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BOR v. BOR [1756]

III BROWN.

Case 35.—Gerard Bor,—Appellant; Jacob Bor, and Others,—Respondents [22d January 1756].

[Mews' Dig. v. 1587; see 1 Swans. 433 n.]

[Where a testator, making provision for the different branches of his family, gives a fee-simple estate to one, and a settled estate to another, imagining that he had power so to do; a tacit condition is implied to be annexed to the devise of the fee-simple estate, that the devisee thereof shall permit the settled estate to go according to the will; and if in that respect he should disappoint the will, what is devised to him shall go to the person so disappointed. It being presumed, that if the testator had known his defect of power to devise the settled estate, he would out of the estate in his power, have provided for that branch of his family who was not entitled to the settled estate; and have declared that no person should enjoy a legacy or devise, who controverted his power, as to any benefit given to another.]

Margaret Bor, the respondent's grandmother, and the great grandmother of the appellant, being seised in fee of several lands and hereditaments in the counties of Dublin and Wicklow, and of several houses and waste grounds in the city of Dublin; and having issue Christian Bor her eldest son, Jacob her second, and Benjamin her third son; on the 30th of August 1690, duly made her will, and thereby devised to Christian for life, the castle, town, and lands of Ballyawley and Edmonstown, in the county of Dublin, ten acres of land in the fields leading to Dunbar, in the county of Wicklow, and a house in Back-lane, Dublin, with remainder to his first and other sons successively in tail male: she likewise devised to Christian, her dwelling-house in Great Butter-lane, and several houses and tenements in Keven-street, Dublin, in which the testatrix had only leasehold interests. She then devised to her son Jacob for his life, several houses in Michael's-lane, School-house lane, and some waste ground lying between them, [168] (and on which some buildings were afterwards erected, called Bor-court,) in the city of Dublin, with remainder to his first and other sons in tail male; and in default of such issue, to Benjamin for life, and to his first and other sons in tail male; and in default of such issue, to Christian for life, remainder to his first and other sons in tail male, with remainder to her own right heirs. And she devised the town and lands of Pelletstown, in the county of Dublin, to Benjamin for life, remainder to his first and other sous in tail male; and in default of such issue, to Jacob and his sons in like manner; remainder to Christian and his sons in like manner, with remainder to her own right heirs. And the testatrix impowered Christian to settle a jointure, not exceeding £200 a year; and every one of her sons, when in possession of the respective estates to them so limited, to charge the same with any sums, not exceeding a moiety of the value thereof, for portions of younger children, to be distributed amongst them in such manner as they should by will, or any other writing appoint.

Margaret died in 1694, and Christian, Jacob, and Benjamin, became respectively seised and possessed of the several estates so devised to them.

In the year 1717, Christian intermarried with Helena Maria Longfield; but previous so, and in consideration of such marriage, and of £1800 her marriage portion, by lease and release, dated the 1st and 2d of July 1717, (the release reciting the several powers he had under the said will,) Christian conveyed the premises thereby devised to him unto William Longfield and Richard Nutley, Esqrs, to the use of himself for life; and after his death, to the intent that Helena should, during her life, receive £200 & year out of Ballyawley for her jointure; and that the trustees should by sale or mortgage, raise any sum not exceeding £2000 for portions of younger children, to be equally divided amongst them; remainder to the first and other sons of the marriage in tail male, with several remainders over.

Jacob and Benjamin having both died without issue, the lands of Pelletstown, and the houses in Michael's-lane, School-house lane, and Bor-court in Dublin, which were devised to them, became vested in Christian, under the limitations in Margaret Bor's will. And upon the death of his uncle Garret, Christian, as his heir, became seised in fee of the lands of Ballynunry and Kilcoole, in the county of Carlow.

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