Page:The English Reports v1 1900.pdf/1171

That it appeared by the proofs in the cause, as well as by Sir William Lytton's will, that none of the estates comprised in the settlements of 1665 and 1672, ought, or were intended by him to pass to the respondent Lytton, and that the testator never designed to break into those family settlements; for that he had often declared, that upon failure of his issue, the appellant would come in for a share of these estates, as one of his father's co-heirs; and that he intended to leave his personal estate between Lady Russell, and the respondent Lytton, and that Lytton would [28] not only take one third part of his real estate, as heir to his grandmother, but would also be enabled to buy in the other two thirds from the appellant and Lady Russell.

It might be objected, that as the testator appointed the respondent Lytton to take upon him the surname of the Lytton family, so he intended to give him the family estate to support it; but to this it was answered, that there passed by the will to the respondent, not only a moiety of the personal estate, which was in value upwards of £15,000, but also lands of about £1000 per ann. which were not comprised in the settlements of 1665 and 1672; besides one third of the lands in those settlements, which he was entitled to as one of the co-heirs of Sir Rowland Lytton: and that this was an ample recompense for changing his name, and fully sufficient to support the character of his family. Nor could the consideration of his name weigh much with the testator, because he had given the estate to the respondent Lytton, in fee; so that if he had only a daughter, the name would have sunk; and if the respondent had not taken that name upon him, the estate was given over to Lady Russell, without any condition imposed on her of taking the name of Lytton.

It might also be objected, that Sir William Lytton's devise to the respondent Lytton, of all other his lands out of settlement, being immediately subjoined to the devise of lands in Letchworth, to the testator's wife, which were comprised in the settlements of 1965 and 1672, it was manifestly the testator's intention, to give all other the lands in those settlements, because he had just before taken upon him to dispose of part of the lands so settled, to his wife; but to this it was answered, that at most, the testator intended barely to break into the family settlements, in order to make a provision for his wife, for her life, and that only as to a small part of the estate, and for a short continuance; and that therefore, the subsequent clause rather shewed his intention of breaking no farther into the limitations of the settlement; and that to prevent it, he inserted these restrictive words, out of settlement, to qualify the general words, of all other his lands: besides, it was observable, that he made use of the word lands, on that occasion; whereas, when he aimed to charge the whole estate with certain annuities, he used the word manors; and which word would most probably have been inserted in the general devise, if he had intended his manors to have passed.

Should it be further objected, that the portion of £4000 for a daughter, which was charged on the estate devised to the respondent Lytton, was an evidence of the testator's intention, that Lytton should have his whole estate; for that otherwise, such daughter would not only have the lands in the settlements of 1663 and 1672, but also £4000 out of the other part of the estate; it might be answered, that it was much more reasonable in the testator, to leave the ancient family estate to come to such daughter under the settlements, and to give her £4000 out of the rest of the estates devised to the respondent Lytton, than to give his own child only £4000 and to give Lytton, who [29] was but a remote relation, £3000 per ann. besides a moiety of the personal estate, which was worth above £15,000.

It might likewise be objected, that the trust in the settlement of 1672, for the right heirs of Sir Rowland Lytton, was an hereditament out of settlement, and so passed by the will; but this objection was ill founded, because the lands were, at the time of Sir William's death, under the influence of, and affected by the last limitation in both the settlements of 1665 and 1672; and therefore, if Sir William had made no will, this limitation would have carried the lands comprised in it, to the right heirs of Sir Rowland, and not of Sir William; and by consequence, one third to the appellant Lady Falkland.

The defendant Lady Russell also appealed from the decree, on whose behalf it was contended (S. Harcourt, S. Cowper), that these lands could not pass under the testator's will, by a devise of his lands out of settlement; because they were, in fact, in settlement at the time of making his will, be having particular estates then vested in him in all those lands under the settlement of 1665, so that it was not in his power to dispose of them in prejudice of his issue; and though upon his death, those particular estates