Page:The English Reports v1 1900.pdf/1241

Mary Bingham, afterwards called Mary Middleton, deceased, for his life; and after his decease, to the use of his first and other sons in tail male, with several remainders over: and he appointed his said wife sole executrix of his will.

[133] That on the 30th of August 1724, the said James, Viscount Lanesborough, died possessed of the manors, towns, and lands in question, and without issue.

That the said Frances Lane, daughter of the said George, Lord Viscount Lanesborough, and devisee in his said will, married Henry Fox, and by him had issue George Fox, the lessor of the plaintiff, her eldest son and heir; that the said Henry died on the 13th of October 1718; and the said Frances died on the 12th of December 1712, leaving the said George, the lessor of the plaintiff, her eldest son and heir of her body, who, on the 1st of September 1724, entered upon the said promises, and was thereof seised as the law directs, and made the lease to the said Mark Anthony Morgan, as in the declaration mentioned, who entered upon the premises, and was possessed thereof until the said Mary, Viscountess Lanesborough, entered upon the premises and ejected him. But whether upon the whole matter, the Lady Viscountess Lanesborough was guilty of the said trespass or not, the jury submitted to the judgment of the court.

This verdict being several times argued, the court, in Hilary term 1730, gave judgment for Morgan the lessee of Mr. Fox; and £68 18s. for damages and costs.

Whereupon the Lady Lanesborough brought her writ of error in the Exchequer Chamber in Ireland; and the matter being again several times argued, the judgment was, in Easter term 1732, affirmed.

To reverse both these judgments, Lady Lanesborough brought her writ of error in Parliament; and on her behalf it was argued (C. Talbot, D. Rydor) that the title of Mr. Fox was under the will of George, Viscount Lanesborough, as he was the heir of the body of Frances, the daughter and devisee of Lord George; but that this title was not good in two respects. I. Because that devise, if it over was good to vest the estate in Frances, must be of a remainder dependent on a precedent estate tail in Lord James, and consequently would be barred by the recovery suffered by him and the surviving trustees in his marriage settlement. II. Because if there was no estate tail precedent in Lord James, the devise to Frances was absolutely void.—As to the former, it was submitted, that by the devise in the will of Lord George to his daughter Frances, on failure of issue of the body of James, and for want of heirs male of the body of the testator, an estate in tail general and in tail male was given to James by implication, since the daughter was plainly not to take till there was a failure of all such issue of James, and of all such issue male of the testator as were included in such estates tail; and that this was agreeable to many cases of estates raised by implication in a will.—As to the latter, supposing this not to be a devise of an estate tail by implication, Lord James, as heir at law of the testator, must necessarily take in the mean time, till the devise to the daughter could take affect; and then the devise to her being future, and not depending upon any particular precedent estate, created by the [134] will, or even by any settlement, must be an executory devise. But, as it was to take effect only on the contingencies of the failure of issue of James, and of the heirs male of the body of the testator, it was apprehended to be void, as being too remote, and tending to a perpetuity. The consequence of this would be, that the whole of the testator's reversion in fee descended to Lord James; and thereby not only the title of the lessor of the plaintiff failed, but the recovery and will of Lord James, under which the plaintiff in error claimed, would be established; and that therefore the judgments below would be reversed, and a new judgment given for Lady Lanesborough, with costs.

On the other side it was contended (P. Yorke, T. Lutwyche), that as to the lands comprised in the settlement of May 1676, Lord James did not take by the will any greater or other estate than he had by the settlement, because nothing can pass in a will by implication, unless it be such a necessary implication that no other construction can be made of the intent of the devisor. It seems plain that the testator only intended by his will to dispose of the reversion in fee which was reserved to him by the settlement, for which reason he took notice of the settlement in his will; and the estate being thereby limited so far as to his son James for 99 years if he so long lived, with remainder to his first and other sons in tail male; so that James's sons, if he had any, might enjoy it; the testator intended by his will, in case James should have no sons, to dispose of that reversion to his daughter Frances in tail. That the testator did not appear