Will-General Intent the issue of my Body' For default of such [Law Reports, 7 Exchequer, 339.] Estate to be enjoyed by one Person —“ All and every other Other the Issue"- Words of exclusion or completion — Issue." A testator devised his hereditaments to his son for life, with remainder to F., his son's eldest son, for life, with remainder to the first and other sons of F., successively in tail male; and for default of such issue, to R., the second son of his son, for life, with remainder to the first and other sons of R., successively in tail male and for default of such issue, to the third, fourth, and other sons of his son thereafter to be born successively in tail male; and for default of such issue, to his daughter I., for life, with remainder to her first and other sons in tail male; and for default of such issue, to his granddaughter E., for life, with remainder to her first and other sons in tail male; and for default of such issue, to his granddaughter J., for life, with remainder to her first and other sons successively in tail male; and for default of such issue, to his grand daughter S., for life, with remainder to her first and other sons successively in tail male; and for default of such issue, to all and every the fourth and fifth and other daughter or daugh ters of his son successively, and in renin ler one after another, and to the heirs males of their bodies; and for default of such issue,"to the use and behoof of all and every other the issue of my body;" and for default of such issue to his right heirs. The will also contained a wish that the estates should be retained in the hands of one person, and should not be dispersed, and a provision that any female who inherited should with her husband (if married) assume the testator's name and arms under the penalty of forfeiting the estates. A muniment box was directed to go to the person entitled from time to time to the estates: Held, 1st, that the words "issue of my body" in the penultimate limitation, were to be read in the same sense as "heirs of my body;" 2dly, that, having regard to the whole will, that devise could not be read as giving the estate per capita in joint tenancy to all who came within the class at the time the estates vested in possession; 3dly, that the words "all and every" did not import that all were to take at the same time, but were satisfied by all taking in succession; and 4thly (Bramwell, B., dissentiente), that the word "other" was to be read not as a word of exclusion, but of completion; and that upon these principles of construction, there was, by virtue of the penultimate limitation, a vested remainder at the death of the testator in tail general to which his son then became entitled. This remainder descended to F., who duly executed a disentailing deed. He devised the estate to the defendant's father, from whom it descended to the defendant. In actions of ejectment (a), by persons claiming as issue of the body of the testator as joint tenants per capita at the time the estates vested in possession (b), by the heiress in tail general of the testator at the same period (c), by the heir of the survivor of all the issue of the testator living at his death (other than these included in the particular limitations), and (d) by the heir in tail of the tes tator at his death, these being excluded who came within the particular limita tions: Held, that the defendant was entitled to judgment. Mandeville's Case (Co. Litt., 26 b), considered. SPECIAL CASES stated in four actions of ejectment brought to recover possession of fourteen forty-eighth parts of a farm and lands called High Letham, in Berwick-upon-Tweed. 340] *Sir Francis Blake, Bart. (the first baronet) was at the date of his will (the 8th of March, 1789) and of his death (the 29th of March, 1780) seize 1 in fee of the farm and lands in ques tion, and of certain other property, including his two mansions of Twizell Castle and Tilmouth Park, then in the county of Durham (but now in Northumberland), and also of the reversion of several estates in the county of Durham expectant upon the failure of issue male of his eldest son Francis (the second baronet). At the date of the will the first baronet had living two children, namely, Francis and Isabella. The second baronet had at that time five children living, namely, Francis (third baronet), Robert Dudley, Elizabeth, Isabella, and Sarah. By his will the first baronet, after charging all his manors, castle lands, &c., with certain payments (which were afterwards duly made) and creating a term of 1000 years upon certain trusts which were afterwards satisfied) devised his hereditaments to the use of his son Francis for life, with remainder to trustees during the life of Francis, to preserve contingent remainders, with remainder