, s. 3)—the heirs of the testator who took under the ultimate limitation would take by descent and not as devisees, this makes no difference as to the intended effect of the previous limitations which we are now considering.

It will be noticed that every estate tail in the will is followed by the words, "and in default of such issue;" and it was said that as those same words followed the penultimate limitation, it is reasonable to read them as embracing the same idea, viz., the failure of estates tail; and it was argued, and we think with great force, that if you once come to the conclusion that the penultimate limitation operates as a devise in tail, it almost follows that successive estates tail were intended, and not so unusual and inconvenient an ar rangement as joint estates tail in any number of persons, especially when the testator indicated so clearly his wish that the estate should not be divided.

In answer to the argument that in a will carefully framed, and in which every estate tail was created by the proper technical words, the penultimate limitation alone contained a devise to "issue," it was pointed out that the frequent repetition of the words," in default of such issue," after each devise in tail shewed that the word "issue" was throughout used as embracing all the heirs of the body. The defendant also relied upon the clause already referred to in which the testator expresses his wishes as to the conduct to be pursued by his successors. And it was said that, if the testator's mind was directed to the time when the limitations in the will should enable those who took the estate to make fresh settlements and so prevent the dispersion of the property, he must have intended (so far as his own will could do so) to carry this into effect, and the penultimate limitation therefore ought to receive a construction which would carry that into effect.

The language of the clause is very comprehensive. For the hope expressed is that the persons into whose hands the estate shall come, whether by virtue of the will or by means of fines and recoveries, shall be ready to adopt his plan for keeping up the name and family in one person; and this includes all who take

estates tail whether under the will or by means of fines and recoveries.

The name and arms clause indicated, it was said, distinctly the same intent, and the clause relating to the muniment box was also referred to as not immaterial, and particularly the language of it, viz., as that it should go to the persons entitled to the estates from time to time.

It was contended on behalf of the plaintiff that the object of the testator was sufficiently carried into effect by the various specific limitations preceding the penultimate one, and that an adequate effect having been given to that intention it was unnecessary to employ it in construing that limitation, more especially when the construction contended for was contrary to the proper meaning of the words used; and further that the clause relating to the conduct of his devisees shewed what he wished the first and other tenants in tail to do, and had no reference to the multiplying the tenancies in tail. It was also pointed out that the forfeiture by which the name and arms clause was enforced was inapplicable to any persons who took under the penultimate clause, and also that the clause relating to the muniment box was of little effect since it would vest absolutely, being a personal chattel, in the first tenant in tail for want of the intervention of the usual trustees to make it an heir loom.

So far as this part of the argument is concerned we think there does appear clearly upon the face of the will and throughout it, an intent on the part of the testator so to limit the estate as to keep the estates and name and family in one person, and that all the devises and particular limitations are introduced as subordinate to and for the purpose of carrying into effect this general intent. And having adverted to the arguments on both sides we do not think it necessary to recapitulate them in favour of this conclusion, but we may say in reference to those on the other side that the existence of this intent is not negatived by some of the provisions introduced for the purpose of carrying it into effect being imperfect in their operation.

We had brought before us many authorities for the purpose of shewing to what

extent the Courts and the House of Lords had gone in construing particular provisions, so as to carry into effect what has been called the general intent; and how, in some cases, words have been rejected, and a particular intent expressed by them has been sacrificed.

Two of the latest authorities have certainly a strong bearing upon the present case, and may well be noticed-Jenkins v. Hughes (33) and Byng v. Byng (34). In the first there was a clause corresponding with the clause in the present case, expressing the testator's wish as to the conduct of his successors, and in the second there were clauses corresponding with the name and arms clause, and the clause as to the iron chest. In Jenkins v. Hughes (33), the ninth clause in the will contained the following words: "My express will and desire being that my estates do always descend in the male line;" the question being whether the great-nephew of the testator took an estate tail by force of certain words, which, taken by themselves, would have a different operation. Lord Cranworth says-"But the general emphatic direction contained in the ninth clause seems to me to justify us in holding the true construction of the will to be, that Thomas took an estate in tail male.'

