Thomas Foster against Thomas Hayes and John Pierson Senior
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1855 |
| Date | 01 January 1855 |
| Court | Court of the Queen's Bench |
English Reports Citation: 118 E.R. 679
COURTS OF QUEENS BENCH, AND THE COURT OF EXCHEQUER.CHAMBER
Affirmed in Exchequer Chamber, 4 El. & Bl. 717.
[27] thomas foster against thomas hayes and john pierson, senior. Friday, April 29th, 1853. A. by his will, made in 1788, devised Blackacre to trustees to the use of his grandson M. for life, remainder to the use of M.'s children as he might appoint, and, in default of appointment, " to the use of all the children, both sons and daughters, of the body of the said M. lawfully issuing, equally to be divided amongst them, share and share alike, and to take as tenants in common and not as joint-tenants, and their heirs for ever; and, for default of such issue, to the use of all the children of my brothers arid sister, equally to be divided amongst them, share and share alike, and to take as tenants in common and not as joint-tenants, and their heirs for ever." He then devised Greenacre to the use of his grandson W. for life, with limitations over expressed in the same terms. Then followed a proviso, " in case either of my said grandsons shall happen to die without issue of their bodies lawfully begotten, that my said trustees shall stand seised of the several hereditaments and estates hereinbefore devised for the benefit of such grandson so dying to, for and upon the like uses and trusts as they shall stand seised of the hereditaments and estates before devised for the benefit of such survivor." At the time the will was ma.de, the testator had two infant grandchildren M. and W., and several nephews. M. and W. both survived him. M. had one child E., a daughter, who died in his lifetime, an infant, before stat. 3 & 4 W. 4, c. 106, leaving defendant E.'s cousin and heir at law. W. died without ever having had issue. Then M. died. The defendant, who was not a child of a brother or sister of the testator, or heir of such child, claimed Blackacre, as heir at law of E. The nephews also claimed it. -Held,. thatE, on her birth took a vested remainder in fee in Blackacre, which on her death descended to defendant. [Affirmed in Exchequer Chamber, 4 El. & Bl. 717.] .Replevin. Avowry and cognizance: That one William Harding, being seised in fee of certain premises, and, amongst others, of the farm whore the distress was taken, made his will on the 8th January 1788. The will was then set out at length. By it the testator devised to his nephew Robert Kitchen, and his heirs, certain real estate (not including the farm on which the distress was taken), and devised certain other real estate, including the farm on which the distress was taken, to trustees, upon trust, during the time that testator's grandson Matthew Hayes should be under the age of twenty one years, to receive the profits and accumulate them, and, on his attaining the age of twenty one, upon trust for him for life; and after his decease to the use of his children, as he might appoint; aud, in default of appointment, " to the use of all the children, both sons and daughters, of the body of the said Matthew Hayes lawfully issuing, equally to be divided amongst [28] them, share and share alike, and to take as tenants in common aud not as joint-tenants, and their heirs for ever; and, for default of such issue, to the use of all the children, both sons and daughters, of my brothers aud sister, equally to be divided amongst them, share and 680 FOSTER V. HAYES ZEL.&BL. W share alike, and to take as tenants in common and not as joint-tenants, and their heirs for ever." He then devised other real estate to the same trustees, with similar limitations for the benefit of his grandson William Harding Hayes, and with a devise over in the same words. Then followed this proviso. " Provided always, and my will and mind expressly is, that, in case either of my said grandsons shall happen to die without issue of their bodies lawfully begotten, that my said trustees shall stand seised of the several hereditaments and estates hereinbefore devised for the benefit of such grandson so dying, to, for and upon the like uses and trusts as they shall stand seised of the hereditaments and estates before devised for the benefit of such survivor." These were averments that the testator died seised ; that Matthew Hayes survived him, attained twenty one in 1814, married, and had an only child, Elizabeth Harding Hayes, who died an infant, in her father's lifetime, before the passing of stat. 3 & 4 W. 4, c. 106, leaving Thomas Hayes, the avowanb, her cousin and heir at law: that Matthew Hayes demised the farm in question to the plaintiff, at a rent of 931. payable half yearly, and then died between two days of payment, and the current half year's rent afterwards became due; and that the avowant Thomas Hayes became, as heir of Elizabeth Harding Hayes, entitled to the reversion in fee in possession; and that the rent for the last half year was apportioned. He