Stainton aforesaid shall be in trust for my grandson William Darnell and the said Robert Watson Darnell and my granddaughter Elizabeth Darnell, in equal shares as tenants in common, their respective heirs and assigns for ever."

The testator's will also contained a power to appoint new trustees, and he thereby appointed Robert Watson Darnell and Watson Chapman his executors.

Ann Watson, the wife of the testator, died in his lifetime.

The testator died in August, 1817, without having revoked or altered his will, which was duly proved by his executors, Robert Watson Darnell and Watson Chapman.

Watson Chapman died in the month of December, 1824, leaving his co-executor and co-trustee Robert Watson Darnell him surviving, and Rutter was appointed trustee in the place of Watson Chapman.

The testator left Richard Watson his only surviving son and heir-at-law, and his grandchildren Robert Watson and Ann Watson, who were the only children of Richard Watson, him surviving.

The testator also left surviving, his daughter-in-law Mary Watson, who died in the month of March, 1831, and his sister Mary Chapman, who died in the month of June, 1832.

The grandson Robert Watson attained his age of twenty-one years in May, 1829, and entered into possession of the hereditaments devised to him by the testator, and so continued until his death in 1848, but he never in any manner barred, or attempted to bar, his equitable estate tail in these hereditaments. He was never married.

The testator's son Richard Watson died in the month of August, 1844, intestate, and leaving his son Robert Watson his heirat-law.

Robert Watson made his will in July, 1843, and devised all his real estates and personal estate to his sister Ann Watson, her executors, &c., for ever, and he appointed her the sole executrix of his will, which she duly proved.

Ann Watson, upon the death of her brother, entered into the possession of all the hereditaments devised to him by the testator, and continued in such possession until her death, but never barred, or attempted to bar, her estate tail in the hereditaments devised to her by the testator Richard Watson. She died in February, 1849,

No. 2. Grey v. Pearson, 26 L. J. Ch. 475, 476.

above age, but unmarried. She made her will, dated the 25th of November, 1848, whereby she devised all her lands and hereditaments situate in the several townships, precincts, or ter[476] ritories of Stainton and Hemlington, in Cleveland, or

in the parish of Stainton aforesaid, and all other her real estate whatsoever, to William Hill (since deceased), and William Pearson, their heirs and assigns, upon trust to sell the same, and to stand possessed of the proceeds to pay the several legacies therein before given, and she gave the residue of such proceeds to William Hill and the respondent William Pearson, their respective executors, administrators, and assigns, for their respective proper use and benefit; she appointed them her executors, and they duly proved her will.

William Pearson and William Hill (since deceased) filed their bill in 1850, against William Rutter and others (the now appellants), and, claiming through the heir-at-law of the testator, prayed that it might be declared that in the events which had happened the limitations in the will had become inoperative, and that they, as representing the heir, were entitled to both estates; and that Rutter, who had been appointed a trustee of the will, and had become the surviving trustee thereof, might convey to them accordingly.

The cause was heard before Vice-Chancellor TURNER, who, by an order dated the 6th of December, 1852, dismissed the bill with costs, his Honour being of opinion that both estates still continued subject to the ultimate limitation contained in the will, and under which the appellants claimed and derived their title in the estates.

The plaintiffs appealed from this order; and by an order, dated the 11th of June, 1853, the LORD CHANCELLOR was pleased to vary the VICE-CHANCELLOR's order, and to declare in substance that, in the events which had happened, the Hemlington estate had descended to the heir-at-law of the testator, and that Pearson and Hill were entitled thereto; but that the ultimate limitation in the will of the Stainton estate continued in force, and that the appellants were respectively entitled thereto in manner therein mentioned. (3 De G., M. & G. 398.)

The present appeal was presented against that order.

Mr. Walker, Mr. Malins, and Mr. G. Y. Robson, for the appellants, contended that the rule of construction in Brownsword v.

Edwards, 2 Ves. 243, must govern this case, and that the authority of that decision was not affected by that of Doe d. Usher v. Jessep, 12 East, 288 (11 R. R. 380), but that the latter was erroneous. They cited in illustration of this argument, Woodward v. Glasbrook, 2 Vern. 388; Mortimer v. Hartley, 3 De G. & Sm. 316, 19 L. J. C. P. 153, 6 C. B. 819, 20 L. J. Ex. 129, 6 Ex. 47; Maberly v. Strode, 3 Ves. 450 (4 R. R. 61); Fingal v. Blake, 2 Molloy, 50; Fairfield v. Morgan, 2 Bos. & P. (N. R.) 38 (9 R. R. 609); Malcolm v. Taylor, 2 Russ. & M. 416; Luxford v. Cheeke, 3 Lev. 125; Turk v. Trencham, Moore, 12, pl. 50; Lethieullier v. Tracy, 3 Atk. 774; Spalding v. Spalding, Cro. Car. 185; Doe d. Lees v. Ford, 2 El. & B. 970, 23 L. J. Q. B. 53; Garde v. Garde, 3 Dr. & W. 435; Quicke v. Leach, 13 M. & W. 218, 13 L. J. Ex. 348; Key v. Key, 4 De G., M. & G. 73, 22 L. J. Ch. 641.

