Wilson v Eden
| Jurisdiction | England & Wales |
| Judgment Date | 13 July 1852 |
| Date | 13 July 1852 |
| Court | High Court of Chancery |
English Reports Citation: 50 E.R. 1134
ROLLS COURT
S. C. 12 Beav. 454; 50 E. R. 1134 (with note); 5 Ex. 752; 14 Beav. 317; 18 Q. B. 474; 16 Beav. 153.
[464] wilson v. eden. March 6, 1850. [S. C. 12 Beav. 454; 50 E. R. 1134 (with note); 5 Ex. 752 ; 14 Beav. 317; 18 Q. B. 474; 16 Beav. 153.] A testator provided that if "his daughter should have no issue male of her body living at her death, or no such issue male as should be entitled, by the true meaning of that his will, to his real estates thereby limited, then and in either of those cases he devised the estates" to the daughters of his daughter living at her death. Held, by the Master of the Rolls and Court of Exchequer, contrary to the opinion of the Court of Q. B., that the words "such issue male" were to be read "issue male of her body " simply, and not "issue male of her body living at her death," and that upon any failure of issue male of the daughter, her daughters took the estate. Where the words of a will are capable of a construction which will give effect to every word, it is not within the competency of the Court to alter their collocation. The Court on a former occasion (11 Beavan, 289), not feeling satisfied with the certificate of the Court of Exchequer (1 Exch. Rep. 772), directed a second case for the opinion of the Court of Queen's Bench. The will of Morton Davison referred to in the will of the testator Peter Johnson, was now made part of the case. The effect was as follows :- Morton Davison, by his will dated in 1769, after giving a life-estate to Sir John Eden (the husband of Dorothea, the daughter of the testator Peter Johnson), proceeded thus:-" And from and after his decease, then, in case my nephew Sir John Eden shall have more sons than one of his body lawfully begotten, then unto and to the use of the second son of my said nephew Sir John Eden lawfully to be begotten, and of the heirs male of the body of such second son lawfully issuing; and in default of such issue, to the use of the third, fourth, and all and every other the son and sons of the body of my said nephew Sir John Eden," except his eldest son, successively, and the several and the respective heirs male of their bodies. Then followed a long series of limitations, concluding with an ultimate devise to his own right heirs for ever. There then followed this proviso: that in case the title of Baronet, then vested in Sir John Eden, should descend to the second, third, or any other younger son of Sir John [456] Eden, or to any other person to whom his estates were by his will limited, his estate and interest therein given should from thenceforth cease, and the person next entitled might thereupon enter. The will of Peter Johnson is stated in a former volume. (11 Beavan, 289.) It is only necessary to repeat the proviso, upon which the question principally depended, which was as follows:-" Provided always, that if it shall happen, that my said HBEAV.4M. WILSON V. EDEN 1135 daughter shall have no issue male of her body living at her death, or no such issue male as shall be entitled, by the true meaning of this my will, to my real estates hereby limited and settled as aforesaid, then and in either of those cases, I devise all my said real estatea (subject respectively as aforesaid) to all the daughters, if more than one, of the body of my said daughter who shall be living at her death, as tenants in common, and their heirs respectively, with cross-remainders amongst them in case of any one or more of them happening to die under the age of twenty-one years and without issue. And if there should be but one such daughter living at my said daughter's decease, and no issue of any other such daughter then in being, then to such only surviving daughter and her heirs. Provided always, that if any such daughter or daughters of my said daughter shall happen to die in her or their said mother's lifetime, leaving issue, then my will is, that such issue of each such daughter so dying, and the heirs of such issue respectively, shall have and take the estates, or share or shares of estates, as the parent or parents of such issue respectively would have been entitled to, if she or they had been living at the decease of my said daughter. And in case my daughter shall have no issue of her body living at [456] her death, then I devise all such my real estates, from and after the determination of the particular estates hereinbefore thereof limited as aforesaid, to such person or persons " as his daughter should appoint; and subject thereto to his own right heirs. The daughter died in the lifetime of her father, leaving two sons, Robert and Morton, and several daughters. Neither of the sons had issue, and on the death of the survivor in 1844 his sisters claimed the estate under the above proviso. In opposition to their claim, it was argued, that the gift to them was only in the event of there being no issue male of Lady Eden, entitled under Peter Johnson's will, living at her death, and that this event had not happened. The Court of Exchequer had arrived at that conclusion. It will be convenient to recapitulate the different dates. 