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Where a testator and his executor had been partners, and the latter, without separating the interest of the former in the firm property and assets, continued to employ it in the business, he was charged with compound interest. Hannahs v. Hannahs, 68 New York, 611: "While compounding interest is in some sense a penalty for negligence or wrong-doing, the executor here was properly chargeable with negligence."

INTERPRETATION.

SECTION I. General Principles of Interpretation of Written Instruments.
SECTION II. Interpretation of Deeds and other instruments inter partes.
SECTION III. Interpretation of Acts of Parliament.

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IN the interpretation of written instruments, the rule is to gather from the whole instrument the intention of the person or persons whose mind is presumed to be expressed by the instrument. The grammatical and ordinary sense. of the words is to be adhered to, unless that would lead to absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity or inconsistency, but no further.

VOL. XIV. - 37

No. 1. Cholmondeley v. Clinton, 2 Mer. 171-176.

Cholmondeley v. Clinton.

2 Merivale, 171-362; 2 Jacob & Walker, 1-201 (22 R. R. 83, 84 et seq.).

Interpretation. Principles of. - Destination in Plain Words.

-Context.

G. being tenant in fee of an estate derived from his inaternal grandfather, S. R., by a deed, in 1781, reciting that he was desirous that the estates should remain in the family and blood of S. R., and to the intent that the estates night continue in the family and blood of his late mother on the side of her father, settles the estates to the use of himself for life, remainder to the heirs of his body; for default of such issue as he should appoint: for default of appointment, "to the use of the right heirs of S. R." G. was at the time of the settlement himself the right heir of S. R. Held: by Sir W. GRANT, M. R., and a majority of the King's Bench, that the ultimate limitation was, in effect, a limitation to G. himself and his heirs; by BAYLEY, J., dissenting from the judgment of K. B., and by Sir T. PLUMER, M. R., that the intention of the limitation was to bring in the person of the mother's family who would be heir, on the heirs ex parte paternâ being excluded.

The suit of Cholmondeley v. Clinton was a suit in which various points were keenly contested. It was ultimately decided by the House of Lords on a ground which is now beyond controversy by statute (3 & 4 Will. IV., c. 46); namely, that a suit to establish a right to possession under an equitable title is barred by the same limitation which would be a bar to recovery under a legal title.

The case will here be only reported upon the point which was elaborately argued before Sir W. GRANT, M. R., and afterwards before Sir T. PLUMER, M. R., as to the construction of the ultimate limitation in a certain deed of 1781. This was a settlement in the form of a lease and release, made by George, Lord Orford, of an estate which had come to him, through his mother, from his maternal grandfather, S. R.

This indenture of lease and release was dated the 1st and 2nd of August, 1781, and expressed to be made between the said [176] George, Earl of Orford (described as only son and heir of

Robert, Earl of Orford, by Margaret, his wife, who was daughter and only surviving child and heir of Samuel Rolle, who was only son and heir of Robert Rolle, Esquire, by Arabella, his wife, who was daughter and co-heir of Theophilus Clinton, Earl of Lincoln and Baron Clinton), of the one part, and Joshua Sharpe of the other part. It recited the will of Samuel Rolle, and his death, leaving his daughter Margaret him surviving, her marriage with Robert, Earl of Orford, and her death, leaving him, the said

No. 1.- Cholmondeley v. Clinton, 2 Mer. 176, 177.

George, Earl of Orford, her only son, who thereby became tenant in tail of the premises; and recited an indenture of bargain and sale and recovery (by which the premises became vested in himself in fee), and that he was " willing and desirous that the said premises should continue and remain in the family and blood of the said Samuel Rolle." It was then witnessed, that " for and in consideration of the natural love and affection which *the said George, Earl of Orford, had and bore unto his [* 177] relations, the heirs of the said Samuel Rolle, and to the intent that the manors, &c., and hereditaments thereinafter mentioned might remain, continue, and be in the family and blood of his late mother, the said Margaret, Countess of Orford, on the side or part of her father, the said Samuel Rolle," and for other considerations, he, the said George, Earl of Orford, conveyed, &c., all and singular the manors and hereditaments therein mentioned (being the estates devised by the will of Samuel Rolle), to the said Joshua Sharpe, his heirs and assigns, to the use of him, the said George, Earl of Orford, for life; and after his decease to the use of the heirs of the body of him, the said George, Earl of Orford; and for default of such issue, to the use of such person, &c., for such estate, &c., as the said George, Earl of Orford, by deed or will, should appoint; and in default of appointment, " to the use of the right heirs of the said Samuel Rolle for ever." And in the said deed was contained a general power to the said George, Earl of Orford, of revoking the uses therein before specified, and of limiting and declaring new uses of the same premises, or any part thereof.

