Raggett v. Beaty, (a) where a testator devised a messuage to the use of G. (the second son of his nephew J.) to enter upon and possess the same after the decease of his father, and he directed the said J. and G. to pay the sum of £100 within one year after his decease to A and B upon certain trusts; but in case they did not pay the said sum, he ordered A and B to let the premises and receive the rents until the £100 should be paid, they keeping possession of the deeds and not allowing the said J. & G. either to sell or mortgage any part of the premises until the legacies were all paid, and G. was twenty-one years of age; or, if in case the said G. should die and leave no child lawfully begotten of his own body, it was his will that the said A and B, their heirs and assigns, should sell the premises and distribute the money arising therefrom amongst his (the testa tor's) brothers and sisters and C and D, or their heirs, [324] in such shares as the trustees should think proper. The question sent for the opinion of the Court of Common Pleas was, what estate G. had upon the death of his father. It was contended that G. took an estate tail as the result of the apparent intention, that the estate should not go over, unless there was an ultimate indefinite failure of issue of G.; and the cases relied upon for this construction were those in which words importing a failure of issue had been so construed. On the other side it was argued, that the intention to be collected from the whole will was, that G. should take an estate in fee, with an executory devise over in case of his not leaving issue at his death; and the argument for holding the devisee to take a fee was founded mainly on the testator's direction to the devisees to pay the £100; and no attempt seems to have been made to distinguish the word "child," as used in this devise, from the word "issue," which occurred in the cited cases. The Court, however, certified that G. took an estate tail. This is the most signal instance in which an estate tail has been created by a devise over in case of the prior devisee leaving no child, though the tenor of the authorities discussed in the present chapter and some others, especially Doe v. Webber, (b) (in which Lord Ellenborough made very little difficulty of construing the word "children" in such a position as synonymous with issue,) had certainly paved the way to such a result. An example of this species of construction has since occurred, (though with an assisting context,) in the case of Doe d. Simpson v. Simpson, (c) where a testator gave certain lands to his son A, his heirs and assigns forever; but if it should happen that A should die (a) 2 Moo. & Pay. 512. (b) 1 Barn. & Ald. 713. See also Hughes v. Sayer, 1 P. W. 534, ante, p. 37; Wyld v. Lewis, 1 Atk. 432, post. (c) 5 Scott, 770. without leaving any child or children, he devised the estate to B, C, D, E, and F, their heirs and assigns forever as tenants in common, with a limitation over to the [325] survivors in case of any of them dying under age and without issue. And the testator in a certain event devised other property, subject to the same mode of distribution, among the five devisees over as the before-mentioned property given to A "in case he died without issue." It was considered by the Court that the testator had, by the latter clause, expressly declared the meaning of the prior devise to be if the first taker should die without issue. (a) An instance of the word "child" being construed as qualifying the word " heirs" in the preceding devise, is afforded by the case of Doe d. Jearrad v. Banister, (b) where a testator devised a certain property to A and her heirs, if she has any child; if not, after the decease of herself and her husband, then to B and her heirs. It was contended that it was a devise in fee upon the condition of A having a child; but the Court of Exchequer held that she was tenant in tail. But, it is not to be inferred from the preceding [326] cases, that a devise, definitely pointing out the eldest, or any other individual son, will (unaided by the context) have the effect of conferring an estate tail on the parent; and this remark is advanced without losing sight of the case of Chorlton v. Craven, (c) where the devise was to Thomas Chorlton during his natural life, with remainder to the first son of the body of the said Thomas in tail male, lawfully begotten, severally and successively; and for want of such lawful issue, either of his son Thomas Chorlton and his son James Chorlton, then the testator devised the estate to his daughters and their children, share and share alike. The Court of King's Bench, on a case from Chan-. cery, certified Thomas to be tenant in tail male; (d) which was (a) A strong instance of refusal to construe the word "issue" as synonymous with children, occurs in the case of