nieces, Frances Drought and Juliana Drought, daughters of my late sister, Millicent Drought, for and during their lives, and the longest liver of them. And, from and after both their deccases, for all and every the child and children of my said. nieces, and the daughter and daughters of my nephew, Thomas Fuller Drought, equally between them, share and share alike," &c. After certain other provisions, unnecessary to mention, the will concluded thus: "And for default of all such issue, then upon trust for the right heirs of my grandfather, Sir Thomas Samwell, Baronet, deceased (the father of my late uncle, Sir Thomas Samwell, by Mary, his second wife, also deceased, who was the daughter of Sir Gilbert Clarke, Knight, for ever."

Phillis Langham died in 1828 and Frances Ann Langham in 1830; Juliana Drought died in 1845; and Frances Drought in 1849; all of them without ever having been married.

Colonel Samwell (the second tenant for life under the will of Sir Thomas, the testator) made a will by which he devised all his estates whatsoever, &c., to his wife. He died in 1831, and his widow devised all her estates to Emily Vernon, under whom the appellant now claimed.

Thomas Fuller Drought, the last of the persons named as tenants for life in the will of Sir Thomas, the testator, died in 1843, without issue, and the Samwell estates then devolved upon Atherton Watson (who had not been named in the will) as right heir of Sir Samwell, the testator; and, on his death, without issue, in 1851, the question arose as to the construction to be given to the ultimate limitation in the wills of Frances Ann and Phillis Langham, whose title to their undivided twothird shares of the property had then taken effect in possession.

The trustee named in the will of the widow of Colonel Samwell took possession of the estates on the death of Atherton Watson. In 1851, Charlotte Henrietta, the wife of the respondent, Wright, executed a disentailing deed as to her undivided moiety of the estates devised under the wills of Frances Ann and Phillis Langham, and limited the same, in the event of her death, to her husband. She died shortly afterwards, and he became her personal representative.

An action of ejectment was brought by Wright, but it was then found that there were outstanding terms, and so the action was abandoned, and a bill was, on the 9th August, 1852, filed in the Court of Chancery. The bill set forth the facts already stated, and prayed that it might be declared that the plaintiff, Wright, was entitled to one-third part of the Samwell estates, and that an account of the rents thereof, received since

WRIGHT.

the death of Atherton Watson, might be ordered. Answers VERNON were put in, and the cause was heard before Vice-Chancellor KINDERSLEY, who held that the words in the will created a limitation in tail (1). This was an appeal against that decision.

The case was partly argued in the beginning of the session; it was then adjourned to be heard before the Judges, who were accordingly summoned. Mr. Justice Coleridge, Mr. Justice. Crompton, Mr. Justice Crowder, Mr. Justice Willes, and Mr. Baron Watson, attended.

The Attorney-General (Sir R. Bethell) and Mr. Swanston for the appellant [questioned the application to this case of the rule in Mandeville's case, and cited Roe d. Nightingale v. Quartley (2), and they relied upon the words "for ever" as showing that the limitation was intended to create a fee simple]. Mr. Glasse and Mr. Anderson (Mr. Smythe and Mr. Surrage were with them) for the respondent, Wright, [distinguished Roe v. Quartley (2), where the first gift was in fee, and contended that those words "for ever" might be conjoined with an estate tail as well as with an estate in fee]. On the general question the respondent says that the decree is right; but it ought to be amended in form in two respects. First, it gave the respondent no costs; and next, it only gave him the rents of the estate from the filing of the bill; whereas

