Eno v Eno
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1847 |
| Date | 01 January 1847 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 1127
HIGH COURT OF CHANCERY
S. C. 16 L. J. Ch. 358; 11 Jur. 746.
[171] eno v. eno. May 1, 3, June 10, 1847. [S. C. 16 L. J. Ch. 358; 11 Jur. 746.] Keal estate was devised in 1778 to the son-in-law of the testator for his life, remainder to his daughter (the wife of such son-in-law) for her life, remainder to her first and other sons successively in tail, remainder to her daughters as tenants in common in tail, with cross-remainders between them; and, in default of such issue of his daughters, to such person or persons as she should by deed or will appoint. In 1841 the daughter, the donee of the power, executed a deed-poll of appointment, which, reciting the limitations of the estate by the will that she had not any issue of her body, and that she was desirous of exercising the power subject to the life interest of her husband and herself as thereinafter mentioned, appointed that, from and after the decease of the survivor of her husband and herself, "and there being a failure of issue of her, "v the said donee of the power, the estate should go, remain and be unto and to the use of the Plaintiff, his heirs and assigns for ever : Held, that this was a good appointment of the estate under the power. That the words "and there being a failure of issue of," &c., must be read either parenthetically, or as applying to the time of the death of the survivor of the donee of the power and her husband. 1128 ENO V. ENO 6 HAKE, 172. That the construction that the donee might have intended to appoint, or to reserve a power to appoint, to the female descendants of sons, or to give such descendants the chance of taking by descent, would be merely conjectural; and, moreover, was excluded by the -express language of the will creating the power, which made no provision for female descendants of male issue, and rebutted by the great age of the donee, who was then without any issue. That the title of the Plaintiff under the appointment was" one which the Court, in a suit for specific performance, would compel the purchaser to take. A gift to children in tail not comprehending all the issue, followed by a limitation over in terms-" on failure of issue," will generally be read as meaning all such issue as are before mentioned, unless it appears from the context that other issue than these provided for were intended to take. If the question had arisen entirely under the will of the daughter, and the words "there being a failure of issue of," &c., had been found in that will, following limitations to her issue like those contained in the will of 1778, in this case, those words would have been construed to refer to a failure, not of issue generally-, but of such issue as the will had previously provided for. For the purpose of determining the meaning of such a limitation,, the principle of construction must be the same, whether the instrument be a deed or a will. This was a bill by the vendor for the specific performance of a contract for the sale of real estate. The title was objected to by the Defendant. The question which was the subject of the judgment in the cause was whether an appointment of the estate made by Mary Read, by deed-poll, dated in April 1841, in favour of the Plaintiff, his heirs and assigns, to take effec,t after the decease of Mary Eead, the appointor and her husband, and the failure of issue of the appointor, was too remote, or invalid as introducing the female descendants of the male issue of Mary Eead, who were not [172] objects of the power of appointment of which Mary Eead was the donee j or whether, having regard to the previous recitals in the* deed-poll, which referred to the want of issue of Mary Eead at the date of the deed, the appointment was not valid, as importing, not a general failure, but a failure of issue living at the death of the appointor and her husband. If the title of the Plaintiff should not be established by virtue of the appointment, another question was, whether the Plaintiff was not entitled to the estate under a will made by Mary Eead, prior in date to the deed-poll. The latter question it did not become necessary to decide. The words of appointment by the deed-poll, and the state of the title so far as it was affected by that instrument, are stated in the judgment. Mr. Eomilly and Mr. Metcalfe, for the Plaintiff, contended that the language of the deed-poll of 1841, appointing the estate from and after the decease of the survivor, "" there being a failure of issue of the said Mary Eead," must be read as descriptive of the fact which had been before recited, that Mary Eead, who was then of very advanced years, had no issue; or if not treated as words of description, that the issue referred to must either be deemed to be " such " issue as...
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