Lees v Mosley and Another
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1835 |
| Date | 01 January 1835 |
| Court | Exchequer |
English Reports Citation: 160 E.R. 241
IN THE COURT OF EXCHEQUER IN EQUITY
S. C 5 L. J. Ex Eq 78. Discussed, Montgomery v. Montgomery, 1845, 3 Jo. & Lat 56, 8 Ir. Eq R. 740. Applied, Phillips v. Phillips, 1847, 10 Ir Eq R 517 Discussed, Roddy v. Fitzgerald, 1858, 6 H I, Cas 881; Warren v Travers, 1868, Ir. R 2 Eq. 461. Applied, Morgan v. Thomas, 1882, 8 Q B D 577
[589] lees v mosley and another Dec 18, 19, 1835; Feb 24th, 1836 - Testator devised as follows -" I give and devise all that my freehold lease in P , and all and every my chief rents in the town of M., and also my two warehouses in the said town, unto my two sons, H. J. and O , in moieties, as tenants in common, and not ag joint tenants, in such manner and subject to such charges as hereinafter mentioned (that is to say), as to one moiety or equal half part thereof to my son H. J. for life, with remainder to his lawful issue and their respective heirs, in such shares and proportions, and subject to such charges as he the said H. J. shall by deed or will appoint; but in case my said son H J. shall not marry and have issue who shall attain the age of twenty-one years, then to my son 0. in fee ." Held, that H J. took an estate for life in the moiety, with remainder to his children as tenants in common in fee.-Whatever be the prima facie meaning of the word "issue" in a will, it is not a technical expression, and will yield to the intention of the testator to be collected from the words of the will, and therefore it requires a less demonstrative context to shew the testator's intention in regard to the word "issue " than in regard to the technical expression "heirs of the body." [S. C 5 L. J. Ex Eq 78. Discussed, Montgomery v. Montgomery, 1845, 3 Jo. & Lat 56, 8 Ir. Eq R. 740. Applied, Philhps v. Phillips, 1847, 10 Ir Eq R 517 Discussed, Roddy v. Fitzgerald, 1858, 6 H I, Gas 881 ; Warren v Tiavers, 1868, Ir. R 2 Eq. 461. Applied, Morgan v. Thomas, 1882, 8 Q B D 577 ] Before the Lord Chief Baron, Parke, B., Alderson, B, and Gurney, B. Robert Feilden, by his will, after bequeathing the bulk of his personal property to his wife, and after devising various real estates in the counties of Lancaster and Chester to his eldest son Robert Moseley Feilden in fee, devised as follows -"I give and devise all that my freehold lease of a farm in Prestbury, in the county of Chester, called Barber's tenement, and all and every my chief rents in the town of Manchester, and also my two warehouses in Poolfold, in the said town (subject to a mortgage for 40001. secured thereon), unto my two sons, Henry James and Oswald Feilden, in moieties, as tenants in common, and not as joint tenants, in such manner and subject to such charges as hereinafter mentioned, that is to say, as to one moiety or equal half part thereof, to my son Heniy James for life, with remainder to his lawful issue and their respective heirs, in such shaies and proportions, and subject to such charges as he the said Henry James shall by deed or will appoint, but in case my said son Henry James shall not marry and have issue, who shall attain the age of twenty-one years, then I give and devise the said moiety to my son Oswald, and his heirs for ever." And as to the other moiety of the said farm, chief rents and warehouses, the teatator gave and devised the same to his son Oswald and his heirs absolutely for ever. At the date of the will and of the death of the testa-[590]-tor, Henry James Feilden was a bachelor. Upon the death of the testator he entered upon and suffered a recovery of his moiety of the property so devised to himself and Oswald, and the whole was afterwards conveyed to the defendants as trustees for sale. The property having been put up for sale by auction in lots, the plaintiff attended at the sale, and was declared the purchaser of Lot 1, which compiised the warehouse at Manchester. He accordingly paid his deposit, and entered into a written agreement with the vendors to complete the purchase, upon having a good title made to him He afterwards, however, upon learning the state of the title under the fore- 242 LEES V. M08LEY 1 Y & C. EX. 591. going wfll, refused to complete his purchase, contending that Henry James Feilden having only a life estate in the property devised to him, the recovery suffered by him was inoperative to convey his moiety of the estate to the defendants The defendants, on the other hand, insisting on their title to sell, the present bill was filed, praying for the delivery up of the agreement, and the return of the deposit; and the question at the hearing was whether Henry James Feilden took an estate for life, or an estate tail under the will. The rase originally came on and was paitly heard before Alderson, B., at Gray's Inn Hall, when his Lordship reserved it for fuither argument before the full Court, on account of the general impoitance of the question Mr. Preston, Mr. Duckworth, and Mr. Lynch, for the plaintiff. The question is whether the children of Henry James Feilden take by descent from their father, the words of the devise creating an estate tail in him, or whether they take as purchasers in their own right. We contend for the latter proposition. A gift to A. and his issue singly is beyond doubt an estate tail King v Mellmg (1 Ventr. 