1769. Will of Morton Davison. 1774. His death. 1779. Will of Peter Johnson. 1792. Death of Lady Eden, leaving two sons and several daughters. 1796. Death of Peter Johnson. 1810. Death of his widow, the tenant for life. 1841. Death of Morton, s.p. 184t. Death of Robert, s.p. The case being sent to the Court of Queen's Bench was argued before them in November 1849 (19 L. J. (Q. B.) 104 [5 Ex. 752]), and they certified that the eveut had happened upon which the gift to the daughters of Lady Eden arose. The cause now came on upon the certificate. [457] Mr. Turner, Mr. Humphry, and Mr. Elmsley rested on the judgment of the Court of Queen's Bench. Mr. Walpole, Mr. Malins, and Mr. Dumergue, contra, relied principally on the reasoning of the Court of Exchequer on the former occasion. Mr. Turner, in reply. the master of the rolls [Lord Langdale]. Quite independent of the two opposite opinions expressed by the Courts of Queen's Bench and Exchequer, I should have considered this as a case of very great doubt and difficulty; and I shall, therefore, abstain from saying anything which would appear like confidence hi the view that I take of it. It is a great satisfaction to me that the parties have resolved to take it to the House of Lords, where alone a case of such great doubt is capable of a final decision. There are two wills to be considered. It is very necessary that the first will should be known, in order that the position of the second testator, at the time he made his will, may be clearly understood. It seems that Morton Davison, the first testator, by his will gave a life-estate to Sir John Eclen, his nephew, and from and after his decease, in case his nephew Sir John Eden should have more sons than one son of his body, then to the use of the second son, and afterwards to the third and other sons. 1136 GRAHAM V. THE BIRKENHEAD, LANCASHIRE AND 12 BEAT. 8. This being in the mind of Peter Johnson when he made his will, he devised his estate to his wife for her life, and after her death, to his daughter for her life, then to his grandson Robert Eden (the eldest son of his [458] daughter), and the first and other sons of his body, and then to his grandson Morton John Eden, the second son, with remainder to his male issue, and then to the third and every other son ; and then comes this proviso:-That if any of these persons mentioned in this limitation should become entitled to the estate of Morton Davison, then the devise given by his will waa to cease to be operative; that is, that the person who became entitled to the estate of Morton Davison should not under Peter Johnson's will become entitled to his estate. Then follows this proviso, " That if it shall happen that my said daughter shall have no issue male of her body living at her death"-that is one event-"or no such isaue male as shall be entitled by the true meaning of this my will to my real estates hereby limited and settled as aforesaid,"-then there is a gift over to the daughters of Lady Eden. That is upon the happening of either of the two events, "then and in either of those two cases." Now were there two cases, or was there only one caae 1 The Court of Exchequer seem to have come to the opinion that there was but one, and that the one was involved in the other. The Court of Queen's Bench have come to the conclusion that there were two distinct cases contemplated by the testator. It does not appear to me, that, in this ease, it is at all necessary, for the purpose of construing these clauses, to alter the collocation of any words contained in the proviso. The words, as they stand, seem to me to be sufficiently capable of receiving in a Court of Justice a construction, which will give effect, in the events contemplated, to every word contained in this will; and if this be so, I think that it ia neither necessary nor within the competency of the Court to alter the coI-[459]-location of the words, or to construe the words in their present collocation as if they were altered. I cannot accede to the argument used to-day, that the word "such" must refer to the antecedent words " issue male living at the death," because the words "no such issue male" are followed immediately by the words "as shall be entitled." If it means " no such issue male as shall be entitled," then the whole of this proviso is, I think, capable of a distinct construction, and is sufficient to ground the judgment of the Court upon. One construction is, "if there should be no issue male living at the death:" the other construction is, " if there should be no issuo male entitled under this my will." The testator refers manifestly and clearly to the former clause in his will, in which he puts an end to the estate given by his own will, on the acquisition of the estate to come under the will of Morton Davison. I own, it seems to...
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