DAVENPORT v. HANBURY. [ROLLS.-1796, Nov. 17, 21.] UNDER a legacy to the issue of A. all descendants are entitled, and take per capi THIS cause arose upon a legacy to Mary Davenport or her issue (1). Mary Davenport died in the life of the testator. She left only one child living, a son: and two grand-children, the children of a deceased daughter. Two questions were made: 1st, Whether the grand-children were entitled with the son: if so 2dly, Whether they should take per capita or per stirpes : MASTER OF THE ROLLS [Sir RICHARD PEPPER ARDEN]. This depends entirely upon the construction of the word "issue.' [* 258] Wythe v. Thurston, Amb. 555 (2), was *quoted. I have sent for the Register's Book, and shall not make my decree now, but will only state, that the report is not quite accurate as to the words. That case determines, that the word "issue" admits all the issue of the person, to whose issue the gift is made: but whether they were to take per capita or per stirpes may depend possibly upon the words, and not determine the point before me. Lord Hardwicke's decree fully establishes, that "issue" includes all the descendants. I will state the words in that case, as they really are. It is in the Register's Book of 1748 by the name of Wythe v. Blackman; and was upon a deed, not by will, as this is. The trust was, that the trustees should sell the said settled premises, as soon as conveniently might be ; and that the money thereby arising, together with the mesne profits of the said premises, should be equally divided between the said Mary Wythe, Dame Elizabeth Chancey, Ann Blackman, and Elizabeth Thurston, or the respective (a) Who are entitled under the description of "issue," see 2 Williams, Exec. 807-810. When employed in a will as a word of purchase, it will, in its ordinary import, comprise all who claim as descendants from or through the person to whose issue the bequest is made, that is, grandchildren and great-grandchildren, as well as children; and in order to restrain this usual sense of the word, a clear intention must appear upon the will. Ibid. 810, and cases cited; Dalzell v. Welch, 2 Simon, 319. But it has been held, when coupled with the word parent, to be a correlative term, and to be taken in the sense of "children." Ibid. See, also, Pearson v. Stephen, 2 Dow & Cl. 328; S. C. 5 Bligh, N. C. 203; Lees v. Mosley, 1 Y. & C. 589; Ryan v. Cowley, Lloyd & Goold, 7. In the present case the issue took as joint tenants, but in most of the States of the United States a joint tenancy cannot be created except by express words. See 4 Kent, Com. 362 (5th ed.) So a devise to a wife for life and after her death to nephews, has been held a tenancy in common in the nephews. Coleman v. Hutchinson, 3 Bibb, 209. See also M'Neilladge v. Galbraith, 8 S. & R. 43; M'Neilladge v. Barclay, 11 S. & R. 103, where property left to "poor relatives equally" was divided per capita. (b) As to joint tenants in chattels, see post, p. 628, note (a) to Morley v. Bird. (1) See the clause of the will stated in Boyle v. Hamilton, post, vol. iv. 437. (2) Reported also, 1 Ves. 196. issues of their bodies, in case they or either of them the said Mary Wythe, Dame Elizabeth Chancey, Ann Blackman, and Elizabeth Thurston, should be dead at such time, as there should happen to be a failure of issue male of John Thurston the younger, share and share alike to wit, to each of them or their respective children one fourth part thereof; and in the said indenture was contained a proviso, that if any of them, the said Mary Wythe, Dame Elizabeth Chancey, Ann Blackman, and Elizabeth Thurston, should happen to be dead without issue at such time, as there should happen to be a failure of issue male of the said John Thurston, then the money should be equally divided between the survivors of them and the said Mary Wythe, Dame Elizabeth Chancey, Ann Blackman, and Elizabeth Thurston, or their respective children, in case any of them be then dead, leaving issue of their bodies. The trust therefore was for those four persons, or the respective issues of their bodies. It does seem, that Lord Hardwicke divided it per capita among themselves; making stocks of the four sisters. But the words in that case are very different from those in this. Here it is contended, that the son shall take all; or if not, half: but it is clear, the grand-children are to take: the only doubt is, whether they shall take per capita or per stirpes (1). That is a matter, I shall not determine now. I am rather inclined to think, Lord Hardwicke's distribution arose from the particular words of the * deed. I shall examine that decree very strictly, before [*259] I decide that they are to take otherwise than as joint tenants of this fund. MASTER OF THE ROLLS [Sir RICHARD PEPPER Arden]. This cause depends entirely upon the construction of these words "to Mary Davenport or her issue." I apprehend, there is no doubt, that the word "issue" has ever been considered as embracing other objects than children; and the only remaining question is, whether they are to take per capita or per stirpes. It was