Phillips v James
| Jurisdiction | England & Wales |
| Judgment Date | 01 July 1865 |
| Date | 01 July 1865 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 565
BEFORE THE LORDS JUSTICES.
S. C. 12 L. T. 685; 11 Jur. (N. S.), 660; 13 W. R. 934.
[72] phillips v. james. Before the Lords Justices. May 3, July 1, 1865. [S. C. 12 L. T. 685; 11 Jur. (N. S.), 660; 13 W. R. 934.] By marriage articles a father covenanted to convey an estate to trustees for the benefit ot his son T. J. during his life, with remainder " for the use and benefit of the issue of the said T. J. by the said M. M., his intended wife, their heira and assigns, for ever." The husband and wife both died, leaving a son and two-daughters. Held, by the L. J. Turner, affirming the decision of V.-C. Kindersley, that the settlement ought to be framed so as to give an estate tail to the son, with remainder to the daughters as tenants in common in tail, with cross-remainders, between them, dissentiente the L. J. Knight Bruce, who waa of opinion that the three children were entitled to the inheritance as tenants in common or joint-tenants. This was an appeal from a decision of Vice-Chancellor Kindersley on the construction ol certain marriage articles. The articles were entered into on the 14th of March 1825 between James James,, the father of Thomas James the intended husband, and John Morris, the father of Martha Morris the intended wife. The provisions of the articles were as. follows:- "First. James James, in consideration of the said intended marriage and upon, the conditions hereinafter mentioned, hath covenanted and agreed with the said John Morris to make and execute a proper conveyance of such part of his real estates called Cwm Crymych, situate in the parish of Llanfirnach, in the county of Pembroke, as is now in his own occupation, containing sixty acres or thereabouts, unto trustees, to be then appointed for the use and benefit of hia said son Thomas James during his natural life; and provided the said Martha Morris his intended wife shall survive him, for the use and benefit of the said Martha Morris during the time she shall remain his widow; and from and after the decease of the said Thomas James or the-intermarriage of his said intended wife Maftha Morris for the use and benefit of the issue of the said Thomas James by [73] the said Martha Morris his intended wife, their heirs and assigns for ever." This was made conditional on Thomas James paying to his father the sum of 150 in consideration of the estate so to be made over to him, and an annuity of 2 to Margaret James, daughter of James James, during her life. And James James on the above conditions agreed to perform his; part of the agreement under the penalty of 300, and John Morris on his part agreed with James James to pay to Thomas James on the solemnization of the marriage the^ sum of 100 as a marriage portion with his daughter Martha Morris. It was also-agreed that nothing in the articles should debar Martha Morris from dower, if she-should survive her intended husband. It was also agreed that in case of the death. 566 PHILLIPS V. JAMES 3 DB 0. J. * 8.74. of Martha Morris without leaving any isaue alive behind her, Thomas James should repay John Morris the whole of such property as he might have with hia intended wife Martha Morris. James James was at the date of the agreement seised in fee of Cwm Crymych, and died in 1828 without having made any settlement in pursuance of the articles. Thomaa James, however, had paid the 150, and had been let into possession and continued in possession till his death, whieh took place on the 3d of February 1864. His wife died in his lifetime. They had three children, all of whom survived their father, namely, two daughters, who with their husbands were the Plain tiffs, and one son, the Defendant William James. All three had children living at the death of Thomas James. Wm. James was the heir at law of James James and Thomas James, and the legal estate was vested in him by descent. The Plaintiffs filed their bill to establish their right to two-thirds of the estate and to have a partition. [74] Vice-Chancellor Kindersley on the 18th of March 1865 made a decree declaring that according to the true construction of the agreement of the 14th of March 1825, the Defendant Wm. James was entitled to an estate tail in Cwm Crymych, with remainder to his two sisters as tenants in common in tail, with cross-remainders between them in tail, and directing a settlement to be made according to that declaration. The Plaintiffs appealed, praying that it might be declared that the sisters and the Defendant Wm. James were entitled to the estate in equal third shares as tenants in common in fee. Mr. Glasse and Mr. Freeman, for the Plaintiffs, in support of the appeal. We contend that the three children take as tenants in common in fee. Taggart v Taggart (1 Sch. & Let. 84, 88) lays down the principle that under marriage articles, though without wards of severance, the issue take as tenants in common. This is clearly an executory agreement. The Vice-Chancellor decided on the strength of a case which was not cited in argument; Alpass v. Watkins (8 T. E. 576); Mmris v. Ward (Ib. 518); but there the trust was not executory; the language of the instrument was very different, and there was a limitation over. His Honour also relied on Hart v. Middh-hur.it (3 Atk. 371), which does not touch the case, for there the word "issue" only occurred; here "issue," with words of limitation superadded. Moreover, there was in the articles in that case an express provision for younger children, which left no doubt as to the intention, and the observations of Lord Hardwicke as to the form of the settlement were mere [76] dicta, the only real point for decision being, whether the only child took more than an estate for life. Dod v. Dod (1 Ambl. 274) was also relied on; but in that case there ware no superadded words of limitation, and there was a limitation over in default of issue, which went against giving estates in fee. The word " issue " pi'ima facie means the same as " heirs of the body," but it will readily b eonstrued otherwise, if there ia a context indicating a different intention ; Kavanagh v. Norland (Kay, 16). It was argued below that the use of the word " issue," in the latter part of the articles, explained its meaning in the former part, but this is unsound, for the word may have different meanings in different parts of the same will; Carter v. Bentall (2 Beav. 551). Here the Court will construe it as meaning children, it being against the spirit of marriage articles to make children take concurrently with their parents. The Vice-Chancellor has combined Alpass v. JVatldns, relating to a trust not executory, with Hart v. Middlehwst, which related to an executory trust, and thus got over the words " heirs and assigns," and has given the settlement an effect very different from the presumably intended effect of making a provision for all the children. The cases on a limitation to "issue," with superadded words, are collected and commented oa in Prior on Issue (page 53). Doe v. Oollis (4 T. R. 299) there cited supports our view ; " issue" was there construed to mean "children," and they took in fee. In p. 195, Mr. Prior discusses the question, which has...
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