Ann Roddy and Others, - Plaintiffs in Error; Francis Fitzgerald, - Defendant in Error
| Jurisdiction | England & Wales |
| Judgment Date | 17 April 1858 |
| Date | 17 April 1858 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 1518
House of Lords
Mews' Dig. x. 1564; xii. 1112, 1125; xv. 1293. See note to Jesson v. Wright, 1820, 2 Bli. 1; and Van Grutten v. Foxwell (1897), A.C. 658; and Pelham-Clinton v. Duke of Newcastle, 1900 49 W.R. 12.
Devise - Estate Tail - "Heirs of the Body" - "Issue" - Contingent Remainders - Recovery.
[823] ANN RODDY and Others,-Plaintiffs in Error; FRANCIS FITZGERALD,- Defendant in Error [July 6, 7, 1857 ; February 15, April 17, 1858]. [Mews' Dig. x. 1564; xii. 1112, 1125; xv. 1293. See note to Jesson v. Wright, 1820, 2 Bli. 1; and Van Grutten v. Fox-well (1897), A.C. 658; and Pelham-Olinton v. Duke of Newcastle, 1900 49 W.R. 12.] Devise-Estate Tail-" Heirs of the Body "-" Issue "-Contingent Remainders- Recovery. Devise (in 1817) of a freehold estate for lives renewable for ever, " to my son W. during his life, and after his death, to his lawful issue, in such manner, shares, and proportions as he, by deed or will, shall appoint, and for want of such appointment then to his issue equally, if more than one; and, if only one child, to said child ; and in failure of issue of W.," to J. Another estate, consisting of fee simple lands, was devised in the same terms to another son, J. ; and on failure of the issue of J., it was to go- to W. J., and W., before the birth of any child to W. (J. himself never married), joined in a recovery as to th* lands devised to J., and to which W. afterwards succeeded in possession on J.'s death without issue. W. died, leaving four children; he had not executed any appointment, but during his life disposed of both descriptions of lands to creditors for value: Held that under these devises each of the first devisees took an estate tail by implication. Where in a devise there is a gift over on general failure of " issue," it is pre-1518 RODDY V. FITZGERALD [1857-58] VI H.L.C., 824 sumed that the word " issue " has been used by the testator as meaning " heirs of the body." When the word " issue " is so employed, it is for the party seeking to give it a meaning other than that which it frequently bears, to show clearly from the context of the will that the testator intended to give it a different meaning. The remainders here were contingent, and therefore the recovery suffered as to the fee simple lands operated as a bar to' them whether the first devisee did or did not take an estate tail. By an order of the Commissioners for the Sale of Incumbered Estates in Ireland, dated 18th December 1852, and made in a matter wherein Francis Fitzgerald was Petitioner, an ejectment was ordered to be brought in the Court of Common Pleas there, to determine the construction to be put upon the will of one Charles Roddy. These estates had been possessed during his life by William Eoddy, deceased, against whom Fitzgerald claimed as a judgment [824] creditor. Fitzgerald* was ordered to be the Plaintiff in the action, and Anne Roddy and others, the children of William Roddy, to be the Defendants. The cause was tried on the 17th June 1853, before Lord Chief Justice Monahan, and the jury found a special verdict, which set forth in substance the following matters : - Charles Roddy, of Clones, in the county of Monaghan, was, at the time of the making of his last will and testament, bearing date 21st day of September 1817, and thence until his death in 1822, seised in fee-simple of the lands of Tanatygarman, Corrardaghy, Drutaney, and Knocka.welt, with a sub-denomination called Golan, and also of a freehold estate for lives which had been granted to him and his heirs, was still subsisting, and was (by covenant) renewable for ever, of and in the lands of Carrigans and Clinumphry, with a sub-denomination called Salcony, all in the county of Fermanagh, subject to a devise for one life, still subsisting, of eleven acres of the lands of Knockawelt, bearing date the 1st November 1801, reserving a yearly rent of £13 Is. late currency. The testator, after bequeathing an annuity of £50 per annum to1 his wife (with power of distress and entry), charged on the lands of Clinumphry and Carrigans, proceeded thus:- " I give and devise unto my son, John Roddy, the aforesaid lands of Clinumphry and Carrigans, subject to' said annuity of £50, payable to his mother, to hold during his life and after his1 decease, I give and devise the same to his lawful issue in such manner, shares, and proportions as he may by deed or will duly attested limit, direct, or appoint, and in case of no such appointment then to his [825] issue equally share alike; and if only one child to such only child, and in case of said John dying without issue, I give and devise the said lands subject as aforesaid, to my son William and his lawful issue, with like power of appointment as1 before-mentioned; and in failure of such appointment to such issue equally, and if only one child then to1 such child; and