Page:The English Reports v1 1900.pdf/1267

lane, School-house lane, and Bor-court, and the one third part of the £2000, that he should convey to the respondent so much of the lands of Ballymunry and Kilcoole devised to the appellant's father, with remainder to the appellant, as should be equal to such moiety of the lands of Pelletstown, and houses in Michael's-lane, School-house lane, and Bor-court, and such moiety of the rents, issues, and profits thereof; and also to a moiety of one third part of the £2000, or so much thereof as should come to the hands of the appellant. And it was further decreed, that until such time as the appellant should attain his age, he should receive the rents of Ballynunry and Kilcoole, or of the moiety of Pelletstown, and of the houses in Michael's-lane, School-house lane, and Bor-court, at the election of his guardian or guardians for the time being, without prejudice, and subject to the order of the court; and during the said time the respondent should receive the rents and profits of the said other lands without prejudice, and subject to the order of the court; and it was referred to the Master to take an account of the rents, issues, and profits of Pelletstown, and the houses, and of the lands of Ballynunry and Kilcoole, which the appellant, or Gerard Bor deceased, respectively received, or might have received from the time they respectively came into possession thereof; and in case the defendant Mary should not, as administratrix of Gerard, admit assets in her hands, it was referred to the Master [174] to take an account of the assets of Gerard, which came to her hands; and on the said several accounts all just allowances were to be given.

The appellant, apprehending himself aggrieved by this decree, appealed from it; and on his behalf it was contended (W. Murray, C. Pratt), that John Bor had, for valuable consideration, covenanted to make good the devise of Pelletstown, etc. That the appellant or his father took nothing under John, but the respondent Jacob possessed all his real assets, which were much more than sufficient to make satisfaction for his breach of covenant. That the question was determined by the decree in the cause, wherein the appellant's father was originally plaintiff, and which was afterwards revived by Mary Bor the appellant's mother, by which Gerard's third of the £2000 was decreed to his administratrix, and no account directed of the profits of Ballynunry and Kilcoole, which he received during his life. That the testator's intention must be the rule to govern in this case, which intention, though not expressed in precise words, might, by sound construction and inference, be implied as certainly as if it was expressed; therefore, where a testator making provisions for the different branches of his family, gives a fee-simple estate to one, and a settled estate to another, plainly 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 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, who is making provision for his family, 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 which 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. In the present case, John the eldest son, upon the death of the testator his father, was tenant in tail of the lands of Pelletstown, etc. and nothing was devised to him by the will, therefore the will could impose no consideration upon him; he might have made these lands by a common recovery absolutely his own, and barred the title of every object of the testator's bounty; and so long as John had issue male, the lands could not possibly come to any devises under the will; therefore, to bring the condition home to Gerard, who was a devisee under the will, the respondent must presume this to be the intention of the will; namely, that if the testator had known he had no power to devise Pelletstown, he would, to secure his devise thereof, have expressly declared, that if by the death of John without issue, and without suffering a common recovery and disposing of Pelletstown, it should come to Gerard, either under the intail, or as heir to John, and Gerard should not dispose of it, and it should come to his issue male, either under the intail or by descent; that then, at any distance of time, such issue male should make good the devise, or forfeit [175] Ballynunry and Kilcoole. But surely it could never enter into any man's head to make so extravagant, remote, and nugatory a condition, in order to effectuate a present disposition for the maintenance of younger children. Pelletstown, etc. might never in any shape come to any issue male of Gerard, and if it did, it might not come in centuries; it might not come till ages after they had suffered recoveries, barred the intail created by Christian's will, and sold Ballynunry and