Mr. Rolt and Mr. Faber, for the respondents, contended that the decision in Doe d. Usher v. Jessep was to be preferred to that of Brownsword v. Edwards, if the two cases should be found to be absolutely irreconcilable. They examined the cases already cited, and in addition referred to Soulle v. Gerrard, Cro. Eliz. 525; Helliard v. Jennings, 1 Ld. Raym. 505; Hilliard v. Gennings, 12 Mod. 276; Walsh v. Peterson, 3 Atk. 193; Denn d. Wilkins v. Kemeys, 9 East, 366 (9 R. R. 581); Right v. Day, 16 East, 67 (14 R. R. 294); Bellasis v. Uthwatt, 1 Atk. 426; Bradford v. Foley, 1 Dougl. 63; Sheffield v. Coventry, 2 De G., M. & G. 551, 22 L. J. Ch. 499; Doe v. Shipphard, 1 Dougl. 75; Bell v. Phyn, 7 Ves. 453 (6 R. R. 148).

March 16. The LORD CHANCELLOR moved the judgment of the House. [After very fully stating the facts, his Lordship said]: Had there been no previous decision, the question in this case would not in my mind have presented much difficulty. *The rule of construction adopted in modern times has [477] been to adhere strictly to the express words in a deed or will, and to give them their ordinary natural meaning, unless that meaning should be at variance with the context, or should produce a result plainly at variance with the intention of the testator. Would such a result follow from construing in this case. the word "and" copulatively? I think it would not. An estate tail is given by the testator to R. Watson and the heirs of his body, so that, on attaining twenty-one, Robert would have the

No. 2. Grey v. Pearson, 26 L. J. Ch. 477.

power of disposing of the property as he might think fit. Probably the testator knew that this would be the consequence of such a gift. If the grandson dies under twenty-one and without issue, the estate is to go over. That was not an irrational mode of disposing of the property, and therefore it may be supposed to be what the testator intended; and, consequently, if there had been no previous authority, I should have thought it quite clear that, in the events which have happened, there was no gift over. Then, has the mode of construing this will been affected by previous authorities? The cases are numerous. They begin with one in Cro. Eliz., and the doctrine there laid down was approved by this House in Fairfield v. Morgan. There it was held, that if the control of the fee simple is given to A. B., but if he dies under the age of twenty-one or without issue, then over, the word "or" must be read "and," since it could not be supposed that the testator gave such an estate to A. B., and yet meant to deprive A. B. 's issue of it, if it should happen that A. B., having issue, died under twenty-one. If that case was now to be decided for the first time, I should have my doubts about it; but such has been the construction put upon that particular form of devise for the purpose of giving effect to the presumed intention of the testator. Is there any equally well-established rule in the case of a devise to a person and the heirs of his body, with a limitation over, if he dies under twenty-one and without issue? Must he fulfil both conditions, or will the estate, if he should die at any time without issue, go over? To support the proposition that such a result must take place, much reliance was placed on Brownsword v. Edwards. In that case there was a devise to trustees in fee, upon trust to receive the rents, till John Brownsword should attain twenty-one, and if he should attain twentyone or have issue, then to him and the heirs of his body; but if he should die under twenty-one and without issue, then to Sarah Brownsword. John attained twenty-one, but died without issue; and Lord HARDWICKE held, that the remainder over took effect. Lord HARDWICKE thought there was an alternative gift, and that John Brownsword did not fulfil the conditions of the alternative; and that, in any event, if John died without issue, it was to go over to Sarah. Lord HARDWICKE, speaking of those cases in or has been held to mean and," said: There is no occasion to resort to that; but the Court would have made the

which "

"

construction I do now, viz. if he dies without issue before twentyone, then over by way of executory devise; and if he dies without issue after twenty-one, when the estate had vested in him, it would go by way of remainder, because he had made his original devise capable of a proper remainder, in which case the Court will always construe it a remainder." It is not necessary for me absolutely to say that Lord HARDWICKE is not in that case rightly deciding had it been necessary, I must have confessed that I think the decision not founded upon correct principles; because, though the words are not changed, it is implied that there was an intention to give a remainder, in case the estate tail took effect, whereas there are no words which express such intention. Here, however, there are words sufficient to give an estate tail, in the first instance, which was not the case there. The argument here would give the words "under twenty-one years" no meaning at all. I therefore say, that if the case of Brownsword v. Edwards was rightly decided, it was decided on principles not governing the present case. The precise view which I take of the law upon this subject was discussed in Doe d. Usher v. Jessep, in the Court of King's Bench in the year 1810; and I do not think that that case and the present are distinguishable from each other. In that case there was a devise to trustees, " to and for my * natural [* 478] son, and the heirs of his body lawfully issuing, for ever;" and if he "shall happen to die before he attains his age of twentyone years and without issue lawfully to be begotten, then I devise" over to persons who were the claimants. The son died after attaining twenty-one, but without issue. On the discussion of that case Brownsword v. Edwards was much relied on, and Lord ELLENBOROUGH said: "The cases certainly run very near; the only distinction seems to be, that the limitation over in Brownsword v. Edwards was in favour of a daughter, who, without such a construction as was there put on the word 'and,' would have been left without any provision; and here the limitation over is to other relatives." That is a distinction which it is impossible to understand as affecting the case, and was perhaps introduced to save the Court from directly overruling Brownsword v. Edwards. But Lord ELLENBOROUGH then goes on to say: But is there not a rule of common sense, as strong as any case can be, that words in a will are to be construed according to their natural sense, unless some obvious inconvenience or incongruity would result