Page:The English Reports v1 1900.pdf/1235

plain the testator intended, that the issue of his sisters should take by purchase, and therefore he made use of the word issue, as a designation of the persons who were to take; for he did not barely give the estate to the issue or issues of his sisters, but further devised it to the survivor or survivors of them, and their respective issue or issues: that is, to the issue or issues of such issue or issues as his sisters should leave: for the word survivors, in the plural number, is not applicable to the sisters, there being but two of them, but must relate to their issue. The first limitation therefore is, to the issue of the issue; whence the first issue, to whose estate the limitation is annexed, must take by purchase.

It has been objected, that the word issue is nomen collectivum, and shall take in all the descendants, and consequently create an estate tail in the sisters. But the word issue is only to be understood in this sense, when it is a word of limitation; for it has always been taken in a different sense, when it is a word of purchase. It has also been insisted on, that an estate tail shall be raised in the sisters by implication, from these words, if it shall happen that both my said sisters die without issue as aforesaid, and their issue or issues to die without issue or issues, then the subsequent remainders are given. Wherever an estate tail has been raised by implication, it has been to answer the apparent intention of the testator; but [124] in the present case, the very words from which an estate tail is to be implied, shew that the testator took notice, that he had before limited the estate to the issue of the issue. Besides, the words are not general, if both my said sisters die without issue, but if both my said sisters die without issue as aforesaid; which shewed the testator's intention not to enlarge the estate before given to his sisters. Upon the whole, the defendant hoped, that the judgment of the Court of King's Bench was well given, and that a different determination would be contrary to the express words and intent of the testator; and would be carrying this point further than it ever yet has been carried, in order only to enable the sister to destroy the remainders limited by her brother's will, against his plain intention.

After hearing counsel on this writ of error, upon the 25th of April 1729, and the Judges attending according to order, and having conferred with the Lord Chancellor, his Lordship acquainted the House,

That the Judges of the King's Bench were of the same opinion they were, when they gave judgment in this case; but that there was a difference of opinion in the Judges of the Common Pleas and Barons of the Exchequer, who desired time to confer, in order to be more clear in their opinions:

whereupon it was ordered, that the giving judgment in this case should be adjourned till Tuesday next; and that the Judges should then attend, in order to deliver their opinions. (Jour. vol. 23. p. 403.)

Accordingly, on Tuesday the 29th of April, all the Judges attended; and after delivering their opinions seriatim, in relation to a point of law to them proposed, it was ordered and adjudged, that the judgment given in the Court of King's Bench, reversing a judgment given in the Court of Great Sessions in the county of Flint, should be reversed; and that the said judgment of the Court of Great Sessions should be affirmed. (Jour. vol. 23. p. 409.)

John Foord, an alderman of the city of Limerick, in Ireland, was seised in fee of a considerable real estate in the counties of Limerick, Clare, and Tipperary, and in the cities of Cork, Waterford, and Limerick, all or the greatest part whereof was let out