1818.

DEVISE.

April 25, 28, any issue of the testator's sister Elizabeth Butler, July 8, 1817; June 3, 5, living at the death of the surviving annuitant; yet it is impossible for us to discover, with any certainty, to whom or in what proportions the interests are given. And as we cannot make a disposition for the testator where he has made none for himself, that we can, with any certainty, discover, the whole, as undisposed of, must go to the heir at law.

Judgment.

June 5, 1818.

Lord Eldon (C.) Your Lordships have now the benefit of the advice of the Judges in this case, who having regard to the whole of the will and the facts found in the special verdict, have certified their unanimous opinion that, instead of two-sixths, the lessee of Mrs. Mathews was entitled to nothing; and that there was an intestacy as to the whole of the property from the time of the death of the surviving annuitant. I have seldom been more disturbed about any case than about this: for I have not the least doubt, if your Lordships should concur in the opinion of the judges, but that the actual intent of the testator must be disappointed. But the question is, whether there is here that intelligible expression of intention, which shows how the property is disposed of to the exclusion of the heir, who never claims by force of the intent, but by the rule of law.

The testator directs the rents and profits of his estates to be divided into twenty shares, and to be paid to certain persons for life. And then he says,

provided always, and it is my true intent, that "in case any of the said several persons, &c. shall happen to die either before me, or in the life

DEVISE.

"time of my said nephew Lemuel Shuldham ;" June 5, 1818. forgetting to provide for the event of their dying after him, or after Lemuel Shuldham, " then I will, "and direct that the said part and share, parts and "shares of the said several person or persons so dying shall go, and be had, received, and taken "by my said nephew Lemuel Shuldham, or his assigns for his natural life. Provided also, and "it is my farther intent and meaning, that when "and as any of the said several persons hereinbefore named, who shall survive my said nephew "Lemuel Shuldham, shall happen to die, then I "will, and direct that the part, share, and pro

66

portion of the said clear residue of the rents and "profits of my said real estate hereinbefore di"rected to be paid to him or them so dying, shall

66

go, and belong to, and be divided between the "survivor or survivors of the said several persons, "share and share alike, and in equal parts, shares, "and proportions," not stating what was to be done with the shares of those dying before Lemuel Shuldham, in the event of his death, and his not being the surviving annuitant: "and from and "after the death of the survivor of them," naming the annuitants, "then I give and devise all and singular the said manor, messuages, &c. unto all "and every the children of my said late sister, "Elizabeth Curtis, deceased, by her three several husbands, Brien Kelly, Samuel Shuldham, and σε Buckley Butler, that shall be then living," which last words must mean living at the death of the surviving annuitant, "and their heirs and assigns "for ever." If the will had stopped there, the

66

DEVISE.

June 5, 1818. children then living must have taken as joint tenants; but then follows "equally to be divided "between them as tenants in common, and not as joint tenants." If the will had stopped there, Mrs. Mathews might take the whole; as it is clear that where there is a devise to a class, equally to be divided between them as tenants in common, if there should not be a sufficient number to call for a division, one would take the whole; the operation and effect in law being the same as if the testator had said, "and if only one, then to that one:" But the will does not stop there, and we cannot, by implication, conclude that he meant that one only should take when he himself happens to contemplate, and in terms to provide for, that event: and the misfortune is that the manner in which he here does so is this, "and if there should "be but one such child, and no issue of any of "the other children then living, then, and in that "case, I give and devise, &c. unto such surviving "child, his or her heirs and assigns for ever." Now the event which happened was that there was but one such child, and that there was issue of several of the other children then living: and then the question is, whether, as against the heir at law, you can, by implication, or by supplying words, give the whole to one, in an event in which the testator has said that such one child shall not have it or whether you are authorised to divide the estate into different aliquot parts between the one child and the issue of the others, where the testator has not told you what aliquot part is to be given to the one, and what to the issue of the others. It

DEVISE.

seems impossible therefore so to divide it, unless June 5, 1818. you can supply all that I before stated, "that shall "be then living, or that shall be then not living, "but dead, leaving issue then living :" that is, unless you can add a new class. The Judges have unanimously said that there is an intestacy, and I cannot put a more satisfactory construction on this will.

Lord Redesdale. This case appeared to me at first to admit of some doubt; but now I am clearly of opinion that the judgment of the Court below is erroneous, and must be reversed.

The estates were given upon the conclusion of the trust, "unto all and every the children, &c. "that shall be then living," the last words clearly referring to the death of the last annuitant, for otherwise the word ought to be now and not then: "and their heirs and assigns for ever." So that if two survived, they would have taken in moieties; if three, in thirds; and so on. How the Court below came to divide the estate into sixths I do not exactly know. There were more than six children; and as the division was not to take place till the death of Lemuel Shuldham, he was not one of the children who could take. Then he adds, "equally "to be divided between them as tenants in common, and not as joint tenants." If he had stopped there, it might be implied that if there were only one, the one should take the whole. But then he goes on expressly to direct what is to be done in the event of there being but one such child; and he has declared that such one child

DEVISE.

June 5, 1818. shall take only in case there should be no issue of any of the other children then living. He provides for two events, that of there being more than one child, and that of there being only one, and no issue of the others. But he has not provided for a third case, that of there being only one child, and issue of the others then living. The third event, however, is that which has happened; and in that event there is no disposition. I agree therefore that the judgment is wrong, and must be reversed, the lessee of Mrs. Mathews having no title to maintain the ejectment.

Judgment REVERSED accordingly.

Feb. 6,
March 16,
June 5, 1818.

MORTGAGE.-
VOLUNTEER.

IRELAND.

APPEAL FROM THE COURT OF CHANCERY.

CORMICK-Appellant.

TRAPAUD and another-Respondents.

M. CORMICK, first tenant in tail under the will of his father, R. C. deceased (by which will estates in tail male in remainder were given to the devisor's other sons, F. C. and T. C.) before suffering a recovery, executes a settlement on his marriage, by which he limits an estate for life to himself, with remainders to the first and other sons of the marriage, in tail male, remainders to his brothers, F. C. and T. C. for life, with remainders to their first and other sons in tail male:-and afterwards suffered a recovery, mortgaged the settled estate to R. Plaistow, and died without issue male. C. Cormick, son of T. C.