232). A devise to one for life, and after his decease to his issue, standing singly, is a gift to him as tenant in [591] tail, for the purpose of including all his descendants. It may be conceded alao that where there is a gift to one for life, and after his decease to his issue or issue male as tenants in common and their heirs, it has, under circumstances, been held to be an estate tail: King v. Buichell (Ambl 379 ; 1 Eden, 424) But in that and similar cases there was a limitation over, on an indefinite failure of issue of the parent. In such cases the estate has been held to be an estate tail to effectuate the general intention of the testatoi, and that the remainder over may take effect. If the gift here had been to the "heirs of the body," as in tfhelky's case (I Rep 93), then, though the gift to the parent might be in express terms for life, that taken singly would not have excluded the estate tail but here the gift is to the " issue," with superadded words of limitation, "and their hens" The issue, theiefore, are capable of taking a fee simple as purchasers, and it is for their benefit to do so. The gift, therefore, is clearly a gift to the parent for life, with remainder to his children as purchasers in fee Theie is no occasion to hold it to be an estate tail in the parent, because the children themselves take an estate of inheritance It is unnecessary to have recourse to the general intention in opposition to the particular intention But then it will be said that there is a limitation over in this case The terms of that limitation, however, instead of supporting the construction of an estate tail, defeat it. The ulterior gift is not to take effect upon a failure of issue generally, hut in an event totally distinct from it, and which might have excluded the issue, namely, "in case my said son shall not marry and have issue who shall attain the age of twenty one years." In Doe d Davyv. Buintall (6 T R 30; IB & P 215) there was a limitation of the same nature. The gift was in one entire clause, to M O and the issue of her body as tenants in common The limitation over was [592] " in default of such issue, or living such they should all die under the age of twenty-one years," and the Court held that the issue took as purchasers as tenants in common in fee The fee spuing up from the limitation over In this case Lord Kenyon relied on Loddmgtou v Ktine (1 Salk. 224), in which the devise was to A. for life, with a limitation to his issue male and their heirs for ever, and no limitation over upon a failure of issue generally, and the Court held that A. took an estate for life. Doe d Lo-mj v Laming (2 Burr. 1100) is an authority upon the same point. There the gift was to A. and the heirs of her body, and their heirs, and there was no limitation over on failure of issue. It was contended that " heirs of the body'' must of necessity be words of limitation, and not purchase, but Lord Mansfield combated that notion, and held, under the circumstances, that the heirs of A.'s body took as purchasers in fee Right d tfh&tttnidgr, v. Oreber (5 B & C. 866 , 8 D. & R 718) and Doe d Cooper v Colli* (4 T. R 294) are authorities to the same effect, there being no limitation over in cither case after a failure of issue generally. In Wilkof v Bellaer? (Turn Russ. 491) the devise was to H. T. W. for life, and after his decease to such of his children as he should by will appoint, and to their heirs , and for want of such appointment, to the heirs of the body of the said H T W. and their heirs. Then followed a limitation over, like that which occurs in this case, namely, that in case H T W should happen to die without issue, then from and immediately after his decease, the testator devised the property to another person for her life,(/) with limitations over The Court was so (/) See Bat low v. Sailer, 17 Ves. 482. 1 Y. SO. EX.H3. LEES 1'. MOSTLY 243 strongly of opinion that H T. W. took only a life estate, that the purchaser was not compelled to take the [593] title. Jet i on v. W right (2 Bhgh, 1) is distinguishable from the present case. That was simply an estate tail, and there was nothing to hinder it from being so considered, except the word " child "...
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