Page:The English Reports v1 1900.pdf/1261

was to be taken of the lands recovered by the respondent, by a skilful surveyor, to be appointed for that purpose, distinguishing each denomination, and the bounds thereof; and in case the parties should not agree in nominating a surveyor, his majesty's surveyor general was to appoint a skilful surveyor to set out the said lands; and, on the return of such commission and survey, such further order should be made as should be fit.

In pursuance of this decree a commission issued, and several witnesses were examined thereon; but before their depositions were published, or any return of the commission made, the appellant Lucy intermarried with the other appellant Mr. Fitzgerald; who being greatly dissatisfied with the said several decrees, and other proceedings in both causes, the present appeal was brought.

In support of which it was argued (W. Murray, W. Noel), that by the devise in James Leslie's will to his son John and his heirs, and failing issue of John, to his other sons James and George successively, in the same manner, they severally took estates in tail general, and not in tail male only. As to the objection, that the words of the latter clause in the will, viz. "And failing my issue male, then to the use of my issue female," controuled the precedent estates tail general, and confined them to estates in tail male, it was said that these words, failing my issue male, etc. could not controul the precedent estates tail general, and confine them to estates in tail male; for that would be first by implication from the former words, failing issue of my son John, to turn the precedent devise to him in fee, into an estate tail general; and then, by the words in the latter clause, failing my issue male, raise a contrary implication, and restrain the estate in tail general to an estate in tail male. That the testator having devised estates in fee to his unborn sons, the words failing my issue male, which immediately followed, could mean only to restrain those estates in fee to the unborn sons, to an estate tail general, as he had before limited to his sons John, James, and George; that is, if all his sons should die without issue, then the estate should go over to the testator's issue female. That this construction gave a proper effect to every part of the will; whereas the construction contended for by the respondent Doctor Leslie, was inconsistent with the former clear and express words of the will, with regard to the limitations to the testator's sons John, James, and George. For if the words failing any issue male, wore [165] to be construed as the respondent contended, the daughters of the testator would be preferred to the daughters of his sons; which was contrary to the course of descent, evidently against the testator's intention throughout his whole will, and would be a forced construction to the prejudice of the heir at law.

But supposing that John Leslie, the appellant Lucy's father, took under the will an estate in tail male only; yet even in that case it was conceived, that the appellant Lucy was well entitled to all the premises in the county of Kerry, under the fine, recovery, articles and marriage-settlement, as a purchaser for a valuable consideration; for it was evidently the intention of all the parties to the articles and settlement, that all the lands and estate of John Leslie in the county of Kerry, without exception, should be conveyed to the uses of that settlement; and Sir Stephen Rice's mortgage, which covered the whole estate, was assigned accordingly, to attend the inheritance, and protect those several uses. Besides, all the lands and premises in the county of Kerry, had always been known by the denominations of Tarbert and Tyraclea, and appeared by the old mortgage deeds to be comprised under those denominations, without any other description and the fine and recovery were express as to those denominations, and comprehended a sufficient number of acres to pass the entire estate. But if there was any doubt as to the description of the premises upon the recovery, yet taking into consideration the deed declaring the uses, and the recovery itself, the same was sufficient to comprise the whole, and were both to be considered but as one conveyance. And as common recoveries are now become the common assurances of men's estates, and on which so many titles depend, they are and ought to be construed favourably. That by the decree of the 16th of July 1743, the appellant Lucy was decreed to pay costs to the respondent Doctor Leslie, and a perpetual injunction was also awarded against her; and yet, although she was then an infant, no day was given her to show cause against it; and the subsequent decree and proceedings being founded entirely upon the decree in the original cause, they must wholly depend upon the fate of that decree, which it was therefore hoped would be reversed and set aside.

On the other side it was said (D. Ryder, P. Jodrell) to be usual for families to entail their estates upon the male line, in order to preserve them in the name of the family;