Bowen v Lewis
| Jurisdiction | England & Wales |
| Year | 1883 |
| Date | 1883 |
| Court | House of Lords (England) |
Will - Devise - Construction - “Estate” - “Child or Children” - “Dying without Issue” -
By a will made in 1820 the testatrix said “I give and devise unto my eldest son Thomas all my real and freehold estate and all leases and leasehold premises now in my possession (subject to the payment of the rents and the performance of the covenants mentioned in the said indentures of leases) during the term of his natural life, and after his decease to his legitimate child or children (if there be any); but if he dies without issue my will is it may go unto my other son William during the term of his natural life, and afterwards to his legitimate child or children (if any); but if he should likewise die without issue my will is it may go to my daughter Mary and to her heirs and assigns for ever.”
The will then gave legacies to the second son and the daughters, with provisions for the daughters, to be paid in the first instance by Thomas, but to be repaid in part or in whole to him in certain events by his successor in the estate. Thomas died without issue.
Held, by EARL CAIRNS and LORDS BLACKBURN and FITZGERALD, affirming the decision of the Court of Appeal, that reading the whole will together Thomas took an estate tail in the realty.
Contrà, by the EARL OF SELBORNE L.C. and LORD BRAMWELL, that Thomas took an estate for life, with remainder to his children (if any) in fee as purchasers.
APPEAL from an order of the Court of Appeal.
The action was brought by the respondent against the appellants to recover possession of a house and farm of about six acres at Carvarchell, Pembrokeshire, and mesne profits. At the trial at Haverfordwest Assizes in July 1882 before Manisty J. without a jury the following facts were proved:—
Mary Thomas of Carvarchell being seised in fee of the house and farm made her last will on the 2nd March 1820, the material parts of which were as follows:—
“I give and devise unto my eldest son Thomas Thomas all my real and freehold estate and all leases and leasehold premises now in my possession (subject to the payment of the rents and the performance of the covenants mentioned in the said indentures of leases) during the term of his natural life, and after his decease to his legitimate child or children (if there be any); but if he dies without issue my will is it may go unto my other son William Thomas during the term of his natural life, and afterwards to his legitimate child or children (if any), but if he should likewise die without issue my will is it may go to my daughter Mary Bevan and to her heirs and assigns for ever. But this bequest and devise is nevertheless subject to the following payments and restrictions, that is to say:— If my son Thomas shall live in the possession and enjoyment of the said real estate for fourteen years the whole of the sums hereinafter by me bequeathed shall be paid by him alone, and his heirs or assigns shall have no claim upon his successor for repayment of any part of the same; but should he die in less than fourteen years after coming into possession of the said estate and leaving no issue, my will is that he shall pay only a part of the said sum, that is, according to ten pounds for every year he shall be in possession, and the person succeeding him in the possession of the said estate shall before he shall have possession repay unto the heirs executors or assigns of my said son Thomas Thomas, whatever shall have been paid by him of the said sums hereinafter to be bequeathed above ten pounds for every year he shall have been in possession, and should his successor die without legitimate issue before the expiration of the remainder of the fourteen years, his heirs executors or assigns shall have the like claim on his successor as in the former case. I give and bequeath unto my daughter Elizabeth Loyn the sum of two shillings and sixpence. I give and bequeath unto my said son William the sum of twenty pounds. I give and bequeath unto each of my daughters following, viz.:— Mary, Phebe, Amy, Anne, and Margaret the like sum of twenty pounds each, the whole of the said legacies to be paid by my executor, hereinafter named, within twelve calendar months after my decease. I also give and bequeath unto each of my daughters as shall continue unmarried at the time of my death the whole of the stock and crop, implements of husbandry and household furniture, to be divided among them, share and share alike. And, moreover, my will is that my last mentioned daughters shall be maintained and provided for in neat, lodgings, and washing for five years after my decease if they remain so long unmarried (if one or any of them should marry before the expiration of the said five years, she or they shall be provided for until their marriage only), by the person in whose possession the real estate before mentioned and devised shall be, or if they or either of them shall prefer it, to be paid three pounds each (and support themselves elsewhere), that is, three pounds each annually for the term and according to the rule above mentioned by the said mentioned person. The residue and remainder of my property of what nature and kind soever the same may be (after paying my just debts, funeral expenses, and the expenses of proving this will) I give and bequeath unto my said son Thomas Thomas, and I nominate, constitute, and appoint him the sole executor of this my last will and testament, hereby revoking all other will or wills by me before made. In witness,” &c.
