Page:The English Reports v1 1900.pdf/1302

Audley should both die without issue male in the lifetime of James, whereby the settled estate would by virtue of the will come to James; in such case James should not take any estate in the other lands and tenements which the testator had devised to him, but the same should go over to Theophilus. That there are many cases where one word of a different sense has been read for another, to give a will the proper operation, and make it consistent, as and for or; and so words have been supplied to make the sense complete, as well in deeds as wills; and here the addition of the word other, made the whole consistent. But if this clause should be taken in the sense contended for by the defendant, there was a plain mistake in it, in the addition of the word male after issue; for the reversion, if not comprised in the will, could not descend to James by the death of Henry and Audley without issue male, but by their deaths without issue gene-[228]-rally. That the objection arising from the transposing clause could not have affected Audley the son, who, it was apprehended, must have had both estates under the will; and therefore a different construction ought not to be put upon it, on account of the declaration in regard to James, that he should not enjoy both estates. As to the power of leasing, and making a jointure by the settlement of 1711, Henry only was empowered to make leases; and the power of settling a jointure given to him by that settlement, was to enable him, after the decease of Mary Titchburne, to assign a jointure for any woman he might marry; whereas the powers contained in the will were for any of the sons when seised, to settle a jointure on any woman they should marry, in proportion to her fortune, and to make leases; so that the powers contained in the will were different from those given by the settlement. And as to the objection that the settled estate was limited to Henry for his life, with remainder to his first and other sons by Mary Titchburne in tail male special, the same could not prevail, for they might take the reversion and services by the will; and the devise contained in the will was to him for life, with remainder to his first and other sons in tail general, which would take in his sons by any other wife; and consequently he took a different and more enlarged estate under the will.

But it was said that the lands of Gortmore, which were not mentioned in the will, answered the intent of using the general words. But Gortmore, in the Irish language, means a great or large field, and was in fact a part of the lands called Hiland Hill; besides, as it was situate in the county of Tyrone, there would have been no occasion to mention both counties, if the intention had been only to take in that description.

It was also objected, that if Mary Titchburne had died, and Henry had married another wife and had issue male by her, yet that such issue would have no part of the family estate, if the reversion in fee passed by the will. This indeed might shew, that the testator intended to prefer his second, third, and fourth sons, and their issue male, to Henry and his issue male by any other wife; but it was apprehended that no argument could be drawn from thence, to prove that he did not intend to devise the reversion in fee of the settled estate by his will; for it was very evident that the testator had in the beginning, and in the material part of his will, made use of legal and proper words, sufficient to take in the reversion in fee of the settled estate; and which it was admitted he had power to dispose of by his will. Why might it not be reasonably presumed that he intended to devise the same? And the more so, as the estate was subjected to an additional jointure of £100 a year for Olivia, and to debts and portions for his younger children, and to the several debts and incumbrances mentioned in the settlement of 1711, amounting in the whole to £10,286, and likewise to the testator's other [229] debts besides the contingency of its being made liable to the further sum of £5000 for younger children.

And as to the second question, it was apprehended that the several remainders limited by the will, were executed by virtue of the statute of uses; and the power of selling was added immediately after the clause giving Olivia an additional jointure of £100 a year; whereas, if it had been inserted after all the limitations, there could not have been the least doubt but that all the remainders would have been legal estates actually executed; and this case is different from devises to trustees and their heirs, to the use of them and their heirs, or to trustees and their heirs, to the intent and purpose that they shall sell in order to pay debts. But if these remainders were not actually executed by virtue of the statute of uses, they might still be good by way of executory devise, as they were to take place within the time allowed of by law, i.e. after a life in being; for the power of selling was personal in Olivia, and could not descend to her