Page:The English Reports v1 1900.pdf/1254

Duke John, which had grown due since the death of Duke Edmund, and should grow due whilst he continued in the possession thereof, and indemnify the trustees from the same; but such payments were to be made, without prejudice to any demand that the respondent Charles Sheffield might have, to be reimbursed what he should pay out of the personal estate of Duke John.

From so much of this decree and order, as directed the personal estate of Duke John, to be laid out in the purchase of lands, to be conveyed to the same uses as the Duke had devised his real estates by his will, and that possession thereof should be delivered to the respondent Sheffield, the Duchess appealed: and op her behalf it was argued (D. Ryder, J. Strange), that upon comparing the several parts of the will together, it did not appear to have been the testator's intention that the personal estate given to his son Duke Edmund and his issue, should be laid out in land, and settled according to the decree; and consequently such personal estate absolutely vested in Duke Edmund, the limitation over being void as too remote, and not warranted by the rules of law or equity; and upon his death became the property of the appellant, as his executrix and residuary legatee. It was therefore hoped, that the decree and order would be, in this respect, reversed; and that the personal estate and the lands purchased with any part of it, together with the profits and interest of both, would be decreed to her.

On the other side it was contended (W. Hamilton, W. Noel), that it manifestly appeared by the will to have been the testator's intention, that Duke Edmund his son should only have an estate tail in the real estate, and in the lands directed to be purchased with the personal estate; and that for want of issue of his body, and on failure of lawful issue of the testator, his real estate, and the lands to be purchased as aforesaid, should vest in his natural son, the respondent Charles Sheffield, with such remainders over as in the will are mentioned; so that both his real estate, and that which should be purchased, should be held and enjoyed by one and the same person, That a will is always so construed, as that all parts of it may prevail and have their operation if they can; and therefore, to construe that part of the testator's will, whereby be declared that his eldest son and his issue, and if the testator [154] left none, his eldest daughter and her issue, should have his whole real and personal estate, to amount to an absolute devise of the residuum of such personal estate to the son, his executors, or administrators, as contended for by the appellant, was unreasonable, and without any foundation; and tended to overturn and destroy almost all the other parts of the will, in prejudice of the respondent Sheffield, to whom the testator manifestly intended his real and personal estate should come, on failure of his own legitimate issue. And therefore it was hoped, that the decree and order would be affirmed, and the appeal dismissed with costs.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the decree and order therein complained of, affirmed. (Journ. vol. 25. p. 65.)

Daniel, Lord Viscount Clare; of the kingdom of Ireland, was seised in fee of divers lands, tenements, and hereditaments, in the barony of Jraghty Conner in the county of