APPENDIX.

Willcox v. Bellaers. (a)

ROLLS, JAN. 20, 1824.

GRAHAM, B.-No judgment can be given in consesequence of a difference of opinion.

Notwithstanding the respect I have for the authorities which have been cited, my opinion is clear that it is an estate for life only in the first taker.

Master Alexander.-I am of the same opinion; it is not a case for a specific performance.

Master Stratford was not present, but it was understood that he differed from the above opinions.

[It does not appear that the Court adverted to the circumstance of the destruction of the contingent remainders. But it seems that the plaintiff was entitled to have that point considered, if the Court thought it doubtful whether he took an estate tail. The Master of the Rolls offered a case for the opinion of a court of law, which of course the defendant's counsel declined.]

(a) I have been favoured with the above note by the solicitors for the plaintiff.

OPINIONS OF COUNSEL

ON THE

CONSTRUCTION OF THE WILL OF THOMAS WILLCOX.

"I think that Henry Thomas Willcox is tenant for life of the premises, with a power of appointment by will, to any of his children in fee, with a vested remainder (a) in himself in tail in default of appointment, (vide Goodright v. Pullen, 2 Ld. Raym. 1437., and Morris v. Le Gay, 2 Burr. 1102.,) and consequently that he may by suffering a recovery destroy such power of appointment, bar the intail and remainders, and convey a fee to a purchaser, subject to the dower of the testator's widow."

Opinion on behalf of Mr. Bellaers the purchaser. "The title is not marketable. It is very questionable whether, under the will of 1783, the children of the seller do not take by purchase; and some gentlemen would doubt whether the power of appointment could be destroyed. If the children took as purchasers, the title is of course bad."

Lincoln's Inn, March 27, 1819.

Opinion on behalf of another purchaser, who accepted the

"What Mr.

title.

-'s doubts may be as to the interpretation of Willcox's will I know not; the singularity of

(a) This is not accurate. The power does not suspend the union of the two limitations.

1

the devise had struck me. I had fully made up my opinion on the subject before I wrote on the abstract.

The only question is, as to what estate Mr. Henry Thomas Willcox took under the will of his father.

If the limitation had been "to my son for life, remainder to the heirs of his body," and had stopped there, he would, of course, have taken an estate tail.

But the question is, whether the superadded words "to their heirs and assigns for ever," control the first limitation in tail, giving the son an estate for life, with remainder to his children as purchasers. That this is not so controlled, and that Mr. Henry Thomas Willcox took an estate tail, is, I think, clearly proved by the case of Frank v. Stovin, 3 East 548., where the limitations were almost in terms the same as in the will of the late Mr. Willcox. They were these: "devise to A. for life, without impeachment of waste, and with power of jointuring; remainder to the issue male of A.'s body, and their heirs; and in default of such issue, to B. for life, in the same manner." The Court held, that A. took an estate tail, and that by a recovery, and the deed to lead the uses thereof, A. acquired an estate in fee simple.

The only points of difference between the two cases

1. That in the one cited there was a power of jointuring, and in this there was a power of appointment: but that is an immaterial difference, as they are both powers in gross, and as such would be both extinguished by a recovery. And,

2. That in that case the words are "issue male of A.'s body, and their heirs." And in this the words are "heirs. of the body, and their heirs and assigns for ever," which latter words, as they take in the whole line of descendants both male and female of the first taker, imply more strongly the intention of the testator, that all the issue of Henry

Thomas Willcox should take through him in a course of descent, and, consequently, that Henry Thomas Willcox should take an estate tail, than where the words are issue male, excluding the class of female descendants.

Understanding then this to be an estate tail in Henry Thomas Willcox, the subsequent limitation to the daughter of the testator cannot be construed to be an executory devise, which can only be limited to take effect after a fee.

I

On the whole, I am of opinion that any court of equity would enforce a specific performance of an agreement entered into by Mr. Willcox, for the sale of this estate. do not see any other questions arising on the abstract, supposing all the parties to the deed I have drawn join in the conveyance.

Lincoln's Inn, April 11, 1819.

Opinion on behalf of Mr. Willcox, the vendor.

I have considered this case; and I am of opinion that Henry Thomas Willcox took an estate tail under the above will, with a power of appointment among his children, and that the intail and remainders were barred, and the power of appointment destroyed by the recovery suffered by him, presuming such recovery to have been duly suf fered; and, consequently, that he can make a good title to a purchaser. I think it is impossible to contend that the words "heirs of the body" operated as words of purchase; it is clear that the superadded words of limitation in fee will not alone restrain their import: (Wright v. Pearson, Ambl. 358. Goodright v. Pullyn, 2 Ld. Raym. 1437., and see King v. Burchell, Ambl. 378.) but, admitting that the heirs were to take as purchasers, they must have taken estates in fee; and as such estates were contingent, and as all

limitations after a contingent limitation in fee must also be contingent, (Doe v. Holme, 3 Wils. 237. 241, Loddington v. Kime, 1 Ld. Raym. 203. Goodright v. Dunham, Dougl. 264. Doe v. Perryn, 3 T. R. 484. Webb v. Puckey, 5 T. R. 299. And see Smith v. Horlock, 7 Taunt. 129.,) the consequence would be that all these limitations were destroyed by the recovery, and that Henry Thomas Willcox became entitled as heir at law of the testator, for I presume that he was such heir: (a) but it should be observed that courts of equity do not countenance the destruction of contingent remainders, (Roake v. Kidd, 5 Ves. J. 647.) If, indeed, the heirs were to take in tail by purchase, then, though the limitation to them was destroyed, the limitations over were vested, and not affected by the recovery: but, in order to support this construction, it must be contended that the superadded words "their heirs" were reduced by the subsequent words "without issue," to mean "heirs of the body," so that we should then have a limitation to "the heirs of the body of Henry Thomas Willcox, and the heirs of their bodies;" and if the will stood thus, I think it would not be attempted to be denied that Henry Thomas Willcox took an estate tail, (Shelley's case, 1 Co. 93. Minshull v. Minshull, 1 Atk. 411, and see Poole v. Poole, 3 Bos. and P. 620.) for that construction must be attacked, if at all, on the ground that the superadded words were intended to designate a different description of heirs from that which would come within the scope of a limitation to the heirs of the body of Henry Thomas Willcox. With respect to the power of appointment, I think that, as a power in gross, it was capable of being released or extinguished by the donee, and that it was in fact completely put an end to

(a) He was not heir; but he took the vested fee under a residuary devise.