George Darley, Thomas Evans and Mar Jane his Wife, Frances Darley, Spinster, Peter James Darley, and Matthew Thomas Darley, v Thomas Martin, Alfred Rymer, and John Virtue
| Jurisdiction | England & Wales |
| Judgment Date | 11 June 1853 |
| Date | 11 June 1853 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 1368
IN THE COURT OF COMMON PLEAS AND EXCHEQUER CHAMBER
S. C. 22 L. J. C. P. 249; 17 Jur. 1125. Discussed, Cosby v. Millington, 1869, 30 L. J. C. P. 376. Followed, In re Venn, [1904] 2 Ch. 52.
1368 dairley v. martin 13c.b.s83, [683] cases argued and determined in the court of common pleas, in trinity term, in the sixteenth year of the eeign of victoria. The judges who sat in banco in this Term, were,-Jervis, C. J., Maule, J., Cresswell, J., and Talfourd, J. george barley, thomas evans and mary jane his Wife, frances darley, Spinster, peter jambs darley, and matthew thomas darley, v. thomas martin, alfred rymer, and john virtue. June 11, 1853. [8. C. 22 L. J. C. P. 249; 17 Jur. 1125. Discussed, Cosby v, Millington, 1869, 38 L. J. C. P. 376. Followed, In re Fenn, [1904] 2 Ch. 52.] A testator, by his will, made in the. year 1820, gave and beqtteathed to his daughter Mary, her executors, administrators, and assigns, certain leaseholds, for life; and, from and after her decease, he gave and bequeathed the. same "unto and amongst the lawful issue of his said daughter Mary, equally, share and share alike, with benefit of survivorship; and, in default of such issue, he gave and bequeathed the same unto his son George, for his naturallife, and, after his decease, to his children equally, share and share alike, with the benefit of survivorship."-He afterwards made a codicil, which contained a recital that he had by his will given and bequeathed the leaseholds to his son George "after the decease of his daughter Mary, and in default of her leaving lawful issue," arid then went on to provide, that, in the event of his son not indemnifying his estate from a liability he the testator had incurred on his account, all the bequests to his son (but so far as concerned the son only) should be revoked:-Held, that, interpreting the will by the codicil, the gift over in the former, "in default of such issue," being capable of importing a bequest over on failure of issue living at the death, it must be inferred from the latter that the testator employed it in that sense, inasmuch as in the codicil he referred to it as if it were a gift over in default of his daughter's leaving issue, which, as regards personalty, is tantamount to a gift over on failure of issue living at the death; and, consequently, that, assuming the -limitation in the will, if it stood alone, would have conferred an absolute interest on the daughter, upon the true construction of the will and codicil taken together, such gift was subject to a good executory bequest over in favour of the children of the testator's son. This was an action of ejectment commenced by writ [684] issued on the 12th of April, 1853, in which the plaintiffs, some or one of them,.claimed to be entitled to a leasehold messuage and premises known as No. 48, Dorset Street, in the parish of St. Marylebone, in the county of Middlesex, and to another leasehold messuage and premises known as No. 42, Beaumont Street, in. the same parish and county. The defendants appeared and defended for the whole of the premises; and this case was stated in pursuance of an order of Cresswell, J., dated the 15th of April, 1853. Before and at the time of making his will hereinafter mentioned, and from thence until and at the time of his death, George Darley was possessed of certain personal property, and, amongst it, of certain leasehold messuages, with the appurtenances, held by him for certain long terms of years, that is to say, two leasehold messuages, with the appurtenances, known as Nos. 7 and 8...
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