Page:The English Reports v1 1900.pdf/1204

Thomas, the nephew and devisee, entered upon all the devised estates, but made no conveyance of the legal estate to the trustees, or declared any trust thereof, pursuant to the express directions of the will.

In November 1717, the said Thomas Sutton died, without leaving any issue of his body; and in Trinity term 1718, the appellants exhibited an information in the Court of Exchequer, against the respondents and others, praying that they might be put into possession of the premises for the charitable purposes in the testator's will mentioned; and that the legal estate, which was vested in the defendants, or any of them, might be conveyed to the relators and their heirs; and that the several charities might be established.

To this information the defendants pleaded, that the said Thomas Sutton was seised in fee of the lands in question, or, at least, to him, and the heirs male of his body; and that being so seised, by indentures of lease and release, he conveyed the same to one Francis Heatley and his heirs, to the intent, that common recoveries might be suffered thereof, to the use of him, the said Thomas Sutton, his heirs and assigns for ever; and that in Michaelmas term, 11 Ann, common recoveries were suffered accordingly. That being so seised, the said Thomas Sutton, on the 22d of April 1714, duly made his will, and thereby devised all his estate to his wife for her life; and after her decease, to the charitable purposes therein mentioned. But that by a codicil, dated the 5th of November 1717, he thought fit to revoke all the devises in his said will relating to charities; and thereby devised the Chequer Inn, after the death of his wife, to Sarah, the wife of one Laurence Carter, for life, with remainder in fee to the defendant John Sutton; and he devised the lands in Suffolk to the other defendant Thomas Paman and his heirs for ever. And therefore the defendants pleaded these several matters, in bar to the relief sought by the information.

On the 10th of February 1720, this plea came on to be argued; when the Court gave judgment in favour of the plea, and ordered it to be allowed.

But from this order the relators appealed; insisting (J. Reynolds, C. Phipps), that is was most manifestly the intention of the testator that his nephew Thomas Sutton, who, by the way, was not his heir at law, should have no greater estate in the lands in question, than for life only; and accordingly the estate was expressly limited to him, for and during the term of his natural life, with remainders to his sons, as purchasers. That it could not be pretended, there were any words in this will which, if in a deed, could possibly have created an estate tail in Thomas Sutton; if, therefore, any such estate was created, it must be by implication or presumption of the testator's intention, and not by the legal import or construction of the words themselves; but that such an implication was directly contrary to the express declaration of the testator, in almost every [77] branch of his will, as well as destructive of the charities, which he clearly intended to establish for ever. That as to the lands in Suffolk, the legal estate whereof was vested in Thomas Sutton, in trust for the testator, the will was no more than a direction and appointment in what manner the trustee should convey his estate, so as best to answer the testator's intention; and as no conveyance thereof had ever been made by such trustee, pursuant to those directions, that trust still remained to be carried into execution by the authority of a Court of Equity, which, it was hoped, would be done in such manner as would give an entire effect to the intention of the testator, expressed in the several limitations of his will; and not so as to put it in the power of the trustee, who ought to have pursued the testator's direction in the establishment of the charities, to destroy them at once, and thereby render useless and ineffectual the greatest part of the provisions made by the will. That in this case there were no creditors or purchasers for a valuable consideration who could be affected by the construction now contended for; but the aim of the appellants was, to support a pious and charitable benefaction, against persons voluntarily claiming under the will of the testator's nephew and trustee, wherein he had thought fit even to take notice of the charities with which the estate was affected by the will of his uncle, though, upon groundless suggestions, he had attempted to destroy them by his own.

On the other side it was argued (T. Reeve, T. Bootle), that under the testator's will, Thomas Sutton took an estate tail by implication, the remainder to the relators being after his death, without issue male; and though he was only cestui que trust, it was the same thing in equity. As to the objection, that the limitation after his death, without issue male of his body, was to be understood such issue male as was mentioned