(1) 2 Drew. 439. The VICE-CHANCELLOR'S judgment in this case contains some observations on the rule in Mandeville's case which may be conveniently reprinted here. After stating the ruleand applying it to the case under consideration the VICE-CHANCELLOR said, at p. 455: "I do not purpose to discuss the merits of the original decision, though perhaps it might not be very difficult to show that the exigency of the Stat. De Donis, which peremptorily directed that the will of the donor should always for the future be observed, left no alternative but to decide Mandeville's case as it was decided; inasmuch as when the estate was limited to the heirs special of a particular ancestor, without any estate of freehold limited to the ancestor himself (either expressly or by implication), it was impossible to effectuate that expressed will of the donor, and to make the estate pass through the whole series of the special heirs designated, except by regarding the limitation as if it were an estate tail which had originally vested in and had descended from the ancestor himself; and yet the first taker must take as purchaser, because no estate did in

fact vest in or descend from the
ancestor. Obedience to the positive
injunction of the Statute De Donis
appears to have necessitated the
creation of this anomalous kind of
entail, which Lord HALE fitly terms a
quasi entail, partaking of the opposite
qualities of purchase and descent. But
without discussing the necessity or
propriety of the original decision, it is
sufficient to say that so far from
Mandeville's case standing isolated and
solitary, confined in its effects to the
narrow circle of its own special circum-
stances, and barren of general con-
sequences, it has in fact established,
or helped to establish, a broad general
doctrine of the widest application,
which has been part of the recognized
law of the land for at least five
centuries, a doctrine which has been
repeatedly recognized and followed in
subsequent cases, and has never (that
I am aware of) been denied by any
judicial authority, and which every
writer on the subject, whatever may
be his comments on the anomaly which
it involves, invariably asserts
assumes to be settled and established
law."

(2) 1 R. R. 326 (1 T. R. 630).

or

[ 42 ]

[ 43 ]

VERNON

v.

WRIGHT.

[ 44 ]

· [ 45 ]

June 2.

[ 46 ]

they ought to have been given from the death of Atherton Watson, the respondents having received them, and of course received them without title, since that time.

(The Attorney-General objected that it was not competent to the respondent to raise this objection, as no cross appeal had been presented.)

Everything in a decree is brought under the consideration of the House on appeal: it is so in the Court of Chancery on the hearing of an appeal against a decree of one of the VICECHANCELLORS.

The Attorney-General, in reply.

*

THE LORD CHANCELLOR [put the following question to the learned Judges ].

'Assuming the facts to be correctly stated in the printed cases, but that the ultimate devises in the wills of Frances Ann Langham and Phillis Langham, instead of being made to trustees, had been made directly to the right heirs of Sir Thomas Samwell by Mary, his second wife, for ever; would Charlotte Henrietta Wright, the late wife of the respondent, William Wright, have taken at the decease of Atherton Watson any and what estate in the lands in question."

There are two coparceners, but I think we may assume that the answer as to the one will be the same as to the other. Whatever is the result as to one will be the result as to the other.

MR. BARON WATSON:

My Lords, I am of opinion that Charlotte Henrietta Wright, the late wife of the respondent, William Wright, would have taken on the decease of Atherton Watson an estate tail in the lands in question. The ultimate devises in the wills of Frances Ann and Phillis Langham are in the following words: "and for default of all such issue, then upon trust for the right heirs of my grandfather, Sir Thomas *Samwell, Bart., deceased, the father of my late uncle, Sir Thomas Samwell, by Mary his second wife, also deceased, who was daughter of Sir Gilbert Clarke, Knt., for ever." I consider these devises as if the

devise had been to the heirs of the body of Sir Thomas Samwell, in lieu of the words "right heirs of Sir Thomas Samwell by Mary his second wife," which is in truth to the heirs of both their bodies.

And this brings it, in my opinion, within Mandeville's case (1) recognised by Mr. Justice TAUNTON in Winter v. Perratt (2). (1) Co. Litt. 26 b. (2) 57 R. R. 60 (9 Cl. & Fin. 615).

