Page:The English Reports v1 1900.pdf/1286

the estates should go over to his three daughters, Mary, Sarah, and Catherine, "and "the survivors and survivor of them." To comply with this intention, the clause in the will, where he said, that "if both his said sons should happen to die unmarried, or neither of them shall have any issue lawfully begotten," must be construed in the disjunctive, as if he had said, "if both my sons shall happen to die unmarried, or neither of them shall have any issue lawfully begotten;" or be construed as expressing the two cases, in either of which the devise over was to take place for no reason could be assigned to suppose he meant to devise to his daughters, upon events different from those he had provided for as between his sons; and more especially, as such a construction would make him die intestate in the case which had happened. That the devise in favour of his three daughters, vested no estate or interest in them on his death, but was to take effect on a contingency to happen at a future time, namely, on both his sons dying without having issue; the persons then to take, were his daughters Mary, Sarah, and Catherine, and the survivors and survivor of them, as tenants in common, and not as joint-tenants, a preference being given to the daughters or daughter who should survive; and this survivorship must refer to that period of time, when the event should happen on which the devise was to take place; that is, on the death of the sons without having issue. If more than one of the daughters should at that time survive, such survivors must take as tenants in common, and the [203] joint interest cease; and if but one of the daughters should be then surviving, such only survivor must take the whole. This was the plain and obvious meaning of the devise, without adding to, rejecting, or varying any of the words; and in consequence of it, the respondent Catherine being the only surviving daughter of the testator, at the death of his son John, she and the respondent Thomas her husband in her right, were entitled to the lands and premises devised by the will.

As to the objection, that the limitation in favour of the daughters was void, as being on too remote a contingency, viz. a dying without issue; it was answered, that the contingency was so far from being too remote, that it was to happen within the compass of the lives of the testator's sons Mark and John; for the trustees in the will were, on each of his sons having issue, to convey the premises devised to them respectively; and if one should die having no issue, and the survivor should have issue, then the lands originally devised to the son so dying, were to be conveyed absolutely to the surviving son; and in that case there was no devise over. If both his sons died unmarried, or if neither of them should have any issue lawfully begotten, then only the devise in question was to take effect; and the latter of these contingencies having happened, by neither of the sons having had issue, the devise over was good; and therefore the testator's heirs at law, and next of kin, could not, as such, have any right or title to the estates in question.

But after bearing counsel on this appeal, it was ordered and adjudged, that so much of the decree complained of as had adjudged all the freehold and leasehold estates and interests contained in the will of Mark Tew the elder, deceased, to the respondent Catherine Bayly, and the respondent Thomas Bayly in her right, and decreed them to be put and quieted in the possession thereof, should be reversed: and it was declared, that the same, by virtue of the said will, upon the contingencies which had happened, were well devised to the testator's daughters, Mary, Sarah, and Catherine, as tenants in common; and that one third thereof belonged to the respondent Catherine Bayly, and the respondent Thomas Bayly, in her right; another third to the appellants Catherine and Elinor Mottley; and the remaining third of the freehold leases to be divided in thirds, between the appellants Catherine and Elinor Mottley, and the respondents, and the appellant Mark Wilson; and that the remaining third of the chattel leases belonged to Weldon Tarleton, administrator of Mary Tarleton: and it was ordered, that the Court of Chancery in Ireland should give such directions as might be necessary for partitions, conveyances, and delivery of possession, according to the several rights of the parties declared. And it was further ordered and adjudged, that the rest of the said decree should be affirmed. (Jour. vol. 29. p. 581.)