1853. DARLEY v. MARTIN. Darley took absolutely the whole interest in the said leasehold messuages No. 48, Dorset Street, and No. 42, Beaumont Street, or whether, after her death, without leaving children or issue, the same, or any and what interest therein, passed by the said will and codicil to the last-mentioned plaintiffs, as the only surviving children and issue of George Darley the son. If the said Mary Darley took the whole interest in the said leasehold messuages, then judgment was to be entered for the defendants; but, if, on the death of the said Mary Darley without leaving children or issue, the plaintiffs took any interest in the said messuages under the said will and codicil, then judgment was to be entered for the plaintiffs without costs, to recover possession of the said messuages, or such part or interest therein as the court might direct. The will and codicil were to be referred to, if necessary, as part of the case. Unthank, for the plaintiffs, submitted, that, under the will, or under the will and codicil together, the testator's daughter Mary took only an estate for life. He referred to Tilly v. Collyer, 3 Keble, 589, Bibin v. Walker, Ambler, 661, Lyon v. Mitchell, 1 Madd. 467, Forth v. Chapman, 1 P. Wms. 663, Doe d. Cannon v. Rucastle, antè, Vol. VIII, p. 876, Jesson v. Wright, 2 Bligh, 1, Knight v. Ellis, 2 Bro. C. C. 570, Lees v. Mosley, 1 Y. & C. Exch. 589, Slater v. Dangerfield, 15 M. & W. 263, Evans v. Jones, 2 Coll. C. C. 516, Pearson v. Stephen, 5 Bligh, N. S. 203, Williams v. Evans, 1 Ellis & B. 727, 1 Jarman on Wills, 460, 2 Jarman, 362. Dowdeswell, contrà, submitted that it was the manifest intention of the testator that the whole of the issue of his daughter Mary should be exhausted before the gift over to the son was to take effect. He cited Shelley's Case, 1 Co. Rep. 93. b., Attorney-General v. Bright, 2 Keen, 57, Jordan v. Lowe, 6 Beavan, 350, Simmons v. Simmons, 8 Simons, 22, Skerratt v. Oakley, 7 T. R. 492, 2 Powell on Devises, 631, 1 Jarman on Wills 464, 2 Jarman on Wills, 496. Cur. adv. vult. JERVIS, C. J., now delivered the judgment of the This case turns on the construction of the will and codicil of George Darley, made in the year 1820. The will, after giving the testator's son George two houses in Hampstead, for life, and, after his death, to and amongst his children living at his death,-bequeaths to his daughter Mary the leasehold houses in question for her life, and, after her death, to and amongst her lawful issue equally, share and share alike, with benefit of survivorship; and, in default of such issue, to the son for life, and, after his death, to his children. By a codicil made shortly afterwards, the testator,-after reciting, that, by his will, he had given the two houses in Hampstead to his son for life, &c., and also that he had given to his son the houses in question "after the decease of my said daughter, and in default of her leaving lawful issue,”. goes on to provide, that, in case his son does not indemnify his estate from a certain debt of the son's for which he, the testator, had made himself liable, the bequest to the son shall be revoked. On the part of the plaintiffs, it was admitted to be a settled rule, that, if the bequest would have created an estate-tail in real estate, it would confer the absolute interest in personal estate, such as the leaseholds in question. But it was argued that the language employed in the will gave only an estate for life to the daughter, for, that,-first, according to Lord Thurlow's decision in Knight v. Ellis, 2 Bro. P. C. 570, a bequest of personal estate to A. for life, and, after his death, to his issue, 1853. DARLEY v. MARTIN. 1853. DARLEY v. MARTIN. gives the legatee an estate for life only, and, secondly, that at all events, a bequest like the present, of personal estate to A. for life, and, after his death, to his issue as joint-tenants, or tenants in common, being a course of enjoyment inconsistent with the devolution of an estatetail, is only a gift to A. for life,—and, thirdly, it was contended, on the authority of Tilly v. Collyer, 3 Keble, 589, and Bibin v. Walker, Ambler, 661, that, as the codicil recites that the testator had by his will given the houses in question to his son after the decease of his daughter, and in default of her leaving issue, this was sufficient to constitute a bequest over in accordance with the recital; and, if so, that it was clear that such a bequest over was not bad for remoteness, because the expression, in default of leaving issue, as applied to personal estate, means issue living at her death. The contention, therefore, was, that, even if the gift to the daughter for life, and, after her death, to her issue, was to be construed as an absolute bequest to her, yet she took it, according to Lyon v. Mitchell, 1 Madd. 467, subject to an executory bequest over, in the event of her leaving no issue surviving her. On the part of the defendants, it was argued, that the case of Knight v. Ellis has been in effect overuled by The Attorney-General v. Bright, 2 Keen, 57, and Jordan v. Lowe, 6 Beavan, 350; and that it is now established, that a bequest of personal estate to A. for life, and, after his death, to his issue, gives him the absolute interest. And, with respect to the bequest to the issue being to them as joint-tenants, or tenants in common, it was contended that this is immaterial; for, that the same rule must prevail, in this respect, with regard to bequests of personalty, as has been established with regard to devises of real estates since the decision of Jesson v. Wright, 2 Bligh. 