That case has remained as law for centuries, and is, in my
opinion, good law. The addition of the words "for ever" at
the end of the devise does not, in my opinion, enlarge the
estate tail in the first taker to an estate in fee: Doe d. Candler
v. Smith (1). The case of Roe v. Quartley (2) does not clash.
with Mandeville's case, and therefore I am of opinion that
Charlotte Henrietta Wright would have taken on the decease of
Atherton Watson an estate tail in the lands in question.
MR. JUSTICE WILLES:

My Lords, I am inclined to think that the estate would be in fee simple. I do not see by what other construction effect can be given to all the words of the will, and I think effect may be given to them all by adopting that construction. The words of description, I mean the words preceding the words "for ever," are ambiguous, and may be read either as a designation of the person or persons to take, and a limitation of the estate as one to go quasi by descent through all the persons who might from time to time, so long as any might exist, successively become such special heirs as described, or, simply, as a designation of the person *or persons who was or were to take when the estate vested, but not also as a limitation of the estate to be taken. This ambiguity appears to me to be removed by the addition of apt and sufficient words of limitation in fee simple, viz., the words "for ever," which, being themselves a limitation of the estate in fee simple, show that the previous words ought to be read in the latter sense, as designatio persona only. In the absence of such words of limitation, the first of the two constructions above suggested might become necessary, if Mandeville's case were, which in this case it is not, in point. Such a construction, however, is not, and was not decided by Mandeville's case to be the necessary one; and, as I have already stated, the words are capable of being used as, and when coupled with the words of limitation are exhausted in their use as, words describing the person or persons to take only. If this construction should not be adopted, the words "for ever" are unnecessarily rejected and treated as null. It is obvious that no rule or authority as to the construction of the words "for ever," following an unambiguous and specific limitation in tail, has any application to the present Upon the authorities, I am not satisfied that Roe v. Quartley has been explained away, and if it has, then, apart from the supposed authority of that case, I am for the above. reasons inclined to think that the words in question would create an estate in fee simple.

case.

(1) 4 R. R. 521 (7 T. R. 531).

(2) 1 R. R. 326 (1 T. R. 630).

VERNON

t.

WRIGHT.

[ 47 ]

[Mr. Justice CROWDER, Mr. Justice CROMPTON and Mr. Justice COLERIDGE took the same view as Mr. Baron WATSON, and as the reasons given by them in their judgments are to a great extent adopted and restated in the judgment of Lord CRANWORTH and Lord WENSLEYDALE it is thought unnecessary to reprint the judgments of the other learned Judges at length.]

LORD CRANWORTH, after fully stating the case, said:

It is not disputed that the plaintiff was right in his contention, if, according to the true construction of the will, the two-thirds are to go as in a course of descent from the grandfather to the heirs of his body by Mary, his second wife.

But, on the part of the respondents, it is argued, that that is not the true view of the rights of the parties. They contend, that the effect of the ultimate limitation in each will was to give the estate in fee to the person who, at the death of each testatrix, was then heir of the body of the grandfather by Mary, his second wife. Colonel Samwell, *the eldest son of Catherine. Watson, was, at the death as well of Frances Ann Langham in 1828, as of Phillis Langham in 1830, heir of the grandfather, by Mary, his second wife; and if he took the reversion in fee, subject to the prior estates, all of which expired in 1849, then the respondents are right in their contention.

The object of the bill filed by Mr. Wright was to obtain a declaration of his right according to the construction for which he contended, with an account of the rents received since his title accrued, and for a partition against the persons entitled to the other portions of the property. Answers having been put in, the cause was duly brought to a hearing, and ViceChancellor KINDERSLEY, in an elaborate judgment, made a decree in favour of the plaintiff, giving him an account of the rents, not from the death of Atherton Watson, in 1851, but from the filing of his bill in 1852. Against that decree the respondents appealed, and the appeal was heard early in this session, with the assistance of the learned Judges. Owing to their absence on the circuit, their opinions were not given till after Easter Term. All the learned Judges who heard the case, except Mr. Justice WILLES, are of opinion that the VICECHANCELLOR took a correct view of the law on this case. And, concurring with them as I do, I have no hesitation in moving your Lordships to affirm the decree below.

I cannot distinguish this case, in principle, from Mandeville's case (1). That case is thus stated by Lord Coke: "John de Mandeville, by his wife Roberge, had issue Robert and

(1) Co. Litt. 26 b.