Page:The English Reports v1 1900.pdf/1419

far as the same gave the parties liberty to proceed at law to recover the possession of the said estate, called the Swell estate, and instead thereof, his Lordship ordered that a case should be made for the opinion of the Court of King's Bench, and that the question should be,

Whether the reversion in fee of and in the manor of Lower Swell, and other the premises there, and in Upper Swell and Stow-upon-the-Wold, did pass by the will of the testator Edward Atkyns, the plaintiff's late father, to, and thereby became vested in, the said Dorothy Atkyns, John Wright junior, and the defendant John Liotard, in trust for the said testator's younger children.

The Judges, after having the case argued, on the 26th of the same month certified their opinion in the words following, viz.

We are of opinion, that the reversion in fee of the manos of Lower Swell, and other the premises there, and in Upper Swell and Stow-upon-the-Wall, did pass, by the express words of the will of the testator Edward Atkyns, the plaintiff's late father, to the trustees in the will named, in trust for the said testator's younger children.

On the 28th of July 1778, the cause came on to be heard before the Lord Chancellor Thurlow, on the certificate, when his Lordship was pleased to order, that the certificate should be confirmed; and that the manor of Lower Swell, and other the premises there, and in Upper Swell and Stow-upon-the-Wold, mentioned in the certificate, should be sold, with the approbation of the Master, with the usual directions; and the money to be produced by the sale was ordered to be applied in like manner as the monies arising from the estate directed to be sold by the decree of the 17th of July 1765. And it was farther ordered, that the Master should tax all parties their costs of the said suit, and that such costs should be paid out of the money to arise from the sale of the said estate.

The appellant, conceiving himself aggrieved by the said decree of the 28th of July 1778, so far as the same ordered the Judges certificate to be confirmed, appealed therefrom to the [414] House of Lords, contending (A. Wedderburn, J. Wallace, W. Ainge), that this Swell estate was not expressly devised in any part of the will; nor were there any words in the will, though such words are very common, declaring an intention to devise estates in reversion, as well as in possession; nor were there any words in the will which could be construed to comprize it, except the words, "or elsewhere in the county of Gloucester." And though this Swell estate is in that county, and therefore might possibly pass under those words, if it appeared to have been the testator's intent that it should, yet that those words ought not to have so large a construction, unless such an intention did appear; and much less, where the intention appeared, or might be presumed, otherwise; but those words should rather be considered as having been inserted out of caution, with a view more certainly to comprise in the devise the whole of the Pinbury estate, under an apprehension that some part of that estate might possibly be situate in some parish, village, or place, not before named; as it is very common, in bequests of personal estates, to confine the words "and other effects," or such like general words, to things ejusdem generis. That it appeared, from the whole complexion of the will, that the devise thereby made, was intended to be confined to the Pinbury estate: for first, he uses the word my, which seems rather applicable to estates in possession, than in reversion; and secondly, the estates which he describes, were estates in possession, and it was unlikely that he should couple therewith an estate in reversion, without declaring particularly his intention; and thirdly, for that the estate which passed by the devise, was directed to be sold, and as the capital of the purchase money was to be paid to his younger children when of age, and the interest of such money in the mean time was to be applied for their maintenance, it is to be inferred, that such sale was to be made immediately after his death; whereas it was highly improbable, that the testator could mean that his reversion of the Swell estate should be sold as a reversion, i.e. before it should come into possession, because it might, as it was expectant on so many estates tail, be, with the strongest reason, deemed to be of no real value; and such a reversion is, in the eye of the law, considered of so trifling a value, as not to be assets in the hands of an heir, though, in the case of events turning out so fortunately as they had here, that, either from the favourable intention, or supineness of the tenants in tail, the reversion in fee should be suffered to come into possession, the value would be very considerable; and fourthly, for that