Page:The English Reports v1 1900.pdf/1350

parts of the rents and profits of the estate, of £1395, and that his share of the unsatisfied legacies amounted to £92 18s. 2d.

This report having been confirmed, the cause was further heard on the 5th of February 1767, when the Lord Chancellor was pleased to decree, that the respondent should recover from the appellants, the £1395 reported due to him, with interest for the same from the time the report was confirmed; and further decreed two sixths of the legacies reported to remain unpaid, a charge on two sixths of the lands to which the respondent was decreed.

[304] From both these decrees the present appeal was brought; and on behalf of the appellants it was said (W. de Grey, C. Yorke), that the whole question in this cause depended on the construction of the will of William Cronyn, whether the devise over of the premises in question, on the death of his daughter without issue, was a valid or a void devise? By the will, two contingencies were expressed, on which the remainders over should take effect; one, the marriage of the daughter without the consent of the executors; the other, her death without issue. The former was admitted by the appellants to be a contingency good in law, on which limitations over might be ingrafted, if the event should happen. The latter was contended to be void by the established rules of law, as depending upon a general indefinite failure of issue, too remote to be expected, and therefore tending to a perpetuity, unless it be restrained to the compass of a life or lives in being, at the time of creating the limitations, or within the space of 21 years beyond lives in being, during the infancy of a first unborn taker of the inheritance of a freehold, or absolute owner of a term, who is by law restrained from alienating, while that infancy subsists. That in the present case, the first contingency never happened, for the testator's daughter married with the consent of the trustees; therefore the whole term vested absolutely in her. This consent was substantially admitted by the answers; proved by positive testimony of witnesses, uncontradicted and unimpeached; and the fact ought to he presumed, after remaining unquestioned for 16 years, from 1731, till the filing of the original bill in 1747; although many persons were interested to dispute it during the whole time. Neither could any distinction be framed as to the second contingency of the daughter's dying without issue, to take this case out of the ordinary rule of law. The testator had said in the former part of his will, that if his daughter should die without issue, his substance, including the estate in question, should return to his executors, and be divided as he had directed; in the latter part he repeated both contingencies, separating them from each other by disjunctive words, and adding devises over upon either event; therefore, as no words were inserted, nor circumstance appeared in any part of the will, to confine the failure of issue to a period of time allowed in law, the leasehold estate vested absolutely in the daughter, together with all the testator's other personal property.

That the construction contended for by the respondent, was not only unsupported by rules of law, or cases adjudged upon executory devises, either of freehold or leasehold estates, but was peculiarly unfavourable in the case of a child. Courts of law and equity may sometimes deem it no hardship, in the case of bounties by devise to strangers and collateral relations, otherwise provided for, to suspend powers of ownership, and restrain the first taker from alienating during his life, and till contingencies are determined, in the very moment and by the event of his death. But in the case of a child, it is an unreasonable disposition, de-[305]-serving no favour, which disables that child from disposing of any part of the parent's property, even in the course of a long life, to advance children in their education, or marriage, or to pay debts necessarily contracted for support in trade, in misfortunes, or for any purposes whatsoever. That the executors of the father, soon after his death, assented to the devise, as well as the marriage, and actually permitted the daughter and her husband to receive the rents and profits of the premises, and take possession of the assets. Upon an execution against the husband for his debt, the sheriff might sell the term at law; and the husband surviving the wife, could not question it. Whatever power she reserved over this or any other part of her property, by her marriage articles, had been executed favourably for her husband, in respect of these lands; and consequently in affirmance of the sale made, to bind the husband her acting executor, and legatee of an interest still subsisting in the lease sold. These facts were disclosed upon the pleadings, and not controverted. That if the term could be supposed not to be vested in the daughter, there was not the least foundation for giving costs; as the case appeared to be a matter