In Byng v. Byng (34), the will contained a name and arms clause, and also a clause directing that Holbein's portrait of Archbishop Cranmer and other chattels should go as heir-looms with the estate. The devise was to A. B. and his children. As there were several children born at the time of the devise, the effect of the devise, taken by itself, was to make children a word of purchase, and to make the children take as joint tenants with A. B., according to Wild's case (35)." Lord Cranworth's language is remarkable in its application to the present case (55)—“There are two passages in the will which bring me to the conclusion that the testatrix could not have contemplated a joint tenancy among the niece and her children." He then refers to and reasons upon the name and arms clause, and at the end of the paragraph says "For these reasons, I think that the direction to take the name and

(55) 10 H.L. Cas. 181.

NEW SERIES, 41.-EXCHEQ.

arms clause tends strongly to shew an intention to keep the estates in a single line of enjoyment, and not to divide them among an indefinite number of objects." The other passage alluded to is that making the portrait and other chattels heir-looms; and he refers to that as suggesting arguments of greater weight than the other. the other. Lord Kingsdown, who says that he had given to the case an anxious consideration, having at first had a different impression, refers (56) to both the above matters as aiding in the construction, and the result was that the word "children" was held to be a word of limitation.

It is not at all necessary, in the present case, to act upon the rule of carrying into effect the general intent to the extent to which it has been acted upon in such cases as Doe v. Applin (28) and Doe v. Cooper (31), where a particular provision clearly expressed has been rejected.

The utmost extent to which, if at all, it need be applied is that modified form to which it is limited by Lord Redesdale in Jesson v. Wright (57), and has been approved of by the Queen's Bench in Doe v. Gallini (58), viz., that technical words shall have their legal effect, unless from subsequent inconsistent words it is very clear that the testator meant otherwise. And if the words of the penultimate limitation had by the force of certain decisions acquired technically the sense of a distribution in joint tenancy, we should feel justified in departing from that sense when so clearly opposed to the intent of the testator, and giving them any other sense which they would fairly bear. In reality, when we are dealing with a will, which is one document expressing all the intentions of the testator, and which ought therefore to be read as a consistent whole, if a question arises as to the effect of a particular clause, the language of which is by possibility susceptible of two meanings, we are naturally and almost irresistibly influenced by the impression derived from the whole will, of what the main object and intent of the testator was in making it, assuming of course such an object and

(56) 10 H.L. Cas. 187. (57) 2 Bligh, 51. (58) 5 B. & Ad. 621,

2 G

intent to be apparent upon the face of it. And it is perhaps in this way that the general intent has been so much acted upon.

To come now to the words of the penultimate limitation: "To all and every other the issue of my body." It was contended on behalf of the plaintiff, that in general a devise by a testator to his issue gave an estate to all his issue-children, grandchildren, &c., as joint tenants in fee, and that all came within the devise who were in existence at the time of vesting in possession.

Many authorities were mentioned in which this rule had been followed in cases of personalty. Davenport v. Hanbury (8), and other cases collected in 2 Jarman, 89, 90; and to some extent the same rule followed in cases of realty-see Cook v. Cook (16); and the word "estate" was referred to as incorporated in the devise so as to carry the fee without any words of limitation. But without relying upon any general intent, it has never been questioned that words ought to be construed by or along with the context of which they may be said to form part. Now we find in the will before us a long series of devises specifically carrying the estate through all the lines of one part of the testator's issue, each line being followed by the words "in default of such issue," and upon failure of all those lines, there is a devise to all and every my other issue, and afterwards in default of such issue, a devise to his right heirs in fee. We think it would be unreasonable to hold that, because the specified male lives had been exhausted, the word "issue" was to be read in a different sense from the sense in which it had been used so often before, and that the whole series of devises were not to be read as consecutive limitations of the same estate. The ultimate limitation in fee we read as dealing with the same estate as all the previous limitations, viz., the whole estate as one, and the failure of issue is the failure of issue to take the whole, and not several parts. It was suggested on the part of the plantiff that the ultimate limitation might he read, not as a remainder upon the previous estate, but as intended to provide for the case of there being no

one to take under all the previous limitations at the testator's death. We think this wholly inadmissible, for without referring to the state of the testator's family there are many separate devises to his living children and grandchildren, besides others to their issue unborn.

