Common Pleas. FITZGERALD the said lands of Tonatygannon, Carardaghy, Drutany and Knock- H. T. 1854. awelt, subject to the same equity of redemption as the said William Roddy was then entitled to; and that by indenture dated the 1st of January 1847, William Roddy conveyed to Robert Clifford, his heirs and assigns, the said lands of Carrigans and Clinumphy. Frederick Smyth, for the plaintiff. The case may be argued on the construction of the devise to William Roddy. The devises to the other sons must receive the same construction. We submit that William Roddy took an estate tail in the fee-simple lands, and quasi in tail in the freehold lands. It may be considered as settled, on the authorities, that in a will the words "issue" and "heirs of the body" have the like effect, and embrace all future issue derived from the first taker: Dodson v. Grew (a); Hockley v. Mawbey (b); and that neither the circumstance of the will containing an express gift for life, Perrin v. Blake (c), Hodgson v. Merest (d), nor a power of appointment amongst the issue given to the parent, nor the addition of words creating a tenancy in common among the issue, in default of appointment, Doe d. Cock v. Cooper (e), nor the use of the word children," in describing the objects of that power, will be sufficient to cut down the implication of an estate tail in the parent: Jesson v. Wright (f); Dalzell v. Welch (g); Machell v. Weeding (h). Even if the word "issue," in the devise to William and his issue, is to be read as "children," the words would be sufficient to give an estate tail to William Roddy: Wild's case (i); Seale v. Barter (k) ; Robinson v. Robinson (l); Mellish v. Mellish (m); Doe v. Garrot (n). But if it be contended that the words are not sufficient to create an estate tail in William Roddy, then the will must be construed as giving a life estate to William Roddy, with a con (a) 2 Wil. 322. (c) 4 Beav. 2579; S. C., 1 W. Bl. 672. (e) 1 East, 227. (b) 1 Ves. jun. 152. (ƒ) 2 Bligh, 1. v. RODDY. Common Pleas. FITZGERALD v. RODDY. H. T. 1854. tingent remainder to the children of William Roddy, either for life or in tail: Doe d. Bean v. Halley (a); Parr v. Swindels (b); Bennett v. Lowe (c). On this construction, the reversion in fee, being undisposed of, descended to William Roddy, as heir-at-law of the testator; and the recovery suffered in Michaelmas Term 1833, by John and William Roddy, destroyed these remainders, and vested an absolute estate in William Roddy. The following cases were cited Davie v. Stephens (d); Doe v. Luxton (e); Doe d. Clark v. Clark (f); Allen v. Allen (g); Whitsitt v. Thompson (h); 2 Jarman on Wills, pp. 170, 173; Prior on Limitations, p. 120. M'Mahon (with him Lynch), for the infant children of W. Roddy. We submit that, under the will, William Roddy took an estate for life, with remainder to his children living at his death, as tenants in common in fee. Under the terms of the power of appointment, William Roddy could have appointed the fee to his issue; and the estate in default of appointment must be construed as co-extensive with that which the issue might have taken under the exercise of that power: Lees v. Moseley (i); Greenwood v. Rothwell (k); Carter v. Bentall (1); Edwards v. Edwards (m); Ryan v. Cowley (n); Montgomery v. Montgomery (o). The devise of an express estate for life, followed by a gift to the issue, to take as they could not take as issue in tail, and the fact of the testator having, by the will, translated the word "issue" to mean "children, "all show that it was his intention that the children of William should take as purchasers. The word "issue" will not be construed as a word of purchase, where the effect of doing so would be to give estates for life only to the issue. The construction of the continuous clauses as Common Pleas. FITZGERALD RODDY. to John, is to give a life estate to him, with remainder to his chil- H. T. 1854. dren living at his death, as tenants in common in fee; and in case he should die, leaving no children living at his death, then to William, for life, with remainder over to his children in like manner. On this construction of the will, there was no destruction of the contingent remainders. The mortgage deed, in making the tenant to the præcipe, conveyed the lands for the joint lives of the tenant and the grantor, thereby leaving a reversion in William Roddy. The effect of this would be that, according to the doctrine in Smith v. Clifford (a), there was a sufficient estate for the recovery to operate upon; and the reversion on his life estate, remaining in William Roddy, passed with the remainder in fee, without disturbing the contingent remainders. On this point he cited: 1 Preston on Conveyancing, p. 107; Pigot on Common Recoveries, p. 36. In this case the children take under the appointment, in exercise of the power in the will of Charles Roddy. It is admitted that a recovery will destroy a power of this kind; but the destruction in the present case was a fraud, and as such, void, the object being to convey the estate to William Roddy, discharged of the power. The following cases were cited: Loddington v. Kime (b); King v. Stafford (c); Jersey v. Deane (d); Knight v. Selby (e); Croly v. Croly (f); Irwin v. Cuffe (g); Crozier v. Crozier (h). Deasy, in reply. In construing the will of Charles Roddy, we rely on the circumstance of the will containing an express devise for life to William Roddy-a gift to the children distinctly, and in words sufficient to carry the fee-simple in the lands to them—and a gift over in default of issue, as showing an intention to give an estate tail to William Roddy. If there be an intention that the whole issue of William Roddy should take, that can only be effected by giving an estate tail to him. On the word "issue" being construed "children," he cited (a) 1 T. R. 738. (c) 7 East, 522. (e) 3 Scott's N. R. 409. (b) 1 Salk. 224; S. C. 1 Ld. Ray. 203. (f) Batty, 1. (h) 3 D. & W. 381. 