Page:The English Reports v1 1900.pdf/1234

[122] To reverse this judgment of reversal, a writ of error was brought in Parliament; and on behalf of the plaintiff in error, it was argued (P. Yorke, T. Bootle), that by the words and intention of the will, the testator's two sisters, Ann Lunsford and Dorothy Evatt, had an estate tail, as tenants in common, with cross remainders of their several moieties; and as Ann Lunsford died without issue, Dorothy Evatt became entitled to the whole estate, and had sufficient power to make a good title to a purchaser; for, that in construction of law, a devise to one, with a limitation over to another, if such first person dies without issue, creates an estate tail in that person, as well as if the devise had been to him or her, and the heirs of his or her body. But as Dorothy Evatt, under whom the plaintiff claimed, was heir at law of the testator, and, as such, would have been entitled to the estate in question, had no will been made; it was conceived, that supposing the words of the will to be ambiguous, yet as they were capable of a construction in favour of the person who was heir at law of the testator, such construction ought to be received.

For the defendant in error it was said (T. Reeve, M. Fazakerley, J. Strange), that two questions arose upon this case: I. Whether the devise, being to trustees and the survivor of them, without any limitation to their heirs; there was now, in the heir of the surviving trustee, an estate sufficient to support the trusts in the will? II. Whether by this will, the testator's sisters Ann Lunsford and Dorothy Evatt, took an estate tail in the premises, or only an estate for life?

As to the first question it was argued, that this devise was to the trustees, upon the trusts after mentioned, which trusts were such as might continue for ever; the intent of the testator being apparent to give them a fee, which the law would raise by implication; for there is no difference in law or reason, between a devise to a man for ever, which has always been construed a fee; and a devise to a man upon trusts to continue for ever, And if the will did not pass the fee-simple to the trustees, it would pass it to the sisters by way of immediate devise.

As to the second and principal question, it was contended, that the two sisters took only an estate for life. It is a known rule in the construction of wills, that the intention of the devisor ought in all cases to be observed, if it can be consistent with the rules of law. Now this devise was expressly to the sisters during their natural lives, with the addition of this restrictive clause, without committing any manner of waste; which showed the intent of the testator strongly, that his sisters should only have an estate for life; for if he had intended them an estate tail, he could not have restrained them from committing waste. That there was annexed, as well to the wife's estate for life, as to that of the sisters, a power to raise £500. But the wife's power was much ampler than the sisters; for she might raise it by sale of timber, or of any part of the premises, or by sale of coal; the sisters were restrained to raise it, by getting of coal only, from whence it was plain, that the testator intended them only an estate for life; and therefore, [123] he gave them power to raise money by getting of coal, which is one kind of waste, and a tenant for life stood in need. of that power; but if he had intended them an estate tail, he would never have given them such a power; because it is a power incident to an estate tail, not only to commit waste in that particular, but in all other particulars whatsoever. Besides, this power to the sisters intervenes between the devise to them for life, and the devise to their issue; which shows that the testator's intent was to complete the devise to his sisters, of what estate they were to have, before be made any devise to their issue. And it was observable, that the power was annexed to the estates given to the wife and sisters for life, and not to the estate given to the issue of the sisters, to whom he intended a greater estate than for life; which could be for no other reason, than because the tenants for life stood in need of such an express power, but there was no occasion to annex it to the estates tail, because it was incident to them. That the next devise was to the issue of the sisters, with the limitations annexed thereto, as in the will; and it was contended for by the plaintiffs in error, that the word issue is a word of limitation, and shall raise an estate tail in the sisters; but it was hoped, that issue would here be construed as a word of purchase, and a designation of the persons intended to take the estate; in which case, it could never extend to enlarge the estate given to the sisters for life. The word issue, in a conveyance at common law, is always a word of purchase. In a will, it may sometimes be taken as a word of limitation, to answer the testator's intention, where such intention appears manifestly from the construction of the whole will. But in the present case it was