Malcolm v. Taylor, 2 Russ. & Myl. 416, as the testator had, in reference to another subject-matter, clearly used the word issue in that sense. A bequeathed the residue of her funded property and her plate to B and C for their lives, and after the decease of the survivor, to such of the children of C as she should by deed or will appoint, and in default of appointment the residue of the money in the funds to be equally divided among the said children; and in case C should die without issue as aforesaid, the testatrix bequeathed her funded property and plate to certain persons. It was held that the words, "without issue as aforesaid," in reference to the funded property, meant without such issue as were objects of the prior gift, i. e. children, but that as to the plate, of which there was no gift to the children of C, the words were to be construed as importing a general failure of issue, and consequently that C was absolutely entitled. (b) 7 Mees. & Welsby, 292. See Goodtitle d. Cross v. Woodhull, Willes, 592. (c) 2 Barn. & Cress. 524; S. C. 3 Dowl. & Ryl. 808. (d) The fact of the devise being held to confer an estate tail male, (which appears by the statement in one of the reports, Dowling & Ryland's, only) is important, as This power, it is observable, was not considered to raise an implied trust for the children as to the plate.. confirmed by the Chancellor, and in 1823 the Court of Exchequer came to the same decision upon the same devise. In this case, probably, the words "severally and successively" may have assisted the conclusion at which the Court arrived, but these words would have more force if the devise were in the exact terms of the brief statement which has been handed down to us than if the estate tail were created in more formal language-i. e. by a devise to the eldest son, and to the heirs male of his body, in which case the words in question would seem to refer to the mode of taking by the heirs; otherwise they give rise to a strong suspicion that a devise to the second and other sons successively in tail was inadvertently omitted. [327] The absence of all information as to the precise grounds of the decision greatly detracts from its value as a general authority. A question of this kind was much discussed in the recent case of Doe d. Burrin v. Chorlton; (a) where a testator devised a messuage to his kinsman S. C. for his life, and after his decease to the eldest son of S. C., but for want of such issue, then to his (S. C.'s) daughters or daughter, share and share alike, forever; but in case his said kinsman had no issue, then to hold to S. C., his heirs and assigns forever. It was contended, on the authority of the last case, that the word "son" was to be construed as nomen collectivum; and consequently that S. C. took an estate tail male, precedent to the general estate tail, which was assumed to arise by implication from the words referring to a failure of issue in the devise over. (b) But the Court decisively negatived this construction, being of opinion that neither the devise to the eldest son alone, nor the words "for want of such issue" following such devise, created an estate tail. In none of the cases had there been that strict reference to a single individual which occurred in the case before the Court, except in Chorlton v. Craven, where considerable weight was probably attached to the expressions "severally and successively." showing that the devise to the son had some influence on the decision; as the subsequent words, if they had led to this result, would seem to have pointed to an estate tail general. (a) 1 Scott's New Rep. 290; S. C. 1 Mann. & Grang. 429. And see Foord v. Foord, 3 B. P. C. (Toml. ed.) 124. (b) Ante, vol. 1, p. 487. 239 CHAPTER XL. ISSUE," WHERE CONSTRUED AS A WORD OF LIMITATION. I. Devises to a Person and his Issue. Effect of Words creating a Tenancy in Common,-of Words of Limitation in Fee Simple, and other modifying Expressions. II. Devises to A for Life, with remainder to his Issue. Effect, in these Cases of, 1. Superadded Words of Limitation. 2. Words of Distribution and Modification inconsistent with an Estate Tail. 3. Clear Words of Explanation. Issue synonomous with Sons and Children. 