Page:The English Reports v1 1900.pdf/1301

said Henry Carey survived him, and died in September 1756; and that the said Hugh Mervyn, second son of the said Sir Audley Mervyn, died in the year 1727, leaving Arthur Mervyn, one of the lessons of the plaintiff, his eldest son and heir at law.

In Easter term 1759, the Court of King's Bench in Ireland, which at that time consisted of two judges only, gave judgment upon this special verdict for the plaintiff, as lessee of Henry Carey, Wesley Harman, Elinor Irwine, and Ann Mervyn; being of opinion, that the reversion in fee limited to Audley Mervyn the elder, by the settlement of 22d December 1711, passed by his will to Olivia Mervyn his wife; but the defendant Mr. Strong having brought a writ of error into the King's Bench in England, and assigned the general errors, the special verdict was twice argued; and in Hilary term 1760, the judgment of the King's Bench in Ireland was reversed; the court being clearly of opinion, that the reversion in fee did not pass by the will of Audley Mervyn, to the said Olivia and her heirs.

The lessors of the plaintiff therefore brought a writ of error in parliament to reverse this latter judgment; and on their behalf it was said (C. Pratt, C. Yorke), that two questions had arisen in this case; 1st. Whether the reversion in fee limited to Audley Mervyn the father, by the settlement of 1711, passed by his will? And supposing it did, then 2dly, Whether the lessors of the plaintiff, at the time of bringing the ejectment, had a legal estate in the premises in question or, Whether upon the death of Olivia, the same descended to Henry Mervyn, her eldest son and heir?

As to the first question, the testator Audley Mervyn, in the preamble of his will, declared himself desirous of making the best provision in his power for the support of his children, and the peace and settlement of his family, and to dispose of all his worldly estate, and he thereby devised the same; which being a word of reference, must include not only all his personal, but also all his real estate, and have the like effect as an express devise of all his worldly estate, which would indisputably have comprised both. And upon all the arguments in the courts below, it was agreed by the counsel for the defendant Strong, that the words, and also all other the lands, tenements, and hereditaments in the said counties of Tyrone and Meath, or either of them, etc. would be sufficient to pass the reversion.

But it was insisted on behalf of Mr. Strong, that though the testator had power to dispose of the reversion in fee of the settled estate, and used words in the will sufficient to carry the same; yet there were subsequent parts of the will which shewed, that [227] he intended to devise only the estate of which he was seised in fee-simple possession; viz. the clause whereby the testator declared, that if it should happen that his sons Henry and Audley should die without issue male in the lifetime of his son James, whereby the estate settled upon his son Henry on his marriage should descend, come, or remain to the said son James; that then and in such case, his son James should not take any interest or estate in the lands and tenements therein before devised to him; but that the same should remain and go over to his son Theophilus, according to such interest and estate as was therein before to him devised, for want of issue male of his said son James: also the power of leasing contained in the will; the limitation to Henry for his life, with remainder to his first and other sons in tail male; and the clause impowering Olivia to charge the estate of which the testator was seised in fee-simple in possession, with £5000 upon the event therein mentioned. And with regard to the transposing clause, it was insisted, that it would be wholly inconsistent with the testator's intention, to consider the reversion as passing by the will; for in that case, if Henry and Audley died leaving issue male in the lifetime of James, he would take nothing; as both estates, upon that event, were supposed to be devised over to Theophilus.

To this objection it was answered, that the testator's reciting in this clause the contingency of the settled estate going to James, on the deaths of Henry and Audley without issue male, could not be accounted for without comprising the reversion in the will, which might be made consistent, by restraining the latter part of the clause concerning James, to the lands particularly named; and it was obvious, that the testator thought his settled estate must of course by his will have come to James, upon the deaths of Henry and Audley without issue male; which could not be so, if the reversion was not comprised in the antecedent part of the will, as there was no limitation of the settled estate to Audley or James by the settlement. Hence this clause was an argument for the plaintiff, and might be considered thus: If Henry and