James Parker (Devisee of Barrow), - Appellant; Edward Tootal, - Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 16 February 1865 |
| Date | 16 February 1865 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 1286
House of Lords
Mews' Dig. xv. 707, 1047, 1414. S.C. 11 Jur. N.S. 185; 12 L.T. 89; 13 W.R. 442; 34 L.J.Ex. 198; and, below, sub nom. Barrow v. Tootal, 7 H. and N. 962; 8 Jur. N.S. 991; 6 L.T. 472; 10 W.R. 357. Cited in Allgood v. Blake, 1872, L.R. 7 Ex. 359; Dias v. De Livera, 1879, 5 A.C. 134.
Will - Implication - Life Estate - "First Son severally and successively" - Estate Tail.
JAMES PARKER (Devisee of Barrow),-Appellant; EDWARD TOOTAL,- Respondent [Feb. 15, 16, 1865]. [Mews' Dig. xv. 707, 1047, 1414. S.C. 11 Jur. N.S. 185 ; 12 L.T. 89 ; 13 W.R. 442 ; 34 L.J.Ex. 198; and, below, sub nom. Barrow v. Tootal, 7 H. and N. 962; 8 Jur. N.S. 991; 6 L.T. 472; 10 W.R. 357. Cited in AUgood v. Blake, 1872, L.R. 7 Ex. 359 ; Dias v. De Liver a, 1879, 5 A.C. 134.] Will-Implication-Life Estate-" First Son severally and successively "- Estate Tail. Implication may arise from an elliptical form of expression, which necessarily involves and implies something else, or from a form of gift which cannot be rendered effectual, or a direction to do something, which direction cannot be obeyed without implying something else. Where, therefore, a will gave to T. an " estate for life, with remainder to the first son of the body of T. lawfully begotten, severally and successively in tail male," the words " and other sons " were introduced in order to prevent the words " severally, etc.," from being in effect struck out of the will, and T. was held to take an estate tail by implication. Words in a will indicative of a class must be taken to denote the class as it was constituted at the date of the will, or at the death of the testator. Where, therefore, there was a gift (after the happening of certain events) amongst " my daughters and their children," the child of a daughter who had died before the date of the will was held not to be entitled to a share of the property thus devised. A testator named Chorlton had two sons, Richard and James. [144] Richard had a son, Thomas, and died. Some years afterwards James married; and just before the birth of James's son the testator made his will, and died about two months after the birth of this son. By his will the testator devised " unto my grandson Thomas Chorlton, son of the late Richard Chorlton, all that, etc., for his own use during his natural life, with remainder to the first son of the body of the said Thomas Chorlton lawfully begotten, severally and successively in tail male of the name of Chorlton; and for want of such lawful issue of that name, either by my said grandson Thomas Chorlton or my said son James Chorlton, then I give, etc., amongst my daughters and their children," etc. The grandson Thomas entered, and while in possession suffered a recovery; he survived both his uncle James and James's son: Held, that taking all the words of the gift together, there was, by implication, an estate tail in the grandson Thomas, and that the recovery barred all right of ultimate succession in the daughters. This was an action of ejectment brought by John Barrow (of whom the Plaintiff in Error is the devisee) against the Defendant in Error, to recover a share of a freehold estate called the " Weaste," at Pendleton, in the county of Lancaster. The whole estate had formerly been the property of Thomas Chorlton, hereinafter called 1286 PARKER V. TOOTAL [1865] XI H.L.C., 146 the testator. At the trial at Liverpool, at the Summer Assizes of 1859, a verdict was entered by consent for the Defendant, subject to a special case. The testator made his will on the 5th September 1799, and died in December of that year. He devised to executors and trustees a freehold estate of inheritance for a term of 10 years in trust to pay debts and legacies, then to testator's wife for life; and then the will went on thus : " And immediately after the death or decease of my said wife, I give unto my grandson Thomas Chorlton, son of the late Richard Chorlton, all that my estate where I now live, and all that other estate and premises thereto belonging situate in Pendleton aforesaid, called or known by the name of Weaste estate, for his own use [145] during his natural life, with remainder to the first son of the body of the said Thomas Chorlton, lawfully begotten, severally and successively in tail male of the name of Chorlton; and for want of such lawful issue of that name, either by my said grandson Thomas Chorlton, or my son James Chorlton, then I give and devise the said estate where I now live and the Weaste estate amongst my daughters and their children, share and share alike, to hold unto them, his, her, or their heirs for ever, as tenants in common, but not as joint tenants." Richard Chorlton, the testator's eldest son, had died long before the date of the will, but had left a son, Thomas, who was the first- devisee; Thomas was not then married. James Chorlton was