1838. FRANKS ย. PRICE. But he argued 2dly (and principally) that if the whole accrued to him, still Napthali took only an estate for life. If he should die before Moses, leaving issue male, his moiety was to go to his first and other sons in tail. In the converse case, of Napthali dying after Moses leaving issue male, the moiety of Moses was in like manmer to go to the first and other sons of Napthali, in tail in remainder upon their father, who would have been, as to that moiety, tenant for life only. And the same plan of limitation, though not actually expressed, must have been intended by the testator with respect to Napthali's original moiety also (in the same event of his dying after Moses and leaving issue); for on the opposite supposition, viz., that Napthali took an estate tail in his original moiety, it would be in his power to defeat his issue by a recovery as to that moiety; while as to the moiety accruing from their uncle Moses, they would take an estate which Napthali could not defeat, viz., an estate tail in remainder as purchasers. Such a distinction was unmeaning, and could not have been intended by the testator. Though his design was imperfectly expressed, it is clear upon the whole that he intended that in every case that might arise, as well as in those actually provided for, each of the two brothers should have an estate for life in his moiety, remainder to his issue in tail, with cross-remainders over for life and in tail; and if the intention sufficiently appeared, the Court would imply the remainders not actually expressed. Daintry v. Daintry (a), Harman v. Dickinson. (b) But supposing any difficulty to exist as to inserting remainders by implication, it would be removed in the present case by the terms of the devise over, in case M. and N. should die without leaving any issue male, or such issue male should die without leaving any issue male. (b) 1 Bro. C. C. 91. 2 Madd. 449. (a) 6 T. R. 307. The words issue male, as here first used, meant sons, or the objects in whose favour the preceding remainders had been limited, and the whole clause taken together amounted to a declaration that the sons were, in every case that might arise, to take, that is, to take estates tail in remainder as purchasers, as in certain cases it had been before expressly declared that they should. In support of this construction of the devise over, Stephen particularly relied on Doe d. Barnard v. Reason (a), and Bamfield v. Popham (b): he cited also Lethieullier v. Tracy (c), Doe d. King v. Frost (d), Doe d. Barnfield v. Wetton (e), Pells v. Brown (g) Goodright v. Dunham (h), Ginger v. White (i), Blackborn v. Edgley (k), Morse v. Marquis of Ormonde (1), and the six rules laid down in 2 Powell on Devises, 551. (3d edit.). Wilde for the Defendants, argued that the last clause in the will, "In case M. Hart and N. Hart should both die without leaving any issue male, or such issue male should die without leaving any issue male," meant an indefinite failure of issue: that Napthali, therefore, under the general rule applied to limitations upon an indefinite failure of issue, took an estate tail in the premises; and that the testator's general intention could not be effected by any other disposition. If the common rule of law would effect his intention, there was no reason for interpolating a remainder: and the possibility of the tenant in tail's suffering a recovery, would not affect the construction of the instrument. Earl of Scarborough v. Doe d. Savile. (m) The general rule, as laid down in The (a) Cited 3 Wils. 244. (h) Doug, 264. 1837. FRANKS V. PRICE 1838. FRANKS บ. PRICE. Attorney-General v. Sutton (a), Langley v. Baldwin (b), Allanson v. Clitherow (c), and Doe dem. Bean v. Halley (d), was, that in case of a prior devise to a certain number of sons only in tail male, with a limitation over in case of default of issue or issue male of the parent, an estate tail would be implied in the parent to carry it to the other sons; and there was nothing in the expressions of the present will to require a departure from that rule: no intention which an estate tail in Napthali would defeat. In the cases relied on for the Plaintiff the intention expressed in the will was incompatible with the application of the general rule. As to the objection that Napthali's estate for life in one moiety was contingent, the rule was, that an estate in remainder limited in terms of contingency on the happening of certain events, being precisely those on which the preceding estates have determined, should be construed to be not a contingent gift conditioned to take effect on those events, but a devise immediately vested, the possession of which would be necessarily dependent on the events in question. Webb v. Hearing (e), Doe d. Planner v. Scudamore. (g) Stephen, in reply, said that no interpolation was necessary, for the terms of the devise over were sufficient for his purpose; that as it was proposed on the other side to raise out of those terms an estate tail by implication, he was equally entitled to use them the same way. The only difference was that he implied an estate tail in the sons as purchasers (in those cases in which an estate tail had not before been expressly given them), while on the other side it was considered as an estate tail in the parent. That the question was, which of these two was the better construction, and not whether the construction on the other side would effect every object of the testator, for Plaintiff's construction was, in that respect equally effectual. It was indeed much more so: for it precluded Napthali from defeating those objects (as he otherwise might) by a recovery. As to the cases cited on the other side, where an ulterior estate tail was given to the parent, estates tail having been previously limited to sons, they were all cases in which some son must otherwise have been excluded altogether; but on the construction Plaintiff contended for in the present case, no son could be excluded, and therefore it was not necessary to imply an estate tail in the parent. The following certificate was afterwards sent. We are of opinion that upon the death of Moses Hart, without issue, Napthali Hart became and was seized under and by virtue of the testator's will of a vested estate in tail male in remainder (expectant on the determination of the estates limited to Judith Levy, Rachael Adolphus, and her children, and the testator's three sisters), in all the messuages, lands, and hereditaments at Topsfield. It having been intimated to us by the counsel on both sides, that in the event of our opinion on the first question being such as is above stated, they do not desire to have our opinion on the matters referred to in the second and third questions, we forbear to say any thing in answer to them. N. C. TINDAL. J. A. PARK. J. VAUGHAN. T. COLTMAN. 1838. FRANKS v. PRICE. 1838. Nov. 5. An agreement AT for the purchase of the herbage of a close for five months, at the price of 451., 107. to be paid down, and a joint promissory note to be given for the residue, payable within the five months, the lessee to yield up pos session at the end of that time, and if he failed to give a satis factory promissory note, CATTLE v. GAMBLE. Ta sale by auction on the 27th of April 1835, the Defendant bought at the price of 45l., a lot, described in the catalogue as "Herbage of Upper Townshend's Close, and Lower Townshend's Close," under the following conditions of sale: — "1. The highest bidder for each lot shall be the party entitled to possession for the time stipulated, under the following conditions, free from the parish rates and tithes. 2. The highest bidder for each lot shall pay down, immediately, on such highest bidding being declared, into the hands of the auctioneer, a deposit of 10 per cent. on the amount of his bidding, and give a satisfactory joint note for the residue thereof, payable on the 21st of August next. 3. The lessees shall be entitled to possession of their respective lots until the 29th of September next. 4. Each party becoming lessee as aforesaid, shall on the 29th of September next, peaceably and quietly yield the vendor to up the possession of the respective lots to the owner of the same respectively; and in case of any delay in so doing, the party or parties making default shall be deemed a wilful trespasser or trespassers, and forcible possession shall and may be taken of each and every lot so withheld, and the cattle and stock thereon shall and may be impounded accordingly. be at liberty to relet the premises, Held, suf ficiently stamped with a 17. stamp. 5. If any purchaser shall fail to give such satisfactory joint note as aforesaid, his deposit money shall be absolutely forfeited, and the vendors in that case, or any other case of default, shall be at liberty to relet the |