1820. JESSON AND "them, or any part thereof, to enter and distrain; "and such distress and distresses to sell and dispose of to satisfy and discharge all such arrear- OTHERS v. ages, with the costs and charges of taking, keep"ing, and disposing of the same." WRIGHT AND house dies The special verdict then states, that the said Ezekiel PerseEzekiel Persehouse died on the same day, seized seized on the of the said premises, without altering his will; same day. and that, upon the death of the said Ezekiel Persehouse, Thomas Stokes, Ann Wright, and Eliza- Tho. Stokes, Ann Wright, beth Persehouse, were his co-heirs, of whom Ann and Elizabeth Wright and Elizabeth dying, respectively, Daniel Persehouse, Wright and Elizabeth Mosley succeeded, as heirs, Ann Wright which said Thomas Stokes, Daniel Wright, and Persehouse Elizabeth Mosley, are three of the lessors of the dying, Daniel Wright and Elizabeth Mosley suc Plaintiff. his co-heirs. and Elizabeth Said William marries. The special verdict further states, that imme- ceeded as diately after the death of the said Ezekiel Perse- heirs. house, the said William Wright named in his will, Wright enentered in the said premises, and became seized tered. of such estates as legally passed to him under the will of the said Ezekiel Persehouse; and that, afterwards, on the 13th December, 1774, he mar- 13th Decemried one Mary Jones, by whom he had issue, Ed- ber, 1774, ward Wright, Elizabeth Wright, Lucy Wright, And has issue, Ezekiel Wright, John Wright, Thomas Wright, Eliz. Wright, George Wright, Isaac Wright, Mary Wright, and Lucy Wright, William Wright, the younger, born in the above John Wright, order, of whom Elizabeth, afterwards, on the 23d Geo. Wright, February, 1798, died without issue; and Lucy, Isaac Wright, Ezekiel, John, Thomas, George, Isaac, Mary, and William and William, the younger, are the other lessors of Wright, the the Plaintiff. Edw. Wright, Ezek. Wright, Tho. Wright. younger. The special verdict further states, that after- Eliz. Wright. 1820. JESSON AND OTHERS V. WRIGHT AND OTHERS. January,1800. tween William Wright, and Mary, his wife, and Edward Wright, wards, by certain indentures of lease and release, executed, respectively, on the 16th and 17th January, 1800, the said premises were conveyed by the said William Wright, and Mary, his wife, 16th and 17th and the said Edward Wright, their eldest son, to Indentures be- Robert Long, as tenants, to the precipe, to the intent that a common recovery might be suffered, for the purpose of barring and extinguishing all estates tail, and all remainders and reversions, of and in the said premises; and, that a recovery accordingly was afterwards suffered as of the Hilary Term following, wherein the said William Hilary Term Wright, and Mary, his wife, and Edward Wright, following. Re- were vouched to warranty, and entered into the accordingly. Warranty, and defended their right in the usual liam Wright, way; whereupon a writ of seizin afterwards issued and Mary, his and was executed. their eldest common re covery. covery suffered Wherein Wil wife, and Ed ward Wright, Plaintiff. The special verdict then states the entries of were vouchees the several and respective lessors of the Plaintiff, Entry of the lessors of the on the premises, and their seizin, according to law; and the several demises to John Doe, the Ejectment and Plaintiff in Ejectment, who entered and was possessed, until the Plaintiffs in Error entered on the premises and ejected him thereout. ouster. Easter Term, 1816. Special verdict ar gued. This special verdict was argued in Court in Easter Term, 1816, the Plaintiff below arguing that William Wright, the devisee, took an estate for life only, with remainders to his children for life, respectively, as tenants in common, while the Defendants below contended that the said William Wright took an estate tail. The Court Judgment for gave judgment for the Plaintiff below.* Plaintiff be low. * See the arguments and judgment, 5 Mau. and Sel. 95. 