contended, that though that embraces all, they shall not take per capita; but the fund must be divided according to the stocks, from which they are derived; and for that purpose Wythe v. Thurston was cited as a decision by Lord Hardwicke, that under similar words "issue" was held to comprehend all the descendants; but they were to take per stirpes. It is very shortly reported by Ambler; therefore I thought it necessary to look very accurately into the Register's book; from which I stated the case, when this cause came on before. When that is considered, the authority of that case does not in any degree militate against my opinion; and I repeat it, that it may not be supposed Lord Hardwicke meant to lay down, that the word "issue" would not comprehend all the descendants, and that they would not all take either as joint-tenants; or if the words "equally to be divided" were added, as tenants in common. It was upon the particular words of that case, that Lord Hardwicke confined the distribution (1) Barnes v. Patch, post, vol. viii. 604. to their rights per stirpes. That case was followed by Gale v. Bennett, Amb. 681; in which Lord Northington relied much upon the former decision. In those two cases Lords Hardwicke and Northington were of opinion, that all the issue should take; but not per capita but per stirpes: but those determinations arose from the peculiar words giving the fund first to the children, then, in failure of all issue, over to third persons. That leaves the question as to the import of the word "issue exactly, as if those cases were not determined; and I am now to determine upon the word "issue.” When used as a word of purchase, it has been always considered as synonymous to and the same as "descendants ;" and whoever can make himself out a descendant of the person, to whose issue the bequest is made, has a right to be considered as persona designata in that bequest. The very case occurred before Lord [* 260] Thurlow: Butler v. Stratton, 3 Bro. C. C. 367; * where upon the word "equally" they were held entitled in common; therefore I must suppose, if the word "equally" had not been added, they would have taken as joint-tenants (1). The word "issue," therefore, there being no particular words in this will, as there were in the two cases before Lord Hardwicke and Lord Northington, embraces all the descendants: and as there are no words of severance, nor any thing to show he meant they should take, not in their own rights, but as representing others, the son and the children of the daughter must be considered as personæ designate, and will take as joint-tenants. In Butler v. Stratton were cited Thomas v. Hole, For. 251, and Phillips v. Garth, before Mr. Justice Buller, 3 Bro. C. C. 64; and they are according to my opinion. The latter was upon the words "next of kin." Lord Thurlow did not doubt the principle, that they must take per capita, if intended; but doubted, whether those descendants from the next of kin were not excluded under those words. But I do not find any where, but that "issue" is a word of purchase, and embraces all descendants (2). 1. WITH respect to the varying construction of the ambiguous word "issue," see, ante, notes 1 and 2 to Hockley v. Mawbey, 1 V. 143. See also Horsepool v. Watson, 3 Ves. 384, and Freeman v. Parsley, 3 Ves. 423. 2. As to the words which create a tenancy in common, see note 4 to Perry v. Woods, 3 V. 204. 3. Whether, under a devise, children are to take per capita, or per stirpes, depends upon the previous question, whether they are to take in their own rights, or by representation; in the first case, they take per capita. Lady Lincoln v. Pelham, 10 Ves. 176; Blackler v. Webb, 2 P. Wms. 384; Northey v. Strange, 1 P. Wms. 342. Upon the latter supposition, they take per stirpes. Rowland v. Gorsuch, 2 Cox, 189. 4. In what cases grandchildren may take under bequest to "children," see note 5 to Bristov v. Warde, 2 V. 336. (1) Rigden v. Vallier, 3 Atk. 731. So "between them:" Lashbrook v. Cock, 2 Mer. 70. (2) Post, Freeman v. Parsley, 421; Reeves v. Brymer, vol. iv. 692, and the note 698; Sibley v. Perry, vii. 522; Barnes v. Patch, viii. 604; Radcliffe v. Buckley, x. 195; Bernard v. Montague, 1 Mer. 422, xi. 508, in the note; Leigh v. Norbury, xiii. 340; 3 Ves. & Bea. 67; 1 Mad. 387, 8; Crosley v. Clare, 3 Swanst. 320, n. BRADBURY v. HUNTER. [1796, Nov. 14, 15, 22.