Page:The English Reports v1 1900.pdf/1381

ance and portions by that settlement provided for the younger children, so far as either the jointure or portions should be deinandable. Did that necessarily imply, that Lady Rachael should survive the testator? No; no [353] more than it necessarily implied, that the younger children should die before the portions should be demandable; in fact, two of the younger children were dead, and by their deaths the portions were in part discharged: but would the respondents say, that they took these estates subject to such part of the portions as was so discharged? No; so much was sunk. And if Lady Rachael had died before the testator, would not her jointure have sunk in the same manner? There was therefore nothing in these words which necessarily imported, that the testator conceived he was to die in the life-time of Lady Rachael; and that the words, any other son or sons of mine hereafter to be born, necessarily meant future sons by Lady Rachael, and by her only; they were clearly and manifestly applicable to every son, and all sons of the testator by any wife whatsoever.

II. As to the customary or copyhold estates, it was said to be observable, that the testator made no express mention either of customary or copyhold estates, but only in two clauses of his will; viz. in that clause whereby he made a general devise to his trustees, of the lands in the counties of Monmouth and Glamorgan, purchased since his marriage; and in that other clause, where he directed his youngest son to surrender his right, title, and interest in his customary or copyhold estate in Monmouthshire, to the use of his eldest son, his heirs and assigns. The first of these clauses was expressly confined to copyholds purchased after the marriage; and in the latter, the copyholds were evidently introduced only to make a complete disposition of them to the eldest son; for without such a direction, they would have descended, some of them wholly, and the rest of them as to a moiety, to the youngest son in fee; the ancient copyholds in Monmouthshire being the greater part of the custom of Borough-English, and the rest of the custom of gavelkind. Now the ancient family copyholds in the county of Brecon were descendible to the heir at common law; it was not therefore necessary to take any notice at all of them in the will, in order to pass them to the eldest son, as they would of course descend to him in fee, if unnoticed in the will; but the testator having expressly mentioned his copyhold estates, only where it appeared that he intended to dispose of them otherwise than they would have gone in a course of descent, it was apprehended, that where he made no express mention of copyholds, he did not intend to take them out of their course of descent. This was the case with respect to the ancient family copyholds in the county of Brecon, which, as the testator took no express notice of in the general devise to the trustees, it was submitted, did not pass to them by the general words of that devise, but were intended to be left to descend to the heir at law; and this would appear still more evident by observing, that in the clause whereby the estates in the county of Brecon were devised to trustees, the testator used these words, equity of redemption of all and singular the said premises; now none of these family copyholds were then in mortgage, and [354] consequently, the words, equity of redemption, could not be applicable to them.

On behalf of the respondents it was said (A. Wedderburn, J. Dunning), that the point of greatest value in the cause, was that which the appellants Mr. and Mrs. Jones had brought in question by their appeal, respecting the settlement intended to be made by the will, of the reversion of the estates settled by Sir William Morgan to the uses in his marriage-settlement; viz. whether the limitations in the residuary clause of his will in favour of his brother Thomas Morgan, and his sons successively, and their issue, were well created? The respondents were in possession of the unanimous opinion of the Judges of the King's Bench, and of the Lord Chancellor, that these limitations were good; and it was conceived that this opinion was well founded. When Sir William Morgan made his will, he was seised in fee of the reversion of all these estates, subject to the uses created by his marriage-settlement. It had not been, nor could be doubted, but that he might have limited that reversion in fee to his brother and his sons and their issue, for such estates as were mentioned in the will; and as little could it be doubted, but that he meant so to limit it; for that was apparently a main object of his will: he was capable of devising; the property was subject to a disposition by devise; he had expressed his intention to devise; and the parties to whom he meant to devise were capable of taking.

But still it was said, that the limitations in the will could not take place, because they were introduced by the following words: In case my said two sons now living, or