to the use of Francis, eldest son of the second baronet (the third baronet), for life, with remainder to the first and other sons of the third baronet successively in tail male; and for default of such issue, to Robert Dudley Blake, second son of the second baronet, for life with remainder to his first and other sons successively in tail male; and for default of such issue, to the third, fourth, and other sons of the second baronet thereafter to be born successively in tail male; and for default of such issue, to Isabella Blake, the testator's daughter, for life, with remainder to her first and other sons successively in tail male; and for default of such issue, to Elizabeth Blake, eldest daughter of the second baronet for life, with remainder to her first and other sons successively in tail male; and for default of such issue, to Isabella Blake, second daughter of the second baronet, for life, with remainder to her first and other sons successively in tail male; and for default of such issue, to Sarah Blake, third daughter of the second baronet, for life with remainder to her first and other sons successively in tail male; and for default of such issue, to all and every the fourth, fifth, and other the daughters of the second baronet successively for life, and with remainders to her heirs male of their bodies respectively; and" for default of such issue to the *use and [341 behoof of all and every other the issue of my body lawfully to be begotten; and for default of such issue, to the use and behoof of my own right heirs for ever." The testator also, after reciting that the reversion in fee of the several estates in the county of Durham was vested in him and his heirs upon failure of the male line of the second baronet, further gave and devised all and every the estates to which he was so entitled in reversion in case of failure of the male line of the second baronet to the trustees and their heirs to, for, and subject to such and so many of the uses, &c., in the will before expressed and declared of and concerning his other real estates by his will before devised on failure of issue male of the said second baronet, as should then be in existence undetermined or capable of taking effect. Immediately after the last mentioned devise the following words occurred: "And thus having at least expressed a very natural desire to continue my name and property upon a respectable footing, and to prevent as far as may be the dispersion of my estates amongst several persons, and to keep up my name and family in one person, I do hope that the person into whose hands my estates shall come, whether by virtue of this my will or by means of fines or recoveries, or other acts in the law defeating the uses and limitations of the present entails or otherwise howsoever, will be equally ready to adopt the plan for the purposes aforesaid." The will also contained a proviso making it incumbent on the females in the line of descent, when married, to return, and on their husbands to take, the name and arms of Blake as and when they should respectively come into possession of the estates, and in case of neglect or refusal so to do, the person next in remainder was to take the property. Further, there was a clause whereby the testator declared his wish to be that a certain iron chest or muniment box should go to the person entitled to his real estate from time to time. On the testator's death the second baronet entered on possession of the family estates, including High Letham, and so continued until his death in June, 1818, when he was succeeded by the third baronet, who remained in possession until his death in August, 1860. The second baronet also left two other sons 342] surviving him, *viz., Robert Dudley and William, and one daughter, Eleanor Ann. Isabella Blake, the eldest daughter of the first baronet, and Elizabeth, Isabella, and Sarah Blake, daughters of the second baronet, died unmarried in the second baronet's lifetime. In the year 1834 the third baronet executed an assurance for the purpose of barring a certain estate tail in certain messuages and lands (including High Letham), which estate tail was thereby recited to be vested in him by the will of the first baronet expectant on the failure or determination of the estates in tail male limited to the use of the first and other sons of the third baronet, and the death and failure of issue male of his brothers Robert Dudley and William and his sister Eleanor Ann, and all reversions and remainders thereon expectant or depending. On the 15th of October, 1845, the third baronet made his will, whereby, after reciting that under his grandfather's will and other acts and assurances he was entitled to the remainder in fee of certain manors, messauges, &c. (including High Letham), he devised