Page:The English Reports v1 1900.pdf/1355

Levy, the clear residue of Elias Levy's personal estate ought to be divided into three equal parts, and that one third part thereof, by virtue of the limitations in the will of the said Elias Levy, would belong to the respondent Michael Adolphus, in his own right; and it was ordered, that the said respondent, on the death or marriage of the said Judy Levy, should be at liberty to apply to the court concerning the same; and declared, that one other third part thereof belonged to Reuben Adolphus, and that by virtue of his will the respondent Michael Adolphus would, on the death or marriage of the said Judy Levy, be entitled to the interest and dividends of such third during his life; and that the respondents, the children of the said Joy Adolphus, would on his death, and on the death or marriage of the said Judy Levy, be entitled to the whole of the capital of the last mentioned third, under the will of the said Reuben Adolphus: and it was ordered, that the said Michael Adolphus, on the death or marriage of the said Judy Levy, should be at liberty to apply to the court concerning the interest and dividends of the said last mentioned third: and it was ordered, that the said children, or such of them as should be living at the time of the death of the said Michael Adolphus, [312] should be at liberty on his death, and on the death or marriage of the said Judy Levy, to apply to the court concerning their respective shares of the said last mentioned third: and his Lordship did. also declare, that the remaining third part of the clear residue of the personal estate of the said Elias Levy, belonged to Doctor Joy Adolphus, and ought to be considered as part of his personal estate, subject to the specific charges on such third, by the mortgages made by Doctor Joy Adolphus. And as to the sum of £5000 moiety of the £10,000 bound by the marriage articles of the 4th of December 1723, his Lordship declared the same would belong to the appellant, after the death of the respondent Judy Levy, in right of Isabella his late wife; the power of appointing given by the marriage articles to the said Judy Levy, being extinguished upon the death of the said Isabella's only brother, before any appointment was made.

The appellant apprehending himself aggrieved by so much of this decree as related to the division of the residue of Elias Levy's personal estate, brought the present appeal; and on his behalf (F. Norton, A. Wedderburn, T. Lockhart) it was contended, that the disposition made by the testator of his effects, after the life estate to his wife, was confined to the event of her entering into a second marriage; then and in that case only it was, that the residuary bequest to the daughter took place under the will. That the limitation over must be considered under the same restriction. In precedent and subsequent limitations of the same subject, the natural presumption is, that it is intended to pass in the limitation over, in the same circumstances as to the first taker. And in this case more especially, it was to be presumed, that the testator did not intend to give to remoter relations, an interest more beneficial than that which his daughter would take under the will. That the limitation to the family of Adolphus, in case of the death of his daughter without leaving issue, appeared clearly to relate to the very same estate, which he had in the former clause given to his daughter; and as the bequest to the daughter was to take place only in the event of her mother's second marriage, the limitation over of that interest ought to be considered as restricted to the same event, which had not yet happened.

But it was said to be very improbable, that the testator meant to dispose of his estate in one event only, especially as his daughter was the first object of his bounty; and that it appeared from several collateral circumstances, particularly the power given to his daughter, to dispose of the estate by her will, and the charge upon the wife and daughter to pay the several annuities and legacies mentioned in the will, that he intended them to take under the will, without any restriction to a particular event.

In answer to this objection it was observed, that the instances of wills applying to one event only are not unfrequent; though it must be allowed, that the presumption of intention is, in most cases, favourable to a general disposition in all events. The in-[313]-tention must be taken from the words of the will; and if these words necessarily restrain the operation of the will, general presumption cannot take place. The power to the daughter of disposing of the estate by will, proved nothing with regard to the events, in which she was to take under the will; but only that, in what ever event she was to take, he intended her to have the power of disposing of the estate by her will. And the direction concerning the legacies and annuities, in so far as it respected the daughter, must be taken under the same restriction: these would not be