[Malcolm v. Taylor.-2 Rus. & Mylne, 416.] sion. Next consider what the testatrix is dealing with in this gift over. It is the stock; the plate also, I admit,—and that raises some doubt; but certainly not the plantation. Now the stock was not in any way the subject of the immediately preceding bequest, but it was the subject of the one before. Had this gift over stood immediately after the clause providing for a default of appointment to the stock, and postponing the vesting of it, and had it so stood, without the addition of "as aforesaid," there could have been no doubt whatever, that the words "without issue" must have been held to mean such issue as is referred to in the preceding clause, touching the appointment and vesting. This is plain from the case of Target v. Gaunt, 1 P. Wms. 432, and in a great degree also from Goodright v. Dunham, Doug. 264. In the former, a term being given to A. for life, with remainder to such of his issue as he should appoint, and if he died without issue, remainder to B., Lord Macclesfield held that issue in the gift over meant such issue as A. might appoint to under the preceding limitation, and that the executory bequest to B. was good. In Goodright v. Dunham, where the devise was to A. for life, and after his death to his children equally and their heirs, and in case he dies without issue, over, Lord Mansfield held "in case he dies without issue," to mean "in case he dies without children;" because, he said, the gift over was tacked to the preceding clause. The Then does the mere separation of the gift over from the provision respecting the stock, prevent this reference? Are not the identity of the subject matter, namely, the stock, and the words of reference, viz., "as aforesaid," sufficient, if not singly, yet taken together, to establish the connection between the gift over and the preceding provisions? cases, such as Salkeld v. Vernon, Eden, 64, Doe v. Lyde, 1 T. R. 593, Rex v. Marquis of Stafford, 7 East, 521, where issue has, in similar circumstances, been held to be a word of purchase, need not be referred to, or more than mentioned. In all of them the word issue was held to mean the children before referred to,-to lose the character given it by Lord Hale in King v. Melling, 1 Vent. 551, of being nomen collectivum of itself, and to assume that individuality which belongs to "children," a word that may be nomen collectivum, but only, as the same great authority has said, by being made so, and, as it were, against its natural sense. It is no doubt true, that to the construction here given it may be objected, that the plate is found to be covered by the words of the gift over, as well as the stock; and that the previous clause, to which one construction makes the gift over bear reference, comprehends the plantation as well as the stock. Of the former objection it may suffice to dispose when we come to the second question, which relates to the plate; and to the latter it seems a satisfactory answer, that although the plantation is dealt with in the former clause, yet so is the stock, the subject of the gift over, and that the stock is dealt with in a way wholly different from the plantation. Again, the will, those parts of it at least under consideration all plainly look to children throughout, and provide for them. The scheme of the disposition is, generally speaking, to give to Mrs. Watson Taylor's family the plantation, and to John Malcolm the money in the funds, after Maria Taylor and her children. No doubt, the manner in which this intention is to be made effectual [Malcolm v. Taylor.-2 Rus. & Mylne, 416.] in John Malcolm's favour, brings him in before the grandchildren of the first taker (Maria Taylor) in the event of her children dying under age. But that does less violence to the general intent than giving to Maria Taylor an absolute interest in the money, and leaving out John Malcolm altogether. The objection, too, applies to the case of sons only, and not daughters; for the interest of daughters vests on their marriage; and the event of a son dying under age, and leaving children, is rarely contemplated in such arrangements. This is shown by the fact, that the ordinary form of bequest, which is the one here used, does not provide for the vesting of an interest in sons upon their marriage. At all events, the violence apprehended is infinitely less when the possible exclusion is not that of the giver's own grandchildren, but merely of the grandchildren of a collateral, the first taker; and yet a construction exposed to this possibility is constantly adopted, even where the testator's own direct descendants may by possibility be the victims of it. Upon the whole, therefore, I am of opinion that the gift over of the stock to John Malcolm is good, and that Maria Taylor did not take an absolute interest in it. Secondly; Does the plate fall within the same rule and go over to John Malcolm, or did Maria Taylor take an absolute interest in it? It is first given with the plantation and the stock to Elizabeth and Maria and the survivor for life, and after the survivor's decease, to Maria's children, as she may appoint. Here the plate is dropped, and no provision with regard to it is made in the event of Maria Taylor failing to exercise her power of appointment. So that in this first portion of the will there is no dealing with the plate to which, in construing the subsequent gift over, the words, "without issue as aforesaid," can be referred back. If, then, the construction