then avowed, and the other defendant [29] made cognizance, for a distress for the apportionment of the rent in the half year during which Matthew Hayes died. Demurrer. Joinder. Plea 3 to the avowry and cognizance: That Elizabeth Harding Hayes died an infant unmarried, of the age of two weeks. That William Harding Hayes the devisee, grandson of the testator, died after the testator and before Matthew Hayes, without ever having had issue. That, at the time of making his will, the testator had then living two brothers, Henry and Robert, and one sister, Isabel, who had then several children of whom some still survive. And that Thomas Hayes, the avowant, is not one of such children, nor the heir of one; and that the said children surviving, and the heirs and devisees of those dead, claim the rent from plaintiff. Demurrer. Joinder. The case was argued in this term (a). Cowling, for the plaintiff. The question is, whether, on the construction of William Hard ing'a will, Elizabeth Harding Hayes took, as soon as she was born, a vested estate in fee. If so, Thomas Hayes as her heir at law is entitled to the estate; if not, he has no title. The whole question therefore turns on the construction of the will. It appears that, at the time when the will was executed, the testator had two grandsons who were the principal objects of his bounty, and two brothers and a sister whose families were the secondary objects of his bounty. The devise, had it stopped short just before the proviso, would have been a devise of one estate to one grandson for life, with remainder to the use of the children of that [30] grandson and their heirs; and, in default of such issue, to the children of his brothers and sister: and a similar devise of another estate to the other grandson. If the effect of this was a contingent fee to the unborn children of the grandson, then, on the birth and death of an infant, the estate passed away from the children of the brothers and sister to a person not the object of the testator's bounty. He certainly cannot have intended that: and his real intention would be fulfilled if the grandson took an estate in tail. And this intention is made more clear by the proviso which gives the estate of each grandson, in case he shall die without issue, to the other. It has long been settled that, in wills executed before stat. 7 W. 4 & 1 Viet. c. 26, the words " die without issue" primal facie mean die after an indefinite failure of issue. The context may indeed shew in gome cases that the phrase is used in a different sense. Thus in Doe dem. Camberbach v. Perryn (3 T. R. 484) the devise was to the testator's niece for life, remainder to all and every her children by her husband James, "and their heirs for ever, to be equally divided between and among such children (if more than one) share and share alike; but if only one child, then to such only child and his or her heirs for ever; and for default of such issue," to his niece's husband James. It was held in that case that " default of such issue " did not mean after a failure of issue of the niece, but in case there are no such children. The person, however, in whose favour the devise over was there made, could not be an heir of his own children; so that there was no incongruity in a devise to him in default of their heirs; and this fact forms the distinction between that case and [31] Ives v. Legge (3 T. R. 488, (a) April 26th. Before Lord Campbell C.J., Wightman, Erie and Crompton Js. 2BL.SBl.32. FOSTER V. HAYES 681 note (a)), which is expressly recognised in Doe dem. Comberbach v. Perryn (3 T. R. 484). The decision in Ives v, Legge (3 T. R. 488, note (a)) was that, wherever after a devise to children and their heirs there comes a devise, introduced by the worda in default of issue or similar words, to a person who would himself be one of the heirs of the children, so that it would be impossible that the devise to him should ever take effect if it was only to be iu default of their heirs general, the words shall be construed to mean heirs of the body. There are many cases where words which would primS, facie give an estate in fee are cut down in thia manner by a subsequent limitation, so as only to give an estate tail; Doe dem. Bean v. Halley (8 T. R. 5), Brice v. Smith (Willes, 1), Lewis dem. Ormond v. Waters (6 East, 336), Doe dem. Jearrad v. Bannister (7 M. & W. 292). In the present ease, if the will had stopped at the end of the devise to the children of the testator's brothers, after the devise to his grandson's children and their heirs, it would be an argument that the words " in default of such issue" gave an estate tail to the grandsons; but the proviso shews the intention clearly. Rudall, contra. The grandsons took an estate for life, remainder to their children in fee; and, if there never were such children, then there is a devise over. The authorities are very numerous to shew that, after a devise to children and their heirs, the words in " default of such issue " mean if there are no such...
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