Page:The English Reports v1 1900.pdf/1170
default of payment. And also, provided the said Lytton Strode does change his surname from Strode to Lytton, and does for the future go and be called by the name of Lytton, and not by the name of Strode; and in case the said Lytton Strode does not change his surname from Strode to Lytton, as above mentioned, the said devise and bequest to him made, of the said messuages, lands, tenements, and hereditaments, out of settlement, shall wholly cease and be void; and then and from thenceforth I give and devise the said messuages, lands, tenements, and hereditaments, with their appurtenances, out of settlement, unto the said Dame Ann Russell, her heirs and assigns for ever, subject and liable to the payment of the said £4000 to such daughter, in manner and form as is provided in the proviso above mentioned and expressed.
And the said testator gave the residue of his personal estate unto the said Dame Ann Russell and Lytton Strode, and appointed them executors of his will.
In January 1704, the testator Sir William Lytton died without issue, seised of all the said estates, of the value of £3000 per ann. and possessed of a personal estate to the amount of £30,000 and upwards.
After the testator's death, a question arose, touching what part of his estate passed to Lytton Strode by the devise of all the lands out of settlement; and in order to determine this question, two several suits were instituted in the Court of Chancery; the one by Lytton Strode, as claiming all the lands devised by the testator's will; and the other by the Lady Falkland, who, as one of the three co-heirs at law of Sir Rowland Lytton, claimed one third of all the lands comprised in the settlements of 1665 and 1672; and to both these suits Lady Russell was made a party; because, as another of the co-heirs (Lytton Strode himself being the third), she also claimed a third part of the lands in those settlements.
On the 16th of June 1708, both these causes were heard together, before the Lord Chancellor Cowper, assisted by the Master of the Rolls, the Lord Chief Justice Trevor, and Mr. Justice Tracy; when the court was of opinion, and accordingly decreed, that all the manors, messuages, lands, tenements, and hereditaments, whereof the testator Sir William Lytton was, at the time of making his will, seised in fee, or whereof he then had a dis-[27]-posing power, and the reversion and inheritance thereof, did well pass by the said will to the said Lytton Lytton, alias Strode, and his heirs; and therefore ordered the Lady Falkland's bill to stand dismissed.
From this decree Lady Falkland appealed; and on her behalf it was argued (T. Powys, T. Parker), that Sir William Lytton, at the time of making his will, and also at the time of his death, had subsisting estates in the lands comprised in the settlement of 1665, by virtue of the limitations in such settlement; and that the lands therein contained, and the reversions thereof, were then, in construction of law, under the influence of, and affected by those limitations, and consequently were, in a legal sense, in settlement. And as to the greatest part of the lands thereby settled, in case he left issue male, he had no power to dispose thereof, to the prejudice of such issue male; the fee being, by the settlement of 1672, lodged in trustees for the benefit of the right heirs of Sir Rowland, from whom those lands moved. And if Sir William had made no will, the three co-heirs of Sir Rowland, of whom the appellant was one, would undoubtedly have enjoyed the benefit of that trust. This manifested, that these estates stood affected by both the settlements at the time of Sir William's death; for if there had been no such settlements, and Sir William had claimed only by descent from Sir Rowland, Lytton Lytton, and Lady Russell, as co-heirs of Sir William, would have been entitled to the whole; and therefore it was insisted, that the said lands ought to have been expounded to be in settlement, and consequently to be exempted from the operation of the general devise in the will, of all the manors, lands, etc. out of settlement; which words were restrictive, and seem to have been inserted on purpose to prevent that construction of the will which the decree had made.
That by such a construction, the words out of settlement, though thrice repeated in the will, were rejected and rendered totally useless, to the disherison of the appellant, who was one of Sir Rowland's co-heirs; whereas it is an established rule both in law and equity, that no words in a will which can have a reasonable intent, shall be rejected; and these words, out of settlement, were capable of bearing this, and no other reasonable intendment, viz. to prevent the lands comprised in the settlements from passing to the respondent Lytton; and therefore, as an heir at law ought not to be disinherited by doubtful words, this construction of the will ought in justice to take place.
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