Lewis v Rees
| Jurisdiction | England & Wales |
| Judgment Date | 24 November 1856 |
| Date | 24 November 1856 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 1052
HIGH COURT OF CHANCERY
S. C. 26 L. J. Ch. 101; 3 Jur. (N. S.) 12; 5 W. R. 96. See Cooper v. Kynock, 1872, L. R. 7 Ch. 403.
Deed. Construction. Contingent Remainders. Trust to Preserve. Estate in Fee. Estate pur autre vie. Voluntary Settlement. Stat. 27 Eliz. C. 4. Fraud.
[132] lewis v. rees. Nov. 14, 15, 24, 1856. [S. C. 26 L. J. Ch. 101; 3 Jur. (N. S.) 12 ; 5 W. R. 96. See Cooper v. Kynock, 1872, L. R. 7 Ch. 403.] Deed. Construction. Contingent Remainders. Trust to Preserve. Estate in Fee. Estate pur autre vie. Voluntary Settlement. Stat. 27 Eliz. c. 4. Fraud. Limitation in a deed to trustees " and their heirs" (without words restricting it to the lives of preceding tenants for life), upon trust to preserve contingent remainders. Held, that, although the omission of such words was probably an oversight, yet, the instrument being, a deed, the Court could not construe the limitation as restricted, notwithstanding an estate in fee was a larger estate than was required for the purposes of the trust, and the limitation was repeated in a subsequent part of the deed, and was followed by a term of years in a third party, upon trust to raise portions, and by a power for the tenants for life to grant leases. To justify the Court in restricting such a limitation by deed to an estate pur autre vie, it must be shewn that the intention of the parties, as manifested by the deed, cannot be carried into effect, unless the limitation be so restricted. Distinction in this respect between deeds and wills. In the latter, a greater latitude is allowed in the construction of legal terms, the testator being supposed i/nops Purchaser for value from the heir not entitled, under 27 Eliz. c. 4, to set aside voluntary conveyance by ancestor. Burrell's case (6 Rep. 72) explained, and Jones (lessee of Moffett) v. Whittaker (1 Long. & Town. 141) observed on. By indentures of lease and release, dated 1778, being a settlement made subsequently to the marriage of John Lewis and Anne, his wife, lands in the county of Caermarthen, and of which John Lewis was then seised in fee-simple, were released and conveyed to Jones and Nicholas, [133] their heirs and assigns, to such uses as John and Anne should jointly appoint; and in default of such appointment to the use of John for life, with remainder to the use of Anne for life; and from and after 3K.&J.134. LEWIS V. REES 1053 the determination of the said several estates for life, by forfeiture or otherwise, to the use of the said Jones and Nicholas, "and their heirs and assigns," in trust to preserve and support the contingent estate and estates, uses and remainders, thereinafter limited and created, from being defeated and destroyed ; and for that purpose to make entries and bring actions as occasion should require; but nevertheless to permit John and his assigns during his life, and Anne during her life, if she should survive him, to receive the rents and profits; and fr.om and immediately after the decease of the survivor of John and Anne, his wife, to the use of William Lewis, his executors, administrators and assigns, for a term of 100 years, upon the trusts thereinafter mentioned; and after the determination of the term of 100 years, and without prejudice to the same, but subject thereto to the use of Thomas Lewis, the son of John Lewis, and his assigns, for life; and from and immediately after the determination of that estate for life, by forfeiture or otherwise, to the use of the said Jones and Nicholas, and their heirs, in trust to preserve contingent remainders (ut supra), but nevertheless to permit Thomas Lewis and his assigns, during his life, to receive the rents and profits; and from and immediately after the decease of Thomas Lewis, to the use of the first and other sons of the said Thomas Lewis, successively in tail, with remainders over; and it was thereby declared that the term of 100 years was limited to William Lewis upon trust, by the ways and means therein expressed, to raise and levy immediately after the decease of John Lewis and Anne, his wife, the sum of £50' for the portion of Hester Lewis. " The indenture of release contained the usual powers for [134] the several tenants for life to demise the premises for terms not exceeding twenty-one years. In 1786 John Lewis died intestate, and leaving Thomas Lewis, his only son and heir at law ; Anne Lewis died in 1792. The power of appointment limited by the settlement of 1778 was never exercised. The £50 directed to be raised for the portion of Hester was raised and paid. The term of 100 years became attendant upon the inheritance, and was afterwards extinguished. By indentures of lease and release, dated 1793, being the settlement made previously to the marriage of Thomas Lewis and Elizabeth, his first wife, and by a recovery suffered in pursuance thereof, Thomas Lewis, in consideration of the marriage, and of a portion of £150 paid him by the father of Elizabeth, purported to settle the same estates to the use of himself for life, with remainder to Elizabeth for life, with remainder (subject to the terms for raising portions for younger children) to the first and other sons of the marriage successively in tail, with remainder .to the daughters, as tenants in common in tail, and if but one, then to such only daughter in tail, with remainder to his own right heirs. There was issue of this marriage two children, John, who died in 1820, a bachelor, and a daughter, who died in 1843 intestate, and leaving the Defendant her eldest son and heir at law. Elizabeth died in 1798; and in 1800 Thomas married a second wife, by whom he had one son, Henry, who died, leaving the Plaintiff his heir at law. [135] In 1835 Thomas Lewis died, and, upon his death, the Defendant entered into possession of the premises. The bill charged that the recovery suffered by Thomas was ineffectual to bar tha remainders expectant upon his life-estate, under the settlement of 1778. The prayer of the bill was for a declaration that the Plaintiff was entitled as tenant in tail in possession under the settlement of 1778; and for the usual consequential relief. It appeared that, in 1828, Thomas Lewis and Henry, then his eldest surviving son, joined in mortgaging the premises for a term of 500 years to one Evans, to secure £140 and interest; and the mortgage contained a covenant by Thomas Lewis (which, however, was never performed) to suffer a recovery " so as to bar the estate tail of the said Henry Lewis, and all remainders over, and enlarge the same estate tail into an estate in fee-simple." Mr. Willcoek, Q.C., and Mr. Renshaw, for the Plaintiff. The issue of the first son of Thomas Lewis being spent, the Plaintiff is entitled under the limitation in the settlement of 1778 to the second son and the heirs of his body. It will be argued that the Plaintiff's claim is barred by the recovery suffered by- 1054 LEWIS V. REES 3K. &J.136. Thomas Lewis in 1793, before his first marriage, and when, therefore, all the remainders to his sons and daughters were contingent and destructible by his act; but that consequence was prevented by the limitation to trustees to preserve contingent remainders, which being to them " and their heirs and assigns," without any words restricting it to the lives of preceding tenants for life, vested in the trustees the whole legal fee, so that remainders were equitable only, and consequently indestructible. [136] It will be said that the omission of words restricting the limitation...
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