11 L Common Pleas. FITZGERALD v. RODDY. H. T. 1854. and distinguished Carter v. Bentall (a); Farrart v. Nichols (b). On the remainders to the children of William Roddy being contingent, he cited Loddington v. Kime (c); Goodtitle v. Billington (d); and on the destruction of such remainders by the recovery, the cases of Doe v. Wainwright (e), Doe d. Darcy v. Burnsall (f); Allen v. Allen (g). Cur, ad. vult. MONAHAN, C. J., now delivered the judgment of the Court. This was an ejectment on the title, brought to recover several denominations of land—some held in fee-simple, and others under leases for lives, with covenants for perpetual renewal. There was a special verdiet, which sets forth, among other matters, the will upon which the question in this case depends. It appears, on the special verdict, that Charles Roddy the testator was, at the time of making his will, seised of several denominations of lands-two or three of them in fee-simple, the others under a lease for lives, with a covenant for perpetual renewal. By his will, he first devised one denomination of land to his son John for life, remainder to his issue, remainder to his son William and his issue, remainder to his son Thomas and his issue, with an ultimate remainder to his eldest son Bernard, his heirs and assigns, for ever. He then goes on with the other denominations, disposing of them in precisely the same way, but altering the order of the sons; and the only thing material to be observed is, that in all of them the ultimate remainder is to the eldest son Bernard, to whom there is no immediate devise. We do not think that the change of words in the devises is sufficient to effect any change in the nature or extent of the estate devised. We think that it is plain, upon reading the whole of the will, that whatever estate the testator intended to give to the object of the first devise, he intended to give the same to the object of the second devise, and so on accordingly the question is, what was the intention of the testator, as to the estate to be taken by the first devisee for life, and H. T. 1854. what was the estate to be taken by the issue of that first devisee? I shall now take any one of these devises as an illustration-for instance, the following:-"I give and devise the said lands of To"natygannon and Carrardaghy to my son William during his life, "and after his death to his lawful issue, in such manner, shares and "proportions, as he by deed or will, duly attested, shall direct, limit "or appoint; and for want of such appointment, to his issue equally, "if more than one, and if only one child, to said child; and on fail ure of issue, to my son William. I give and devise said lands last "mentioned to my son John and his issue, with like power of ap'pointment; and in case of no appointment, to such issue equally, "and if only one child, to such child; and for want of issue of my "son John, I give and devise said lands to my son Thomas and "his issue, with the like power of appointment to my son Thomas; "and for want of such appointment, to his issue equally; and if only one child, to said child; and on failure of issue of my son Thomas, "I give and devise said lands to my son Bernard, his heirs and as"signs, for ever." There are three or four other denominations, of which the devises are the same, though the order of the sons in them is different, but in all it is observable that, after the primary devise of each denomination, the lands are given to the other sons and their issue, only on failure of issue of the son taking the previous estate; and that is particularly repeated in every instance. Now, under that devise, what estate did William take? That must depend upon the meaning of the word "issue," as used in that devise; for if "issue" be synonymous with "descendants or "heirs of the body," then, according to all the authorities, it must be held that he took an estate tail: but if, upon the construction of the whole will, we should be of opinion that "issue" was used as synonymous with "sons," or "issue living at any particular period," then it must be held that William took an estate for life, and that his issue took as purchasers under the original limitation. Therefore, the first question is, what is the ordinary meaning of the word "issue," and is there any thing in this will to alter its ordinary signification? In Lees v. Mose Common Pleas. FITZGERALD V. RODDY. |