1820. JESSON AND OTHERS. and errors as Against this judgment a writ of error was brought. The principal error assigned was, that the Court below, by their judgment, had decided, OTHERS v. that "William Wright took only a life-estate un- WRIGHT AND "der the will of, &c., with remainder to his chil- Writ of error "dren for life; and that the suffered by signed. recovery "William Wright, Mary, his wife, and Edward Wright, was a forfeiture of their estate. Where"as the Plaintiffs in Error contended, that the "testator intended to embrace all the issue of "William Wright, which intention could only be " effected by giving William Wright an estate tail, "for which purpose the words of the will are fully "sufficient." For the Plaintiffs in Error-Mr. Jervis and Mr. Sugden. Plaintiff in and 14th of It was the intention of the testator to include Argument for all William's issue, and sufficient appears on the Error. face of the will to enable a court of law to effec- 7th, 9th, 12th, tuate his intention. The decision in the Court June. below attributes this meaning to the testator,— That if William had only one child born who survived him, such child should take the whole estate for life; but if he had twelve (for example), and eleven died in his lifetime, the surviving child should have only a twelfth of the estate for his life. Is this a probable intention?-Again, if he had twelve children, and they all died in his lifetime leaving issue, according to this decision none of the issue could take? If their parents, indeed, had lived, they might have been supported out of the estate, but if their parents chanced to die in William's lifetime, they could derive no benefit from 1820. the estate. William was an illegitimate child, and yet the testator thought fit to provide for him and all his unborn children. If we consider the probable WRIGHT AND duration of their lives, it is not likely that the tes JESSON AND OTHERS. tator intended to stop there, with all the risks attending such a limited bounty, and then to give the estate to his heir at law. What is the value of such a gift? To the devisees it is highly important, that the estate should not go over until a total failure of all their issue, but to the heir the value of a reversion in fee after a life estate to a young person with remainders for life to all his children is trifling. Suppose that twelve children had survived William, is it a probable intention, that upon the death of each a share should fall to the heir, who would thus perhaps be a long series of years acquiring all the shares in the property. The testator has given the estate to the heirs "of the body of William lawfully issuing." Those words clearly include all the posterity of William. But it is said that he has translated his words to mean children. There is no doubt but that he intended the children to take. But the translation is too narrow. It makes the testator say that William's children shall take only for life, and that none of their children shall take after them. What warrant is there for this in the will? Can it be argued, that because under the latter words in the will, had they stood alone, William's children would merely have taken estates for life, therefore, they shall in this case take only that quantity of interest, although the testator has expressly given the property to 1820. JESSON AND WRIGHT AND the heirs of William's body, which would include all his possible heirs? The testator intended William to take for life, and he intended all his issue OTHERS v. to take. But he intended his children to take as OTHERS. purchasers; and it is manifest that he considered, (although erroneously in point of law,) that his intention to include all William's possible issue would be effectuated if the children did take as purchasers. The argument assumes this shape, that because he intended the children to take as purchasers, and has not repeated words of inheritance, they can only take for life as tenants in common. It seems impossible to contend, that William under this power might not have appointed an estate of inheritance to a grandson, or more remote issue, born in his lifetime, and this of itself decides the case. This, it is argued, the rule of perpetuity forbids. It may be admitted, that he could not appoint to a child, with remainder to the issue of that child, to take as a purchaser ; but where, as in this case, the power is to appoint to heirs of the body a class of unborn persons as * The power is to appoint to heirs of the body of William in such share and proportions as William shall appoint, not in such manner and form, (as well as in such shares and proportions,) according to the power in the King v. the Marquis of Stafford, 7 East, 521; nor for such estates according to the power of devise given in Leonard Lovie's case: nor is it a power to dispose of the estate, as the donee should think fit, as in Liefe v. Saltingtone. It may be said, that an appointment to a living grandson of William, and the heirs of the body of the grandson, would be an appointment to the heirs of the body of William. In this sense of the argument, " estate of inheritance” means estate tail. On this point see farther, p. 23, and note. |