as to the stock be a sound one, which refers those words to such issue as had been mentioned when dealing with the same fund in the former clause, and not to the issue mentioned when dealing with the plantation, by parity of reason, all reference back must be excluded in construing the same words as to the plate; inasmuch as there is nothing before mentioned touching the plate, in connection with the children, or with any thing to which issue can refer. The plate then will be given over on a general failure of issue; and whether from the gift being too remote, or from the gift to her being what, in the case of realty, would be an estate tail-it is indifferent which-Maria Taylor takes absolutely, and consequently the interest in this part of the property now vests in her personal representatives. Thirdly; does John Malcolm take an absolute interest, or only for his life, in the part which goes over to him, that is, in the stock? That "son" may be a word of limitation is not denied; but there must be some plain reason for making it so. None of the cases from Byfield's case downwards, certainly not Robinson v. Robinson, came at all near the violence which it would be doing to the obvious meaning of this clause to construe "eldest son" as nomen collectivum. As to the superadded words "for ever," they clearly are only used to contradistinguish the interest which the eldest son of John Malcolm was to take, from that which John Malcolm himself was to take; the one for life, the other absolutely. But the gift over is said to raise a different construction:-" In case the said John Malcolm shall die under age and without issue, I then [Malcolm v. Taylor.-2 Rus. & Mylne, 416.] give and bequeath the said residue of my said money in the funds, &c. unto the said Mary Ann Martha Malcolm." Supposing then that reading the gift over in the conjunctive (" and," instead of "or,") would have the effect of giving an estate tail to John Malcolm, if the property were real estate-a point which is disputed; and that, the property being personal, it would give the absolute interest to John Malcolm, we have here only a choice of difficulties, as is but too frequent in such cases. If the clause is read conjunctively, then, by the supposition, John Malcolm would take an absolute interest to the exclusion of his son, to whom an absolute interest had just before been limited upon the determination of the life interest which was alone given expressly to John Malcolm. If, on the other hand, it is read in the disjunctive, though the son's interest may be defeated by the father dying under age, and yet leaving issue, viz., that son, in which case it would go over; yet that is only a possibility, whereas the other is a certainty; and it is, moreover, a possibility not contemplated in the ordinary case of such limitations, as I observed upon the first point, and not contemplated by this testatrix in the former part of the will, where she is disposing of this very same fund, or, at least, of what constitutes the bulk of it, the stock. It is fit that, in making our election between these difficulties, we keep in view the plain intention expressed of giving to John Malcolm a life interest, and to the eldest son, as a purchaser, an absolute interest expectant upon the determination of the former; and though we are not at liberty to reject the words which follow, for any apparent inconsistency with this intention, yet if there are two ways of reading them, one of which only frustrates the intention by a remote possibility, we should choose that rather than one calculated to operate a certainty of exclusion, more especially when such a possibility appears not to have been in the contemplation of the maker of the instrument. It must, however, be admitted that the reading of "or" instead of "and" is rarely to be found sanctioned by decision. Maberly v. Strode, 3 Ves. 450, and one or two other cases of the same kind may be reckoned for nothing, because the words would have been hardly sensible if read in any other way. That was a limitation to A. for life, and after his death to his children, but in case he died unmarried and without issue, over: if he died unmarried, he must, in contemplation of law, have died without issue. But in Brownsword v. Edwards, 2 Ves. sen. 243, Lord Hardwicke read "and" as "or," to effectuate the intention appearing on the will. The devise there was to trustees to receive the rents till A. should attain twenty-one or have issue, and then to A. and the heirs of his body, but if he died before twenty-one and without issue, then in trust for B. his sister. A. died after twenty-one and without issue; and Lord Hardwicke supported the gift over to the sister by reading and as or. It has been said, and perhaps truly, that Lord Hardwicke would have felt much more repugnance to giving the words this construction, had any other event happened. And the Court of King's Bench has certainly gone against, though they cannot be said to have overruled his decision in Doe v. Jessep, 12 East, 288. The reason given by Lord Ellenborough for questioning the case of Brownsword v. Edwards, that in a will words are to be taken in their natural sense, is one which all must heartily wish could always be applied and taken as a general canon. But unfortunately it is too late; rules of technical construction are no longer to be rejected even in the case of [Malcolm v. Taylor.