the whole of those manors, messauges, &c., subject to the estates limited by his grandfather's will, to one Francis Blake for life, with remainder to his first and other sons in tail male. Francis Blake died intestate in July, 1861, leaving the defendant, his eldest son and heir at law, him surviving. Robert Dudley Blake and William Blake died without issue in the lifetime of the third baronet. Eleanor Ann intermarried with one Bethel Stag, and on the death of the third baronet entered into possession of the family estates, assuming at the same time the name and arms of Blake. She died on the 12th of August, 1869, without issue male, but leaving a daughter, Eleanor Ann Roach, her surviving, who was also heiress at law to the first, second, and third baronets. She was the plaintiff in the second action. Besides his daughter Isabella, the first baronet had another daughter Sarah, who died before the will was made. She married one Christopher Reed, and had numerous issue. The plaintiff in the third action, Perceval Fenwick Clennell, was het grandson. The mother of Perceval (Sarah's daughter), was the survivor of all the issue of the testator living at his death, other than those included in the particular limitations, and this plaintiff, as her heirs, *claimed the entirety. He also joined in [343 the first action, and claimed in the manner indicated below. In the fourth action the claimant was Francis Reed, a grandson of Sarah Reed. He claimed the entirety as heir in tail of the testator at his death, all those being excluded who came within the particular limitations, i.e., his claim was the same in character as that of Eleanor Ann Roach, except that he claimed as upon a remainder vested at the death of the testator, whereas in Mrs. Roach's case the remainder was contingent. The plaintiffs in the first action were among the issue of the body of the testator of the line of Sarah Reed, and claimed the property as joint tenants under the penultimate limitation in the will. The estate, they contended, was given per capita under that limitation to all persons who came within the class at the time of the death of Mrs. Stag in 1869. The questions for the court in the several actions were, whether any, and which, of the plaintiffs in those actions respectively were entitled to recover. The case was argued on April 29, May 1, and May 2, 1872, by the following counsel: For the plaintiffs in the first action: Sir R. Pulmer, Q.C. (Manisty, Q.C., Waley, and Bruce with him); For the plaintiff in the second action: Sir G. Jessel, Q.C., S.G., (W. H. Bagshaw and Wallis with him); For the plaintiff in the third action: H. F. Bristowe, Q.C., (Harrison Dalton with him); For the plaintiff in the fourth action: Pollock, Q.C. (Day, Q.C., with him); For the defendant in these four actions: Sir J. B. Karslake, Q.C., and Charles Hall (Kemplay, Q.C., with them). There was also a fifth action brought by the plaintiffs in the first action in respect of other property against another defendant, who also claimed under the will of the third baronet, and whose interest was therefore identical with that of the defendant in the other actions. For him Williams, Q.C., (Trevelyan and C. Browne with him) appeared. 344] *The course and nature of the arguments sufficiently appear from the judgment. For the plaintiffs in the first action the following authorities were cited: Lewis on Perpetuities, pp. 663–671; 2 Co. Litt., by Hargreave and Butler, 272 a, note (1), s. 5; Prior on Issue, book i. pp. 6, 12, 26; Jarman on Wills, 3d ed. vol. ii. pp. 56, 89–91, 143; Lee v. Busk (); Nicholls v. Sheffield (2); Heasman v. Pearse (3); Ranelagh v. Ranelagh (4); Lewis d. Ormond v. Waters (5); Surtees v. Surtees (); Greene v. Ward (); Davenport v. Hanbury (8); De Windt v. De Windt (9); Wright v. Vernon (10); Bernard v. Montague (11); Cooper v. Pitcher (12); Freeman v. Parsley (13); Dalzell v. Welch (14); Cook v. Cook (15); Rowland v. Morgan (16); Knight v. Selby (7); Whitelocke v. Heddon (1); Atkinson v. Holtby (19); Clavering v. Ellison (2); Egerton v. Earl Brownlow. (21). For the plaintiff in the second action were cited Co. Litt. by Hargreave and Butler, 19 a, 20 b, 22 a, 24 b, and note to 24 b; Fearne on Contingent Remainders, p. 180; Cruise's Digest, vol. i. p. 69; Whitelock v. Heddon (18); Mandeville's Case. (22) For the plaintiff in the third action were cited Jarman on Wills, 3d ed. vol. i, p. 758; White v. Coram (23); Morgan v. Britten. (4) For the plaintiff in the fourth action were cited Jarman on Wills, 3d ed. vol. ii, p. 77 Whitelock v. Heddon (18); Grey v. Pearson (25); Lees v. Mosley (26); Roe d. Dodson v. Grew ("); (14) 2 Sim.. 319. (20) 3 Drew., 451. (22) Co. Litt., 26 b. (2) 3 K. & J., 652. (24) Law Rep., 13 Eq., 28. (25) 6 H. L. C., 61, at p. 68. |