Page:The English Reports v1 1900.pdf/1238

On the 27th of May 1728, the cause was heard, when the Court were of opinion, that the mortgages were absolutely vested in Rawlinson Foord; and that he was tenant in tail of the real estate, and that the entail was well barred; and therefore dismissed the bill with costs.

To reverse which decree the present appeal was brought; and on behalf of the appellant it was argued (P. Yorke, T. Lutwyche), that wills are always construed according to the testator's intention, which, in this case, appeared plainly to be, that Rawlinson Foord should have only an estate for life; for even by express words in this will, an estate for life only was given; and it is an established rule of construction, that where a particular estate is expressly given, it shall not be altered by any implication from subsequent words; especially where such implication, if admitted, defeats the general intent of the will. That if any stress was laid upon the words of the codicil, whereby the premises were devised to Rawlinson Foord and his heirs, subject to the limitations of the will; it was conceived to be clear, that the only intent of the codicil was, to dispose of the new purchased lands, and fix a particular time when Rawlinson Foord's interest was to commence in possession, but not to make any real change in the subsequent limitations of the estates devised by the will; but if those words should be taken to have any effect, they could at most be considered as creating a trust, subject to the limitations of the will, as to the beneficial interest. And yet when the evidence of Stretch, who drew the codicil, was considered, it plainly appeared that these words were inserted by himself, without any direction from the testator, who did not intend to alter the limitations of his will, but on the contrary, meant that they should stand. That wherever an estate tail has been raised by implication, it has been to answer the apparent intention of the testator; but in this case, the testator devised his estate to his son Rawlinson for life; and immediately repeats, "that the whole estate, of which he is but tenant for life, shall, after his death, go to his eldest son that shall be living at his death." And in another part of the will, where he stated the particulars of what he had disposed of to his son Rawlinson, he paying his mother £150 per ann. during her life, he used these words, "then all to revert to my son Rawley during his life," etc. So that in three several parts of the will, he gave him but an estate for life; and how his intention could be construed to mean an estate tail, it was not easy to apprehend.

[129] On behalf of the respondents it was contended (C. Talbot, T. Reeve), that the question in this case concerning the real estate, was properly determinable at law; and that there was nothing either appearing or proved in the cause, to prevent the appellant from trying his title in that way, or to make it necessary for him to come into a Court of Equity. But supposing there were, it was insisted, that by the true meaning of the testator's will, Rawlinson Foord was tenant in tail; and that he having levied a fine and suffered common recoveries, all the remainders were well barred; for, should any other construction prevail, Rawlinson might have left a grandson, who could not have taken the estate under the will; and it could not be imagined to have been the testator's intention, that his second son should be preferred as to this estate before the grandson, or any other male issue of his eldest son. That the personal estate consisting in mortgages and bonds, was, by the will, absolutely devised to Rawlinson, without any limitation over, or any direction to lay the same out in a purchase of lands to be settled, or any devise to trustees for that purpose; nor was it in any manner altered by the codicil; on the contrary, Rawlinson had thereby power to receive, and did in fact receive, several principal sums due on mortgages and bonds, and applied them as he thought fit. And as the absolute right to the personal estate was in him, so upon his death is vested in the respondent Ellen, as his only child; and accordingly, administration thereof had been granted to the other respondent, in trust for her. It was therefore hoped, that the decree of dismission would be affirmed, and the appeal dismissed with costs.

But, after hearing counsel on this appeal, it was ordered and adjudged, that so much of the decree as related to the mortgages, and other personal estate of the testator John Foord, should be affirmed; but as to his real estate, the said decree should be reversed. And it was further ordered, that the respondents should come to an account for the rents and profits of the real estate received by them, or either of them, and which had grown due since the death of Rawlinson Foord, and should pay the same to the appellant; and that the respondents should likewise deliver possession of