Page:The English Reports v1 1900.pdf/1285

Susanna Wilson to one other third part thereof, and the appellants Catherine and Elinor Mottley to the other third part thereof and it was ordered, that the Master should take an account of such personal estate, and the issues and profits thereof, since the death of the said John Tew, by whom received, and [201] how applied, and also an account of the debts due by John Tew, and his funeral expences; and the usual directions were given for taking the said accounts, and the consideration of costs and all further directions were reserved until after the Master's report.

From so much of this decree as adjudged the whole freehold and leasehold interests of Mark Tew the elder, to the respondents only, the present appeal was brought; and to obtain a reversal or variation thereof, it was argued (C. Pratt), that by the words and meaning of his will, his three daughters, Mary, Sarah, and Catherine, had such a contingent interest vested in them upon their father's death, in his said leasehold estates and interests, as was transmissible to their assigns, or representatives; the testator having devised the same to trustees, upon the trusts therein mentioned, and declared expressly, that in case both his sons Mark and John should die unmarried, and that neither of them should have any issue lawfully begotten, then his three daughters Mary, Sarah, and Catherine, and the survivors and survivor of them, and their assigns, should take as tenants in common, and not as joint-tenants; and if upon the death of both the brothers, Mark and John, without issue, the one married, the other unmarried, the contingency had happened; it was apprehended that the appellants Catherine and Elinor Mottley, as being the lawful issue of Sarah Tew, were entitled to an equal share with the respondent Catherine, of the devised estates of Mark Tew the elder, in virtue of his said will. That the advantage of survivorship is against, equity, and that no survivorship should hold after marriage, against the issue of either of the three daughters Mary, Sarah, and Catherine, appeared to be the intention of the testator throughout his will: for in one clause he declared, that if any one of his said three daughters should die before marriage, the fortunes thereby bequeathed to them respectively should go to the survivor. In another clause he limited over the portions of such as should marry without consent, to the others; and in the limitations of his leaseholds his express words were, that his three daughters, Mary, Sarah, and Catherine, should be tenants in common and not joint-tenants; and these express words being the last in the sentence, controuled the former words of survivorship, which the respondents would strain to their own advantage, against the whole tenor of the will, and the justice and equity of the case. That it was apprehended, the words, and the survivors and survivor of them, and their assigns, could not be construed as descriptive of the persons who were to take upon the contingency happening; for had that been the intention of the testator, he would have said, or the survivors or survivor, as he did in several other parts of his will with propriety: besides, if these words were considered as descriptive of the persons who were to take at the time of the contingency happening, then if all the three daughters bad died leaving issue in the lifetime of either of the brothers, and the contingency had afterwards happened, it was apprehended, that such issue could [202] not have taken under this devise. That the testator did not intend the whole to a surviving daughter, from his adding the words their assigns; for had he so intended, he would have said the survivor of them, and her assigns, or, the assigns of such survivor, and would not have made use of the words, their assigns as tenants in common, and not as joint-tenants. But supposing that the contingency never happened, because John Tew married, though he died without issue, and though Mark his brother died a bachelor; yet the appellants were equally entitled with the respondent Catherine, to the freehold leases and estates of Mark Tew the elder, Mark Tow the younger, and John Tew, as heirs at law; and were also equally entitled with her to the leases for years, as well as the other personal estate of John Tew the intestate, as his next of kin; and therefore it was apprehended, that in either case the decree was erroneous, and ought to be reversed.

On behalf of the respondents it was insisted (T. Sewell, G. Ferrot), that it appeared the testator meant that the leasehold estates devised for the benefit of his son Mark, should go to his son John, upon either of these two contingencies; viz. if Mark should die before marriage, or should die having no issue; and that the leaseholds given for the benefit of his son John, should go over to his son Mark, if John should die before marriage, or should die having no issue and it seemed clearly to have been his meaning, that if both should die before marriage, or without having issue, then