—Ante 187.] THIS cause, reported ante, 187, was again brought on under the permission then given by the Lord Chancellor, that the decree should rest in minutes some time for that purpose. It was re-argued by the Attorney General [Sir John Scott] and Mr. Whishaw, for the Plaintiffs, and Mr. Mansfield and Mr. Lloyd for the Defendants. For the Plaintiffs it was pressed, that at least there should be an inquiry into the circumstances. The Lord CHANCELLOR [LOUGHBOROUGH], after the conclusion of the argument for the Plaintiff, threw out the following observations: Without prejudicing the argument, that may come on, I will repeat the ground, that struck me. I consider the Defendant, not as a mere volunteer, but as a remainder-man. He has a right to have that estate, which was contracted for. His [261] father covenanted to lay out a certain sum in discharging incumbrances. The fact is, that in breach of that covenant part of those incumbrances has affected the inheritance of the estate. A person, who contracted with Mr. Hunter for the execution of his power, would have had a better right than the remainder-man under the settlement: but Mr. Hunter having broken that covenant could not voluntarily charge. It would not be general assets. He could not charge for himself. The execution of the power, after he broke his covenant, must be supported by the bona fides of the person, in whose favor he executed it. If money had been actually advanced, that would have supported it. Upon looking into the evidence, the party applying appears under circumstances, that makes it very difficult for the Court to allow him to proceed. A mere purchaser of an annuity, at the distance of two or three years he tries to catch in this security he takes a mortgage, not only for the money advanced, but for all the money in arrear; and having taken this security, he retains to himself all the annuity securities; therefore he might choose to be an annuity creditor, if Mr. Hunter's funds were good; but if Mr. Hunter dies before any thing farther is received upon the annuity, he turns round, and chooses to come in under the power. It appears to me, upon the report, that he chose to put the case two ways before the Master. The remainder-man stands in a favorable situation; his estate having been by the improvidence of his father charged beyond the sum, with which it was contracted that it should be charged. : : Nov. 22d. Lord CHANCELLOR. In this cause I have had great satisfaction in the case having been re-argued not that I felt myself impressed with any different idea from that I had taken up; but I have the satisfaction to know, that it is impossible, that the case could be more ably argued, or more investigated; and that the * opinion, I have formed, is formed upon the fullest information, the Court can receive. When this first came on, I was not much acquainted with the causes of Creuze v. Hunter and The Bishop of London v. Hunter (1). I was only acquainted with some of the circumstances, that had occurred in the Master's office. I then hesitated, whether this claim was proper as an original bill. [*262] Upon looking into those two causes, that doubt is greatly strengthened; for upon looking into them it appears, that all the parties were brought before the Court; and the question raised in this cause was very fully in issue: it was in fact decided; and properly and competently decided; for, whatever claim these Plaintiffs could make, there was a means of having it fully investigated in every view, in which it could be put; and a full decision could have been given upon it. The state of the case however represented, that the question as between the remainder in tail and the trustees of Mr. Shepherd had not been fully discussed; that the right, they would have to come upon the remainder in tail, was not distinctly before the Court; and one point was stated, which, if it had been made out, I think would have been a good ground for an original bill; that in the result the life estate of Mr. Hunter had paid a sufficient sum of money in aid of the inheritance to give him a right to charge the 4000l. upon the estate of his son. If that had been made out, that would have been a good foundation to have entertained the bill. Upon investigation of the fact however it turned out, that it was otherwise: and the clear result of the examination has been, that Mr. Hunter had left undischarged of incumbrances, that he was bound to discharge, a sum of at least 5000l. Without going farther into the objection, that might have been made to the competency of this suit as an original cause, take it upon its own merits. The Plaintiffs coming here, having no legal right, to raise under the authority of this Court the sum demanded upon the settled estate, which Mr. Hunter had covenanted should go to his son clear of incumbrances, at least to a certain extent, the first consideration is, whether the Plaintiffs can show in equity any title to affect that interest, which this Court is always bound to protect; the interest of a remainder-man in tail, who is a purchaser under the marriage settlement, and is entitled to the protection and aid of this Court to have that estate contracted for in the settlement, and distinctly for valuable consideration. The settlement made upon the marriage of Mr. Hunter was under the circumstances perhaps a little difficult to have accomplished. He had a large estate, but incumbered by his father having mortgaged, and with portions upon it. The lady, he was about to marry, was entitled to a large fortune. The parties chose * to do what appears at first view a very indiscreet thing. Mr. Hunter was known to have granted annuities upon the estate, of which he was tenant in fee. It was very important to [* 263] (1) 4 Bro. C. C. 157, 316; ante, vol. ii. 157. |