The ultimate limitation in fee is a great difficulty in the way of the plaintiff's contention, and the effect of it cannot be got rid of in the way suggested, or, as far as we can see, in any other way. It was urged for the plaintiff's that properly the word "issue referred to procreation, not to inheritance, the word "heirs" to inheritance and not procreation, and the words "heirs of the body" to procreation and inheritance. But though this is the pri mary sense of the words taken by themselves, yet we know frequently the word "heirs" taken with the context becomes "heirs of the body," and the word "issue" --when used in a will in connexion with previous life estates and with limitations in default of issue-generally refers to inheritance as well as procreation, and is equivalent to "heirs of the body." We see no reason to doubt that the remark upon the case of King v. Melling (38) quoted by Mr. Hayes in his "Principles for expounding Dispositions of Real Estate," is applicable to the present case. It is found in table 3: "It has been established ever since the case of King v. Melling (38) that in a will the words 'issue of the body' are as strict proper words of limitation as heirs of the body,' and equally give an estate tail in lands legally devised-per Lord Hardwicke. We see no reason why the words must receive a different meaning in a devise by the testator to the issue of his own body from that which they would receive in a devise to the issue of the body of another person." In the present will the use of the words, "in default of such issue," throughout, after a devise to the heirs male of the several tenants for life, and the form of the penultimate devise followed by the devise over in default of issue, justify us in reading the word issue in that devise as equivalent to heirs of my body. We do not think the words "all and every" in themselves, when applied to issue, necessarily import distribution. In

Surtees v. Surtees (6) the words "to the use of every son of J. S. living at the death of the eldest son of J. S. or born during the testator's lifetime" were held to give to each son a separate interest. But the words "son or sons (excluding the next generation) are very different from the word "issue," which takes in all descendants; and the naming a time when the objects of the gift were to be ascertained to the exclusion of others coming within the description seems to refer to a separate interest in each of them. On the other hand in Craddock v. Craddock (59) the words "all and every" occurred. The words were "after other devises in tail," and "in default of such issue to the third and all and every other the son and sons of A and the heirs male of such son and sons, and in default of such issue to the testator's right heirs." It was held that these words gave the third and other sons estates in succession in tail male, and that the third son took the entirety. No authority was referred to in which the words, "all and every issue," coupled with any context such as we have here, and applied to real estate, had been held to make a joint tenancy, either in fee or in tail.

Reading the penultimate limitation, then, as a devise to the heirs of the body of the testator, and for the present supposing the case not to be complicated by the addition of the word " other," we think the case would be governed by Mandeville's Case (22) and that the effect of the devise would be that there would be a remainder under which all the heirs of the body of the testator would take in the same manner as if the testator had been tenant in tail, and the heirs of his body had taken by succession from him. The section of Littleton deals with such a case as well as the Commentary. The text is sec. 30: "Also if a man hath issue a son, and dyeth, and land is given to the son and to the heirs of the body of his father begotten, this is a good entail, and yet the father was dead at the time of the gift, and there be many other estates in the tail by the equity of the said statute which be not here specified." The statute

(59) 4 Jurist N.S. 626.

referred to is of course the statute of 2 Westminster de donis. The commentary gives Mandeville's Case (22) as follows: "John De Mandeville died leaving a wife Roberge, and issue Robert and Maude. Michel de Mandeville gave certain lands to Roberge and to the heirs of John De Mandeville on her body begotten, and it was adjudged that Roberge had an estate for life and the fee tail vested in Robert, and that when he died without issue Maude the daughter was tenant in tail as heir of the body of her father per formam doni." This case has been the subject of much comment. It is discussed by Fearne (60), who says that Hale called it, with his emphatic accuracy, a "quasi-entail," and more fully by Butler, who in his note calls it

66

an anomalous case." There are some excellent remarks upon it by Kindersley, V.C., in Wright v. Vernon (61). It was acted upon in that case and also in the same case on appeal, Vernon v. Wright (12), and is undoubted law. If it is objected that something like a fiction is introduced, it certainly has the merit (as pointed out by the Vice-Chancellor in the case referred to), of carrying into effect the intention of the testator that all the heirs of the body should be included.

