Doe, on the Demise of Ralph William Lees, against The Reverend John Ford, George Ford, Thomas Boulton and Hannah his Wife, John Henry Clive, Esther Beech, Richard Sutton, and Joseph Allen and Esther his Wife
| Jurisdiction | England & Wales |
| Judgment Date | 25 November 1853 |
| Date | 25 November 1853 |
| Court | Court of the Queen's Bench |
English Reports Citation: 118 E.R. 1029
COURTS OF QUEENS BENCH AND THE COURT OF EXCHEQUER CHAMBER.
S. C. 2 C. L. R. 654; 23 L. J. Q. B. 53; 18 Jur. 420.
[970} doe, on the demise of ralph william lees, against the reverend john ford, geoege ford, thomas boulton and hannah his Wife, john henry clive, esther beech, richard sutton, and joseph allen and esther his Wife. Friday, November 25th, 1853. By marriage settlement, C., the husband, in consideration of the intended marriage and of the fortune of S., the wife, to which C. was to become entitled on the marriage, released land to the use of himself in fee until the marriage; and, after the marriage, to the use of himself for life; remainder to trustees to preserve contingent remainders; and, after the decease of C., in case 8. should survive him, to the use of S. for life; remainder to trustees to preserve contingent remainders; and, after the decease of the survivor of C. and S., in case there should be only one child of the marriage then living, and no other child then dead leaving issue, to the use of such child in fee; but, in case there should happen to be more than one such child living at the decease of the survivor of C. and S., or any child or children then dead leaving issue, then to the use of all such children of G. and S. and such children's children, respectively, for such estates as C. and S. should jointly appoint, and, in default of such appointment, as the survivor should appoint; and, in default of such appointment, to the use of all the children of the marriage as tenants in common and of the heirs of their respective bodies, with cross remainders; and, " for default of all such issue," to the use of four brothers and sisters of S. as tenants in common in fee.-S. survived C.: there were two children of the marriage, of whom both died, without leaving issue, in the lifetime of S. No appointment was made.-Held : by Lord Campbell C.J., Coleridge and Wightman Js., that the remainder to S.'s brothers and sisters took effect, as it was not a limitation in remainder after the determination of the estates given to the children as tenants in common in tail by the limitation immediately preceding, but was an independent limitation to take effect in case there were, at the time of the death of the survivor of C. and S., no issue in whom any of the previous limitations could vest.-Crompton J. dissentiente. [S. C. 2 C. L. R. 654; 23 L. J. Q. B. 53; 18 Jur. 420.] Ejectment for lands in Staffordshire. By consent, and order of Wightman J., a case was stated for the opinion of the Court. The facts fully appear from the following statement, which is taken from the judgment of Crompton J., after mentioned. "This was an action of ejectment, in which a special case was stated by consent for the opinion of the Court. 1030 DOE V. FORD 2 BL. ft BL. 871. "The question arose on the construction of a settlement made on the marriage of Lydia Sutton with John Clarke, by deeds of lease and release, dated 24th and 25th days of August 1803. [971] " By the release, in consideration of the intended marriage, and of the wife's fortune, amounting to 12001., which the husband was to become entitled to on the marriage, John Clarke, the intended husband, granted and released the premises in question to Hugh Ford and William Sutton and their heirs, habendum to them, their heirs and assigns, to the use of John Clarke, his heirs and assigns, until the marriage ; and, after the solemnization of the marriage, to the use of John Clarke for life, with remainder to Ford and Sutton and their heirs during the life of John Clarke, to support contingent remainders; and, from and after the decease of John Clarke, in case Lydia Sutton should survive him, to her use for life, remainder to trustees to preserve contingent remainders; and, after the decease of the survivor of John Clarke and Lydia Sutton, in case there should be one child only, whether son or daughter, of the marriage, then living, and no other child of the marriage should be then dead leaving issue, to the use of such child in fee; but, in case there should happen to be more than one such child living at the decease of the survivor of them, the said John Clarke and Lydia Sutton, or any child or children of them should be then dead leaving issue, then to the use of all and every one or more of such children of John Clarke and Lydia Sutton and such children's children respectively, for such estates, interests and proportions as the husband and wife should jointly appoint; and, in default of such appointment, as the survivor of the husband and wife should appoint, by deed or will; and, in default of such appointment, to the use of all the children of the marriage, share atid share alike, as tenants in common, and of the several and respective heirs of the several and respective bodies [972] of all such children lawfully issuing; and, if one or more of such children should happen to die without issue of his or her bodies or body, then, as to the original part or share, or parts and shares, of such child or children whose issue should so fail, as well as to subsequently accruing parts and shares, to the use of the remaining and others of the said children, if more than one, and the heirs of their respective bodies, equally to be divided between such remaining and other children, share and share alike, as tenants in common; and, if there should be but one such remaining or other child, then to the use of such child, and the heirs of his or her body ; and, for default of all such issue, to the use of the said William Sutton and three other persons, the four being brothers and sisters of Lydia Sutton, as tenants in common in fee. "There was issue of the marriage, Ann Clarke, who died in the year 1814, under age and without having been married, and John George Clarke. John Clarke, the settlor, died in the year 1825, intestate, leaving his widow Lydia Clarke and hia son John George Clarke him surviving. John George Clarke died intestate, without having been married, in 1851, in the life time of his mother Lydia Clarke, who died later in the same year 1851. The lessor of the plaintiff was the heir at law both of John Clarke, the settlor, and of John George Clarke, his son. "No appointment was ever made under the settlement. "The defendants represent the four persons in whose favour the ultimate limitation in the settlement was made." The question for the opinion of the Court was stated [973] to be : Whether, in the events which happened, the limitation in the hereinbefore stated indenture of settlement to the use of W. Sutton, A. Mycock, H. Ford and M. Catton, and their respective heirs and assigns, took effect. If it did, a Nolle prosequi to be entered immediately after the decision of the case or otherwise as the Cuurt may direct: but, if the above mentioned limitation failed of effect, judgment to be entered for the lessor of the plaintiff. The case was argued in last Hilary Term (a), and again in this Term (i), by Rudall for the plaintiff' and Phipson for the defendants. The points are so fully stated, in the following judgments, as to render a report of the arguments unnecessary. (a) January 25th, 1853. Before Lord Campbell C.J., Coleridge, Wighttnan and Crompton Js. (i) November 15th, 1853. Before the same Judges. 2 BL. & BL 974. DOfi V. FORD 1031 Cur. adv. vult. There being a difference of opinion on the Bench, the learned Judges now delivered judgment seriatim. Crompton J., after...
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