4. Devise over in case of failure of Issue at the Death. "ISSUE" a word of limitation, when. Devise to A and his issue simply, [p. 329.] To A and his next or eldest issue male, [p. 329, note.] To A and his issue living at his death, [p. 330.] Effects of words of modification inconsistent with an estate tail, [p. 330.] To A and his issue, as tenants in common, but in default of such issue, or in case they should die under twenty-one, over, [p. 332.] To H. and his issue, his, her, or their heirs, equally to be divided, [p. 333.] Remarks on Doe v. Burnsall, and Doe v. Elvey, (p. 333.] To A and to his issue, and to the heirs of such issue, [p. 334.] To A for life, remainder to the issue of his body, [p. 335.] Issue held to be a word of limitation, [p. 336.] Effect of words of limitation superadded, [p. 336.] To the heirs male of the body of such issue male, [p. 337.] To the heirs male of the body of the issue male, [p. 337.] Observations upon Roe v. Grew and Backhouse v. Wells, [p. 338.] To A for life, remainder to his issue male and their heirs, [p. 338.] Remark on Loddington v. Kime, [p. 339.] To S. for life, remainder to her issue and their heirs, [p. 339.] Remark on Doe v. Collis, [p. 340.] To A for life, remainder to his issue and to the heirs and assigns of such issue, [p. 340.] To B for life, remainder to his issue male and their heirs, [p. 341.] Remark on Mogg v. Mogg, [p. 341, note.] To the children of A for life, remainder to their issue and their heirs as tenants in common, [p. 342.] Words "in default of such issue" inoperative to vary the construction, [p. 342.] To W. for life, remainder to and amongst his issue, and in default of issue, over, [p. 344.] Remark on Doe v. Applin, [p. 344.] To R. for life, remainder to his issue as tenants in common, Issues jointly to inherit, [p. 345.] Influence of words introducing devise over, [p. 345.] with devise over, [p. 344.] Devise over in case no issue lived to attain twenty-one, [p. 346.] Case of Merest v. James examined, [p. 347.] Power of distribution in fee in favor of issue and limitation over, in case of being no issue who should attain twenty-one, [p. 348.] Judgment of Mr. Baron Alderson in Lees v. Mosley, [p. 349.] Remark on Lees v. Mosley, [p. 350.] "Issue" considered to be a word of limitation, [p. 351.] Remark on Tate v. Clarke, [p. 352.] " Whether issue," where a word of purchase, is confined to children, [p. 352.] "Issue" explained to mean sons, [p. 353.] Issue not restricted to children, [p. 353, note.] "Issue," explained to mean children, [p. 354.] "Issue" explained to mean children, [p. 355.] Effect where "issue" and "children" have elsewhere been used indifferently, [p. 355.] Special construction of issue living at the death, in an executory trust, [p. 355, note.] Uniformity of construction on recurrence of same word, [p. 356, note.] "Children held to mean issue," [p. 357.] Bequest to children made to govern prior gift to "issue," [p. 357.] "Issue," held to mean children by reference to another gift, [p. 358.] Remark on Peel v. Catlow, [p. 359.] Limitation over, if the devisee leave no issue at his death, [p. 359.] Bequest over on failure of issue at the death, following bequest to A and B and their issue, [p. 360.] I. "ISSUE" is nomen collectivum, and a word of very extensive import. The term embraces descendants of every degree whensoever existent, and, unless restricted by the context, cannot be satisfied by being applied to descendants at a given period. The only mode by which a devise to the issue can be made to run through the whole line of objects comprehended in the term, is by construing it as a word of limitation, synonymous with heirs of the body, by which means the ancestor takes an estate tail; an estate capable of comprising in its devolution, though not simultaneously, all the objects embraced by the word "issue" in its largest sense.1 [ 329 ] Opinions certainly have differed as to the signification of the word issue. It has been denominated by some Judges and writers a word of limitation; and a devise to A and his issue has even been stated by an eminent * Judge as "the aptest way of describing an estate tail according to the statute;" (a) by others, "issue" has been called a word of purchase, or an ambiguous word. (b) However, it is not from such dicta that the true legal acceptation of the word is to be collected, but from the adjudication fixing its operation. Unhap (a) Per Lord Thurlow, in Hockley v. Mawbey, 1 Ves. Jun. 149. (b) See judgment in Ginger d. White v. White, Willes, 348; Roe d. Dodson v. Grew, 2 Wills. 324; Doe d. Cooper v. Collis, 4 Durn. & E. 299; Earl of Orford v. Churchill, 2 Ves. & Bea. 67; Lyon v. Mitchell, 1 Madd. 473; Tate v. Clarke, 1 Beav. 105; Doe d. Gallini v. Gallini, 3 Adolph. & Ell. 340. 1 See Sibley v. Perry, 7 Ves. (Sumner's ed.) 522, Perkins's note (a), and cases cited. When the word "issue," or the words "heirs of the body," are used in a devise, they must have one of two meanings; either the indefinite lineal succession of heirs of the body, or the particular individuals who, at a given time, answer the description of issue. Ferrill v. Talbott, Ril. Ch. Ca. 247. The words "lawful issue" have as extensive a signification as "heirs of the body," and embrace lineal descendants of every generation. And when used in a devise, by which the immediate devisee takes an unrestricted freehold, it is a word of limitation, and has the same effect as "heirs of the body." Kingsland v. Rapelye, 3 Edw. 1. |