the second and only other son of the testator; he was married, and had a son born between the date of the will and the death of the testator. James died in 1804, and his son, the only child he ever had, died in 1825, while Thomas, the first devisee, was still alive. As to Thomas, the Case stated that " Thomas Chorlton, the grandson of the testator mentioned in the will, arid who wag the only son of Richard Chorlton, who survived his father (there having been two other sons who died in their father's lifetime, infants), survived the testator, and was his heir-at-law, and died in the month of October 1838, without having had any child, unless a child or children who died in infancy before his death." * In 1810, Thomas being then in possession of the estate, [146] suffered a recovery, and subsequently executed a conveyance, under which the Defendant claimed. On the death of Thomas, in 1838, without a child, it was alleged that the daughters succeeded to the property under the terms of the will.f There were six * In the course of the argument the Lord Chancellor noticed the defectiveness of this statement, and it was then agreed that it should be taken as a fact that there was no son of Thomas at the time the recovery was suffered, and that he had not had any son who had attained maturity. t In 1812 the question on the construction of the will came before the Court of Chancery (Chorlton v. Craven), on a bill for specific performance of a contract of purchase; and a case was sent to the Court of King's Bench, from which a certificate was returned that the vendor, Thomas Chorlton, could make a good title in fee simple to the estate. This certificate was confirmed by Lord Eldon. This case, as then heard, is not reported from either Court. In 1823 the construction of the will again became the subject of discussion, and then in the Court of Exchequer in equity. It was heard on exception to the Master's Report, and was argued by Mr. Preston and Mr. Duckworth in support of the exception, which affirmed, " First, that the vendor could not make a good title, because Thomas Chorlton did not take an estate in fee tail under the will, but only an estate for life; secondly, that the remainders over in this case were not contingent, and therefore not barred by the recovery; lastly, that a purchaser could not be compelled to take a title dependent, as this was, on a nice and difficult question of law, on the construction of an ambiguous will." Mr. Scriven was heard in support of the Master's Report, and Lord Chief Baron Richards took time to consider the case. He afterwards delivered judgment; but as he was then suffering from severe indisposition, said: "I am sorry to be obliged to confine myself to the simple declaration of my opinion that the exception must be overruled, and the report confirmed. We cannot, I think, read this will without seeing that it was evidently the intention of the testator to give to Thomas Chorlton a much larger estate than he would take under the construction which those who support the exception contend for : and I am of opinion that he took such an estate as enabled him to make a good title to the fee, by the means 1287 XI H.L.C., 147 PARKER V. TOOTAL [1865] daughters, and all of them, except the third, were married, and had male issue before the date of the will. The second, [147] Anne, married, and died in 1796, leaving John Barrow, her eldest son, who, in 1838, claimed his mother's share as her heir-at-law. He brought an action of ejectment against the Defendant, which was tried at the Liverpool Assizes, when a special case was agreed on. It was argued before the Court of Exchequer, and judgment given for the Defendant. On error to the Exchequer Chamber that judgment was affirmed.* Barrow having since died, Parker, whom he had made his devisee, continued the suit, and this proceeding in error was then brought. Mr. Manisty and Mr. Hardy for the Plaintiff in Error.-In this case, Thomas took only an estate for life; there is no implication of ail estate tail in his favour. The subsequent words have not the effect of so enlarging his estate, though they do by implication create an estate tail in the sons of James. But, at all events, the limitations to the daughters created vested'remainders in them. In construing the will, some attention must be paid to the state of the testator's family at the time of his death. His grandson, the first devisee, Thomas, was not married. James, the testator's second son, was married, and he had a son born just after the date of the will, and some little time before the testator's death. No doubt the testator's first object was to provide for Thomas, his heir-at-law; but his great purpose was to [148] secure the descent of his property to heirs male of the name of Chorlton, and therefore, after expressly giving an estate for life to Thomas, he gives, by implication, an estate tail to the sons of James. Failing both these, there is the limitation to the testator's daughters, several of...
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