the devisee for life, takes an estate tail in remainder, expectant on the determination of the prior estates of his children, sons or daughters (as the case may be.) And there seems to be no reason why this construction should not prevail as well where the prior devise to the children's sons or daughters confers estates tail in remainder, expectant on the parent's life estate, as where those devisees take estates for life, unless Bamfield v. Popham, Blackborn v. Edgley [and Baker v. Tucker] should be considered conclusive against such a construction. Indeed, in *Doe v. Gallini the children of the testator's sons and daughters were held to take estates tail in the first instance, with remainder in tail to the sons and daughters; as, notwithstanding the apparent restriction of the estates of such issue to life estates, they were held to take estates tail by force of the word "issue," as a word of limitation, strongly aided by the context.

Remark upon

son.

[These cases show that in Doe v. Hopkinson (b) the court might have escaped the inconsistencies to which they adverted, withDoe v. Hopkin- out doing violence to the express words of contingency contained in the gift to the children, by reading the limitation thus: to the ancestor for life, with contingent remainder in fee to his children living at his death, with alternative contingent remainder to the ancestor in tail, with remainder over.

Implication of

in tail.

In Andrew v. Andrew, (c) where the devise was to T. for life, remainder in fee to his eldest son when he attained executory devise twenty-one, and "in default of A having a son," over; an estate tail in the parent was implied from the gift over, to take effect by way of executory devise if the eldest son (whose estate was held to be vested) should die under age.]

III.—3. An examination of the preceding cases will suffice to show

[(b) But see ch. XLI., ad fin. (b) 5 Q. B. 223, ante p. *469.

(c) 1 Ch. D. 410, ante vol. I., p. *815.]

how numerous, and, in some instances, how refined, are

General re

ceding cases.

the distinctions upon which the construction of words im- marks on preporting a failure of issue depends. They cannot, it is conceived, but suggest the wish, that these words had been more strictly confined to the office of merely connecting the two limitations between which they are interposed: and that whenever the preceding devise embraced any class of issue, they had been considered as referential to those objects, which is the established rule in regard to the expression such issue. The application of this rule to the cases under Consideration would have required only the implication of the word "such." Though, in the state of the authorities, it may seem dangerous to advance any general conclusions upon the subject, the writer ventures to submit the following propositions, as deducible from the cases; in framing which, to avoid the risk of misleading the reader, he has cautiously adhered to the circumstances of the several cases, without extending his propositions to others apparently within the scope of the principle.

1st. That the words, in default of issue, or expressions of a similar import, following a devise to children in fee simple, mean Conclusions *in default of children [and following a devise to children suggested. in tail, mean in default of children or of issue inheritable under the entail.] (d) This is free from all doubt.

2nd. That these words following a devise to all the sons successively in tail male, and daughters concurrently [or successively] in tail genera 1, [or in tail special] are also to be construed as signifying such issue, even in the case of an executory trust. (e)

3rd. That words devising over the property on failure of issue male, following a devise to the whole line of sons successively in tail male, are also referential to those objects. (f)

[4th. That where the children take a life estate only the words “in default of issue" introducing the gift over will create an estate tail by implication in the parent subject to the children's life estates.] (g)

(d) Goodright v. Dunham, Doug. 764, ante p. *459; [Doe v. Duesbury, 8 M. & Wels. 514, ante p. *464;] Ginger d. White v. White, Willes 348; [Baker v. Tucker, 3 H. L. Cas. 106, 14 Jur. 771, ante p. *460.]

(e) Blackborn v. Edgley, 1 P. W. 600, ante p. *461; Morse v. Marquess of Ormonde, 5 Mad. 99, 1 Russ. 382, ante p.

*463; [Peyton v. Lambert, 8 Ir. Com. Law Rep. 485.]

(ƒ) Bamfield v. Popham, 1 P. W. 54, 760, 1 Eq. Cas. Ab. 183, 2 Vern. 427, 449.

[(g) Doe v. Gallini, 3 Ad. & Ell. 340, ante p. *478; Parr v. Swindels, 4 Russ. 283, ante p. *476; and per Lord Kingsdown, Towns v. Wentworth, 11 Moo. P. C. C. 546.]

5th. That where there is a prior devise to a definite number of sons only in tail male, with a limitation over in case of default of issue or issue male of the parent, an estate tail will also be implied in the parent, in order to give a chance of succession to the other sons. (h)

6th. That in the case of executory trusts, words importing a dying without issue, following a devise to the first and other sons of a particular marriage in tail male, authorize the insertion of a limitation to the parent in tail general, in remainder expectant on those estates. (i)

7th. That such words (whether they refer to issue or issue male), succeeding a devise to the eldest son [for life or] in tail, are not referable to such son exclusively, but create in the parent an implied estate tail, (k) in remainder expectant on the estate [for life or in] tail of the son; () and which rule also, it seems, applies where children [only who survive a specified period] take estates tail. (m)

*8th. That the circumstance of the preceding devise to children, &c., being subject to a contingency (o) is rather unfavorable to the construction which reads words importing a failure of issue to refer to a failure of the objects of such preceding devise.

This statement of the result of the cases may somewhat assist in the consideration of the subject, though cases are incessantly occurring which present new circumstances, and give rise to nice questions on the application of the rules furnished by the preceding authorities, even admitting those rules to be free from doubt. The reader is recommended, before he unreservedly accedes to the foregoing propositions, to consult the cases themselves, in order that he may see how far the construction may have been aided by the circumstances of the particular case. (p)

III.—4. It may be useful, in this place, to advert to the doctrine

(h) Langley v. Baldwin, 1 P. W. 759, 1 Eq. Cas. Ab. 185, pl. 29, 1 Ves. 26; Att.-Gen. v. Sutton, 1 P. W. 754, 3 B. P. C. Toml. 75, ante p. *471.

(i) Allanson v. Clitherow, 1 Ves. 24. (k) Stanley v. Lennard, 1 Ed. 87; [Key v. Key, 4 D., M. & G. 73,] ante pp. *472, *473.

(1) Doe d. Bean v. Halley, 8 T. R. 5, ante p. *473.

(m) Doe v. Gallini, 5 B. & Ad. 621, 3 Ad. & Ell. 340, ante p. *478.

(0) Doe v. Lucraft, 8 Bing. 386, 1 M. & Sc. 573; Franks v. Price, 6 Scott 710, 5 Bing. N. C. 37, 3 Beav. 182; [Alexander v. Alexander, 16 C. B. 59; Doe v. Gallini, supra n. (m); and per Lord Cranworth, 8 H. L. Cas. 593.

(p) See especially per Turner, L. J., Key v. Key, 4 D., M. & G. 88.]