The said George, Lord Orford, subsequently mortgaged the estate to pay off certain incumbrances. He died on the 5th of February, 1791, without issue and intestate as to the equity of redemption. At the time of his death (or rather at the instant before his death, when the default of exercise of the power of appointment became determined), the person who would be accurately described as the right heir of Samuel Rolle was George, Lord Orford, himself. But in the arrangements made upon his death, it was assumed by all parties that the intention of the settlement was that the estate should go to the person representing Samuel Rolle by way of descent from his mother, Arabella, and this construction was acted on, and the estate possessed, accordingly, for more than twenty

years.

No. 1. Cholmondeley v. Clinton, 2 Mer. 177–341.

The judgment of Sir W. GRANT, M. R., was, so far as relates to the question of construction of the settlement of 1781, as follows:

[340] The MASTER OF THE ROLLS.

The substantial question in this cause is, which of the parties is entitled to an estate which, being derived from a gentleman of the name of Samuel Rolle, is denominated the Rolle Estate? Lord Clinton and his father had, for more than twenty years before the filing of the present bill, been in the undisturbed possession of this estate, and had been considered as the undoubted owners of it. The plaintiffs now say, that it was under a mistake with regard to the effect of a deed executed in 1781 that this long enjoyment had been permitted; that, when the late Lord Clinton took possession of the estate, it really belonged to the late Horace Walpole, Earl of Orford, and from him has either descended to the plaintiff, Lord Cholmondeley, as his heir-at-law, or passed to the other plaintiff, Mrs. Damer, as his general devisee. The estate is subject to a mortgage made prior to the time when the right of either of these parties accrued; and it is from this circumstance that the question of title comes to be discussed in a Court of equity. The plaintiffs, assuming that the equity of redemption is in them, or one of them, filed this bill, for the purpose, first, of redeeming the mortgage, and secondly, of obtaining from Lord Clinton [* 341] the possession of the estate, and an account * (for a certain period, at least) of the rents and profits which he has

received.

The mortgage has, in point of fact, become vested in a trustee for Lord Clinton; but that does not in any degree affect the substance of the question between the parties. The last undisputed owner of this estate was George, Earl of Orford, who died in the year 1791. He had succeeded to it on his mother's death, as tenant in tail under the will of his maternal grandfather, Samuel Rolle; and having suffered a common recovery, became seised of the fee, subject to a mortgage for a term of years, which he afterwards converted into a mortgage in fee. Being the absolute owner of this estate, he (in 1781) executed a settlement of it, on the effect of which the first question in the cause depends.

After a recital, to which I shall afterwards more particularly advert, he limited the estate to the use of himself for life; remainder to the heirs of his body; remainder, in default of such

No. 1. Cholmondeley v. Clinton, 2 Mer. 341, 342.

heirs, to such persons as he should appoint; with a remainder to the right heirs of Samuel Rolle; and then he reserved a general power of revocation and new appointment. Under the limitation

to the right heirs of Samuel Rolle, Lord Clinton claims to be entitled, as he was right heir of Samuel Rolle at the time of the death of Earl George, who had no issue, and never revoked the uses of the settlement, nor executed any new appointment under the power.

If his claims under this deed cannot be sustained, the consequence would be that the estate descended to Horace Walpole, Earl of Orford; but, even then, it is contended by Lord Clinton that he is entitled to the estate, because (in the year 1794) Horace, Earl of * Orford, executed a deed, which supplied [* 342] any defects that there might have been in his (Lord Clinton's) title, and conveyed all the interest which Earl Horace had in the estate. The effect of this deed of 1794 forms the second question in the cause.

The last question, as between the plaintiffs and Lord Clinton, is, whether, supposing neither of the deeds gave the latter any title to the estate, the long possession which has been had of it by himself and his father does not operate as a bar to the plaintiff's claim.

1. I have already said, the first question turns on the limitation in the deed of 1781 to the right heirs of Samuel Rolle. It happened that George, Earl of Orford, was himself the right heir of Samuel Rolle. The strict effect of the limitation was, therefore, to leave the reversion where, without any such limitation, it would have remained, namely, in Lord Orford, the grantor in this deed; and, on his death without issue, the fee would descend to his heir-at-law, who was Horace, Earl of Orford. But Lord Clinton contends that it is not in its strict literal sense that this limitation ought to be understood; that Lord Orford's intention appears to have been so to settle the estate as to carry it to his relations on the mother's side, in default of issue of his own body; and that, to effectuate such intention, we must understand the words as designating not the heirs of Samuel Rolle at the time of the execution of the deed, but such persons as should be his heirs at the time when there should be a failure of Lord Orford's own issue. That Lord Orford had the intention which is ascribed to him, there can, I think, be no reasonable doubt. The deed begins

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