Page:The English Reports v1 1900.pdf/1356

affected by this construction; for whether the estate passed under the will, or as an undisposed residuum, it must be subject to the burthen of the legacies and annuities, as well as of the debts and funeral expences; besides, the exception of the two annuities of £400 each, which being for the life of the wife, of course determined at her death, shewed, that the testator had in view a limitation, to commence only during the life of the wife.

But further; in whatever events the will might operate, the daughter took under it the absolute interest, and the limitation over was void for the bequest to the daughter not being accompanied with any words of limitation, the absolute interest must thereby pass, unless a limitation could be raised by implication, to confine it to an interest for life; but implications are never raised, unless in favour of the person to whom the estate is given; and no implication ought to be raised in favour of remote relations to the prejudice of an only daughter. The limitation to the family of Adolphus, upon the death of the daughter without leaving issue, was also void, upon the ground of being too remote a contingency; for the words dying without issue, and dying without leaving issue, rust, in the intention of the testator, mean the same thing; viz. a failure of issue at the time of the death. The rules of law, on principles of general policy, have determined a limitation of personal estate after dying without issue, to be void, and the same principles equally extend to limitations after dying without leaving issue. And there is no case in which words of implication, instead of giving an estate, have been applied to restrain the general interest, passing under the express limitation of the will; it was therefore hoped, that the decree would be reversed, in the part complained of.

On behalf of the respondent it was insisted (W. de Grey, C. Yorke), that the testator meant to dispose of his whole estate, and not to die intestate as to any part of it. He had given it to his wife, during her life or widowhood; after her death or second marriage, he devised it to his daughter absolutely, in case she should have issue; but if she should leave no issue, then it was given to the family of Adolphus; and it was manifest, that the contingent devise over to them, referred to the time of the daughter's death; because the testator had enabled her so far to defeat it, as by making a will, which must take effect at her death, to distribute it unequally among the objects of that devise, and even to exclude [314] some of them, provided her disposition should be made within the circle of the testator's family. That all the adjudged cases upon this subject, in which such devises over of personal estate have been held void, are cases of perpetuities, where the first devisee has taken an absolute estate tail (which amounts to the ownership of a chattel) not defeasible by any contingency to take effect within a reasonable time, such as lives in being, or 21 years beyond, which is the utmost limit known in law, for the commencement in possession of a springing use, or any executory devise whatever; but the present case was manifestly distinguishable from these authorities, because the devise in favour of the respondents depended merely on the contingency of the daughter's leaving or not leaving issue at the time of her death; an event which the law would expect, and not consider like the general failure of issue at any uncertain distance of time, as too indefinite and remote. Lastly, that the construction attempted, to make an intestacy in case the widow should not marry again, was contrary to the whole scope of the testator's will, however defective and inaccurate the words might be. After the decease of his wife, the daughter was plainly intended to be the devisee of his estate; but in case the mother should marry again, the estate should be, as the will emphatically expressed it, for her immediate use and behoof; that is, even during the mother's life-time. The decree therefore was just and right, and ought to be affirmed.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed, and the decree therein complained of, affirmed. (M. S. Jour. sub anno 1768–9, p. 722.)