Target et Al' v Gaunt et Al'
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1718 |
| Date | 01 January 1718 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 459
LORD CHANCELLOR PARKER.
[432] Case 121.-target el aV versus gaunt et aV. [1718.] Lord Chancellor Parker. 1 Eq. Ca. Ab. 193, pi. 11; Gilb. Kep. 149 ; 10 Mod. 402. Termor devises the term to A. for life, remainder to such of his issue as he shall appoint, and if A. die without issue, remainder to B.; this is a good devise to B. One possessed of a term for .years devised it by his will to his son Henry (1) for his life, and no longer, and after his decease to such of the issue of the said Henry, as Henry by his will should appoint; and in case Henry should die without issue, then the testator devised the same to his brother Albinus for the residue of the term, and died. Henry died without issue living at his death ; whereupon The question was, whether the term should go to the executors of the first testator, or to the executors of Henry, or to Albinus 1 Object. The devise over of a.term upon a death without issue, is void, being too remote an expectancy, and tending to a perpetuity. Lord Parker. The expression of dying without issue, has two senses (vide ante, 199, Nichols v. Hooper; post, 564, Pinbury v. Elkin; and Forth v. Chapman, 666): 1st, A vulgar sense, and that is, dying without leaving issue at the time of his death. [433] 2dly, A legal sense, and that is, whenever there is a failure of issue. And if this will be taken hi a vulgar sense, viz. if Henry dies without leaving issue at the time of his death, then the devise over to Albinus is good; now this seems to be the meaning of the testator in the principal case ; for it must be intended such issue as he should, or at least might appoint the term to, which must be intended issue then living ò and this construction shall be the more favoured, in regard it supports the will, whereas the other destroys it. (This subject, as applied to terms for years, is more particularly considered in Atkinson v. Hutchinson, post, Vol. III. 258.) Therefore the Court held, that the devise over of the term to Albinus was good...
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