in case of my son William dying without issue, I then give and devise the said lands subject as aforesaid to my son Thomas and his lawful issue, with like power of appointment, and for want of such appointment to his issue equally, or if only one child then to said child; and if my said son Thomas shall die without issue, then I give and devise said lands to my son Bernard, his heirs and assigns for ever." He then gave an annuity charged on the lands of Tanatygarman and Corrardaghy, with power of entry and distress in case of non-payment, and proceeded thus: " and subject to said annuity, I give and devise the said lands of Tanatygarman and Corrardaghy to my son William during his life, and after his death to his lawful issue in such manner, shares, and proportions, as he by deed or will duly attested, shall direct, limit, or appoint, and for want of such appointment to- his issue equally, if more than one child, and if only one child to said child; and on failure of issue of my son William, I give and devise said lands last mentioned, to my son John, and his issue with like power of appointment, and in case of no appointment to- such issue equally, and if only one child to such child, and for want of issue of my son John, I * The cause throughout the proceedings in Ireland and here was called by the name of Roddy v. Fitzgerald; but at a certain stage of it in Ireland, Fitzgerald's claim was disposed of, and Clifford, who was a mortgagee, went on with the case. 1519 VI H.L.C., 826 RODDY V. FITZGERALD [1857-58] give and devise such lands to my son Thomas and his issue, with the like power of appointment to ray son Thomas, and for want of such appointment to his issue equally, and if only on child to said child; and in failure of issue of my son Thomas, I give and devise said lands to my son Bernard, his heirs and assigns for ever. I give and devise [826] unto my son Thomas, the lands of Knockawelt and Drutaney, in the county oi Fermanagh, for his life, and upon his death, I give the said lands to his issue in such manner, shares and proportions as my said son Thomas shall by deed or will duly attested, limit, direct, or appoint, and for want of such appointment to his issue equally, and if but one child to said child, and in failure of issue oi my said son Thomas, I give and devise said last-mentioned lands to my son William and his lawful issue, with like power of appointment, and for want of such appointment to his issue equally; and if only one child to that child, and in failure of issue of my son William, I give and devise said lands to' my son John and his lawful issue, with like power of appointment; and for want of such appointment to his issue equally; and if hut one child to' said child ; and failing issue of my son John, I give and devise said lands to my son Bernard, his heirs and assigns for ever." The testator died 21st November 1822. Bernard Roddy, named in the will, was the eldest son of the said testator, but died in his lifetime without issue. At the time of the testator's death William Roddy was his eldest surviving son and heir-at law. Thomas Roddy, named in the will, died in 1825 unmarried and intestate. By two several indentures of conveyance, bearing date 9th August 1830, and 25th February 1831, John Roddy, after reciting that he was entitled to the freehold lands of Carrigans and Clinumphry, devised to him, by the will for the term of his life, conveyed the same to' his brother William Roddy (subject to the annuity), to hold for the term of the life of said John Roddy. In September 1833, in order to secure payment of £1500 due to a person named Fulton, William Roddy conveyed the lands of Tenatygarman and Corrardaghy, and those of [827] Drutaney and Knockawelt to Richard Jennings, for the purpose of afterwards suffering a recovering of the same, and in Michaelmas Term of the same year the recovery was suffered. Fulton afterwards conveyed to Clifford. William Roddy married in 1835, and had issue one child born in 1836, but which died in the same year, and he had also issue of the said marriage four other children, who were now the Plaintiffs in Error. John Roddy died 4th December 1846, intestate and without having had issue, leaving William Roddy, his eldest brother and heir-at-law him surviving. In January 1847, William Roddy (in whom all the devised lands thus centred) mortgaged the lands of Carrigans and Clinumphry to Clifford, in consideration of a farther loan of £850. William Roddy made his will, dated 28th September 1850, whereby in exercise of the power of appointment vested in him by the will of his father, he gave and devised to his four children, the Plaintiffs in Error, all his real and personal estate equally to be divided amongst them share and share alike. He died in April of the following year. Upon the facts stated in this special verdict, it was contended on behalf of the Plaintiffs in Error that according to- the true construction of the will of Charles Roddy, his devisees, viz., John...
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