The testatrix died on the 29th of June 1820 leaving her surviving two sons, viz., her eldest, Thomas Clement Thomas, (hereinafter called Thomas) and William Thomas (hereinafter called William). Thomas entered into possession of the house and farm on the death of his mother, and on the 3rd of January 1854 duly executed and enrolled a disentailing deed, under which the house and farm ultimately in 1879 vested in the respondent. Thomas demised the property to the appellant Bowen, and died in 1862 without issue; and on his death his widow received the rents from Bowen until her death in 1878. William died in 1874 leaving a son, the appellant John Keys Thomas, who in 1879 demised the property to the appellant Bowen.
Manisty J. held that Thomas took an estate tail, and directed judgment for the plaintiff, the present respondent, for possession and £56 for mesne profits for four years.
The Court of Appeal (Brett M.R. Cotton and Bowen L.JJ.) affirmed this decision on the 24th of April 1883.
The appeal was twice argued; first on the 20th, 23rd and 24th of June before the Earl of Selborne L.C. and Lords Blackburn and FitzGerald, and secondly on the 28th of July before the Earl of Selborne L.C., Earl Cairns, and Lords Blackburn, Bramwell, and FitzGerald.
J. T. Crossley Q.C. (B. Francis Williams and Le Breton with him) for the appellants:—
The devise includes leaseholds, but it is understood that they have all run out and the question is as to the freehold house and farm. The intention of the testatrix was to provide for all her children: Thomas first and his children (if any): if he had no children, then for William and his children; Thomas took (in this view) an estate for life only with remainder to his eldest and other children in fee; if more than one, as joint tenants. The word “estate” imports a fee: and carries the inheritance, not only the corpus but all the interest of the testator: 2 Jarman on Wills (4th ed.) 275; Montgomery v. MontgomeryF1, per Sugden L.C.; and see Clifford v. KoeF2. Under such a will as this the parent does not take an estate tail, but the fee vests in the children: Roddy v. FitzGeraldF3, per Crompton J.; Bradley v. CartwrightF4; Robinson v. RobinsonF5. “It is clear that where the word ‘estate’ occurs elsewhere in the same will in company with express words of limitation in fee, its operation to confer the inheritance is not thereby restrained”: 2 Jarman on Wills, 278; Uthwatt v. BryantF6; Ibbetson v. BeckwithF7; Coltsmann v. ColtsmannF8, per Earl Cairns (where “property” was held to pass the fee); and Maden v. TaylorF9.
The words “if he dies without issue” are not “without leaving issue,” and mean “if he dies without having had issue.” Coming after the words ‘child or children’ they have a referential construction only, 2 Jarman on Wills, 458 (4th ed.), and mean “if he dies without children.” “It is well settled that words importing a failure of issue (without the word such), following a devise to children in fee simple or fee tail, refer to the objects of that prior devise and not to issue at large”: 2 Jarman on Wills, 459 (4th ed.); Ginger v. WhiteF10, where Willes C.J. held that “issue” meant such issue as the testator had mentioned before; and Goodright v. DunhamF11.
[EARL CAIRNS referred to Robinson v. HicksF12. His Lordship also drew attention to the clause in the present will, “should his” (Thomas's) “successor die without legitimate issue,” which might seem to imply that Thomas's children would not take in fee.]
That clause is so worded that it would not come into operation if Thomas died without children, and the words “his successor” apply to William or William's children. As to the rules for observing a testator's intention see Sweeting v. PrideauxF13; Towns v. WentworthF14.
Bowen Rowlands Q.C. (Abel Thomas with him) for the respondent:—
Thomas took an estate tail by virtue of the words “if he dies without issue.” The word “estate” may carry the fee, but it depends on the intention of the testator and on the context: Key v. KeyF15; Doe d. Bosnall v. HarveyF16, per Holroyd J.; 2 Jarman on Wills (4th ed.) 476, citing Martin v. McCauslandF17; Morgan v. ThomasF18; Dalzell v. WelshF19 cited in 2 Jarman on Wills, 4th ed., 439, n.; Jesson v. WrightF20; Rex v. Marquis of...
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