1. And, as to the effect of the codicil, it was argued, that an erroneous reference in a codicil to the dispositions of the will, cannot constitute a new bequest in opposition to the will: and Skerratt v. Oakley, 7 T. R. 492, was relied on. But it appears to us that the argument with respect to the effect of the codicil, when rightly considered, is not that the will is at all revoked or varied by the codicil; but, rather, that, the will and codicil being all one testament, the language of the will may be interpreted by that of the codicil; and that, accordingly, the gift over in the will, “in default of such issue," being capable of importing a bequest over on failure of issue living at the death, it ought to be inferred that the testator employed it in that sense, because, in the codicil, he refers to it as if it were a gift over in default of his daughter's leaving no issue, which, as regards personalty, is tantamount to a gift on failure of issue living at her death. The argument, thus viewed, appears to us to be well founded; and we are therefore of opinion, that, even if the preceding limitation conferred an absolute interest on the daughter, such gift was subject to a good executory bequest over in favour of the plaintiffs,-who are consequently entitled to our judgment. Judgment for the plaintiffs. 1853. DARLEY v. MARTIN. 1853. June 8. A. contracted with B., a shipbuilder in Nova Scotia, for the building of a vessel. B. was already largely indebted to A. upon a general consignment account, and A. from time to JAMES REID and JAMES STEWART v. WILLIAM BLACKE- THIS time made considerable advances on account of the ship whilst in progress, and also supplied anchors, cables, and other stores for her. On the 20th of June, 1848, B., by a bill of sale, reciting that A. had made advances to B., and had agreed to make such further advances as he might require to build, launch, rig, and fully equip the vessel for sea, "for the security and repayment of all such sum or sums of money as A. had already advanced or might thereafter advance, to aid and assist him to complete and finish the said vessel," bargained, sold, assigned, and transferred to A. “a certain ship or vessel now in course and progress of building" by him, at &c., particularly describing it, together with certain timber in B.'s possession,-"to have and to hold the said ship or vessel, &c., goods and chattels, &c., to A., his executors, &c., to their absolute use and benefit and behoof for ever, when the said ship or vessel shall be complete and finished, in as full, ample, and perfect a manner as if the said ship or vessel were ready for sea, and ready to be delivered to the said A. at the time of executing these presents." On the 30th of January, 1849, B. signed a builder's certificate and declaration of ownership stating A. to be the sole owner of the vessel, and thereupon obtained a certificate of registry in A.'s name, pursuant to the 8 & 9 Vict. c. 89, s. 11. This certificate B. retained in his own possession. On the 29th of March, 1849, B. induced the comptroller of the customs at Pictou, in Nova Scotia, to cancel the above certificate, and to grant him a fresh one in his own name as owner, and on the same day executed an assignment of the ship, then in an unfinished state, to C., who took possession of her, finished her, and sent her to Liverpool with a cargo on his own account: Held, that the property in the ship passed to A. by the bill of sale of the 20th of June, 1848, and that his right was in no degree limited by the habendum; and, consequently, that C. was liable in trover. The parties having agreed that the amount of damages should be assessed by an average stater, the court suggested, and the parties assented, that the proper principle on which to estimate such damages, would be, the value of the ship and all her stores, &c., on the 29th of March, 1849, when C. took possession of her; and that, as a mode of ascertaining such value, the referee should consider what would have been the value of the ship at Pictou, if she had been completed by B. according to his contract with A., and deduct therefrom the money that would necessarily have been laid out by B. after that date, in order to complete her according to the contract. Quare, as to the effect of the registry of the ship in A.'s name, if there had been no bill of sale? |