In the case referred to the devise was to the heirs of the body of a third person deceased, but we think the same rule applicable to a devise to the heirs of the body of the testator which can only take effect upon his death. It was not disputed for the plaintiff that it was so applicable, and so that if there was a devise to A and the heirs of his body, and upon failure of such issue to the heirs of the body of the testator, and in default of such issue to the testator's right heirs, there would at the death of the testator be a vested estate tail in remainder upon failure of A's issue in the heirs of the body of the testator, descendable as in Mandeville's case (22), with a remainder in the testator's heirs general.

We have only then to consider how far the additional word "other" affects

(60) Fearne on Contingent Remainders, 82. (61) 2 Drew. 439; s. c. 23 Law J. Rep. (N.s.)

Chane. 881.

the meaning and makes the rule in Mandeville's case (22) inapplicable; and if the necessary meaning of that word was to exclude out of the operation of the penultimate limitation any part of the issue of the body of the testator, the rule in Mandeville's case (22) would not be applicible, or rather could only be made applicable by qualifying the strict and proper Leaning of a word, as was done in Jenkins v. Hughes (33) and the other cases referred to, in order to carry into effect the clear intent of the limitation, that all the issue of his body should be exhausted before the estates went over to his collateral heirs.

But it does not appear to us that the word "other" has any effect by way of exclusion at all, and for this simple reason, that there is nothing to exclude. The penultimate limitation for the benefit of "all and every other the issue of the body" is only to come into operation when the rest of the issue not comprehended in the word "other" have been exhausted and extinguished.

The distinct effects of the word "other" may be illustrated thus: If the testator's issue consisted of two classes, A and B, and he was to dispose of two estates, and gave the first to class A in tail, and the second to all and every the other issue (which would be class B), in that case both devises would come into operation at the same time, and both estates enjoyed at the same time by A and by the other issue, and A would be excluded from the enjoyment of the second estate, and the other issue from the enjoyment of the first.

In that case the word "other" would for ever exclude class A from the enjoy ment of the second estate. But it is dif ferent if there is one estate to be enjoyed in succession by A and by the other issue, and only by the other issue on the extinguishment of A. Thus if the estate be given to class A in tail male, and upon failure of issue to the other issue of the testator, it is obvious that the word "other" does not operate to exclude class A from the enjoyment of the estate which has already been enjoyed by class A until its extinguishment, but its only effect is to include the other issue. The rule,

expressio unius est exclusio alterius, does not apply when the other has been included in the gift before. In short, in the case put of two classes of the issue, A and B, and a devise to A, and upon the extinguishment of A, to B, the effect is the same, whether the gift over be to B or to the whole issue of A and B, A being extinguished. We are speaking of course of the effect so far as the actual enjoyment of the estate is concerned, which is what the testator is considering, and not of the legal effect, which may be different, by reason of the law regarding estates in remainder, as vested and capable of being dealt with in the same manner as estates in possession. It need hardly be added that the way in which the law may operate upon estates, by enabling entails to be cut off, or in other respects, is to be disregarded in construing wills, for which many authorities were cited at the bar.

It was noticed that in the common uses of the word "other," it has two meanings, one being "different from," corresponding with the French autre, and the other being "additional," or "in addition to." The latter is the proper sense here, and the real meaning of the words, "other issue of my body," is to add to the specified issue all that which remains, and so comprise and include it. in the limitation. It may appear a paradox to say that "all my other issue" has the same meaning as "all my issue," but in reality the two things are the same when there is no issue existing except the other issue; and in that event both ex pressions have the same meaning. A case was put for the defendant by way of illustration, which raises really the same question as the present, but in a simpler form, and clear of the peculiarity of Mandeville's case (22), viz., a devise to A for life, and to his first son in tail male, and in default of all other issue of A to a stranger in fee. Would it not be clear in that case that the estate was not to go over, except upon a failure of all the issue of A, and would the word "other" be considered sufficiently definite and important in its meaning to prevent an estate in tail general in remainder in A after failure of all the male issue of A's eldest son? Upon the authority of Stanley v. Lennard