Page:The English Reports v1 1900.pdf/1382

any other son or sons of mine lawfully begotten, hereafter to be born, shall die without issue male of their bodies, or the body of some or one of them, lawfully to be begotten; after their decease without issue male, etc. That these words postponed the time for the limitations in the residuary clause to take effect, till a general failure of issue of Sir William Morgan, as well by any after-taken wife as by his then lady; and that the children which he might have by any after-taken wife, not being provided for by the settlement, the limitations in question could only take effect as executory devises; and that as such they would be too remote, being after a failure of issue generally.

To this it was answered, that these limitations did not take effect as executory devises, but as immediate devises of the reversion in fee, subject to the estates created by the settlement; it certainly would be so according to Lord Holt's opinion in Badger v. Lloyd (1 Salk. 232; 1 Lord Raym. 523), unless the will postponed these limitations to failure of issue of Sir William by a second marriage. The question then arose, Had he a second marriage in view? The will was made in the same month in which he died, probably when he lay on his death-bed, within eight years after his marriage, when he had four children living by Lady Rachael, and it was not improbable that she might be then with child. By this will, he gave some specific things to Lady Rachael, and named her one of his exe-[355]-cutors, and one of the guardians of such and so many of his children as should be under age at the time of his death, and she in fact survived him. These observations, drawn from the will, destroyed every presumption that Sir William had in view a future marriage, or any children not provided for by his settlement. The will was adapted to the then circumstances of his family; he had such and only such children in view, as Lady Rachael might be guardian to; if the situation of his family had varied, the will was subject to his controul, and would have been varied also; he knew that the issue male of his marriage was provided for by the settlement, and the objects to whom he destined his large and ancient family estate, in failure of the issue male then provided for, were his brother and his sons, who would then become the male heirs of his name and blood. If he had happened to outlive Lady Rachael, and had married again and had issue, such subsequent marriage, and having issue, would have revoked the will; consequently, the children of any future marriage would not have been disinherited.

But supposing, that upon the fair construction of this will, it should be taken, that the residuary devise was postponed till failure of children by a future marriage; still it might well take place as a disposition of the reversion, by raising implied limitations in favour of his children and their issue male; for that estates may be raised by implication, as well as by express words, cannot be denied. As to other parts of Sir William's property not included in the settlement, but disposed of by the will, he limited the same to his sons and their issue male successively; and in failure thereof, to his brother Thomas Morgan and his sons, and their issue male: and these dispositions shewed, that the family of his brother were the objects he meant to provide for, in default of his own issue male. The powers of jointuring, portioning younger children, and leasing, extended to the testator's sons then born, and his after-born sons; and shewed conclusively, either that the sons of his then marriage were the only sons he had in view, or that he meant to give estates tail by implication to the sons of a future marriage; for if the sons to whose estates he postponed the limitations to his brother and his issue male, were not the sons provided for by the settlement, or sons meant to take particular estates under the will, all these powers were nugatory; as sons taking neither by the settlement or the will must have taken the fee-simple, and therefore wanted no such powers. He had given estates-tail by the settlement to the sons of that marriage; if he had in prospect sons of another marriage, he meant the like interest for them. It is not new to construe one part of a will by another; and nascitur ex sociis, is a rule of construction approved of, and used by Lord Chief Justice Hale.

The authority relied upon by the appellants, on this part of the case, was that of Lady Lanesborough v. Fox (3 Brown, P. C. 130); but it was conceived that the present case was different. In that case, by [356] the settlement of 1676, James Lane had an express estate for 99 years limited to him, with remainder to the use of the heirs male of his body by the will, on failure of issue of the body of James Lane, and for want of heirs male of the testator, the limitation was to his daughter Frances Lane; the opinion of the judges as delivered was,

That Lord James had by the settlement but an estate for 99 years, and that he took no other estate by the will; neither was his