-2 Rus. & Mylne, 416.] wills; and the utmost that can now be done is to follow the natural sense of the words used in such instruments wherever those rules will permit us. It may be, I trust it certainly is, going much too far to say, with one of the learned counsel, that no conveyancer can give a safe opinion upon any one case on the law of real property which comes before him in the twenty-four hours. Nevertheless it cannot be denied that much uncertainty has been introduced into this branch of the law. This is not, however, to be imputed solely to the adoption of technical rules. It has been in part owing to not keeping by the technical rules once introduced. The struggles in favour of intention, sometimes made on the ground of natural meaning, sometimes on the ground of other rules as technical as those striven against, have been a fruitful source of this uncertainty, and in more instances than one a recurrence to the original technical principle has been seen to sweep away a multitude of intermediate decisions, while the new decisions are found to leave unsettled almost as much as they have fixed. Against the construction now given to this part of the will it is needless to say that objections may be raised from cases which may be put, in which a result would take place most unlike any the testatrix could have thought of. But that is not peculiar to this case; it may be said to happen, and almost of necessity, in every instance where a gift over is frustrated by being limited on a general failure of issue. Upon the whole I do not differ with His Honour in his construction of the gift to John Malcolm, holding that he takes a life interest only in the testatrix's money in the funds. Fourthly; there remains only the question as to Mary Ann Martha Malcolm's lapsed legacy of 2000l.; and I cannot read the will and doubt that it belongs to the particular residue. That residue is given thus,"all the residue and remainder of my money in the funds after payment of the annuities and legacies herein before bequeathed," of which the legacy that has lapsed is one. The result is that, upon all the four points, the judgment of the Master of the Rolls must be affirmed. In re Robins. 2 Rus. & Mylne, 449. In a case where a lunatic had two estates situate at a distance from each other, and of considerable value, the court under the circumstances appointed a separate committee for each. March 4, 8, 1831. THIS was an application for the appointment of two committees of the lunatic's estate, not jointly in the usual way, but that one committee might be appointed of the Warwickshire, and another of the London property. The estates were of great value; that in Warwickshire, consisting partly of coal mines which required considerable superintendence; and the other chiefly of houses and other leasehold property in London and Middlesex, with a rental amounting to more than 30007. a-year. [In re Robins.-2 Rus. & Mylne, 449.] Mr. Tinney, in support of the application, observed that nothing was more common in practice than for two committees, who were appointed jointly, to divide the management, and each take a portion of the property under his peculiar charge. From family circumstances, however, that could not conveniently be done here. But it was of the utmost importance, that there should be persons resident on the spot to manage the respective properties, which were of a nature to call for all the vigilance and activity of separate committees. The proposed arrangement, besides, was one which, while it would be conducive to the interest of the lunatic's estate, would be more satisfactory than any other to all the parties having expectant interests. The heir at law and next of kin made no objection. The LORD CHANCELLOR at first said that he had great doubts, as the case seemed to be without precedent. But he afterwards stated that he had been furnished with an authority by Master Dowdeswell, which was on all fours with the present case: he therefore directed the order accordingly, as it would be much more convenient for the estate and for all parties. Smith v. Nethersole. 2 Rus. & Mylne, 450. A writ of ne exeat regno will not be granted to a plaintiff residing in a foreign country, February 9, 10, 29, 1832. THE Solicitor-General (Sir William Horne), and Mr. Burge, for the defendant, moved that a writ of ne exeat regno, which had been granted in this case, might be dissolved. The bill was filed in September 1831, for an account of the partnership dealings and transactions between the plaintiff and defendant, as vendue-masters in the Island of Jamaica. One of the grounds taken in support of the motion was, that though the plaintiff, when he filed the bill, was in this country, having made the necessary affidavit at Sittingbourne in Kent, yet that his coming to England was only for that special purpose, and that his usual place of residence was in France. Hyde v. Whitfield, 19 Ves. 342, was referred to. Sir E. Sugden and Mr. O. Anderdon, contrà, cited Grant v. Grant, 3 Rus. 598. February 29.-The LORD CHANCELLOR, on the ground that the plaintiff resided abroad, and that his visit to this country was colourable and temporary only, discharged the writ.* * In Douglas v. Terry, 4th Nov. 1835, where the plaintiff resided in Scotland, the Vice-Chancellor upon that single ground discharged the ne exeat, following the authority of Smith v. Nethersole; and in a previous case of Walker v. Christian, 3d March, 1835, also before the Vice-Chancellor, the same, among other objections, was successfully taken. Ex relatione Mr. Wakefield. |