and has further an estate for her life, and, if the fee is not in the trustees, it must vest in her. As to the extent of the power of appointment, the words " and of any appointment not exhausting the whole fee, &c." must in common parlance mean the quantity of interest in the estate, and not the land itself. This is the only legal construction which can be put upon them. The plaintiff has therefore an estate for life, with a power of appointing in fee; and in default of appointment, she has an estate for life, with remainder to her daughters, either for life, in tail, or in fee, as the Court shall determine upon the construction of that part of the will. Cur. adv. vult. The following certificate was afterwards sent : This case has been argued before us by counsel. We have considered it, and are of opinion, First, that the plaintiff, Barbara Cockayne Medlycott, has in the freehold and copyhold lands of the testator respectively, an estate for her life, with an ultimate reversion to herself in fee. Secondly, that in default of appointment, the daughters now living of the plaintiff, B.C.Medlycott, have respectively, in the freehold and copyhold lands of the testator, estates for life, in remainder, as tenants in common, with cross remainders amongst themselves for life, with remainders to themselves in tail respectively. Thirdly, that in default of appointment, the grand-children` of the plaintiff, B. C. Medlycott, have no estate in the testator's freehold and copyhold lands. Fourthly, that the plaintiff, B. C. Medlycott, has power by appointment, to designate which one, or more than one of her daughters is or are to take under the will; that if one daughter only is designated, she will take under the will in 1821. ཤལ MEDLYCOTT V. JORTIN, 1821. MEDLY COTT v. JORTIN. tail; but if more daughters than one are designated, they will take under the will as tenants in common for life, with remainder to their respective children, as tenants in common in tail; with cross remainders between them (the children of the appointed daughters) in tail; such cross remainders to take place, as well with regard to the shares of their respective mothers as with regard to the shares of their aunts, in the event of a failure of issue of any of the aunts. R. DALLAS. J. A. PARK. J. BURROUGH. J. RICHARDSON. Between ELIZABETH MURTHWAITE, JOHN MACPHER- and The Honorable CHARLES CECIL COPE JENKINSON, the And between GEORGE BARNARD, an Infant, by FREDE- and ELIZABETH MURTHWAITE, JOHN MACPHERSON, and A CASE, of which the following is the substance, was sent Thomas Murthwaite, being seised in fee of freehold and copyhold tenements; and being also possessed of several 1821. Devise to three trustees, of all the testator's freehold, leasehold, copyhold, and personal estate, in trust, after payment of legacies and annuities, which annuities he directed to be paid out of bank stock standing in his name, to pay all the rents, issues, profits, and produce of the residue of his estate and effects, as well real as personal, to his three nieces, E. M. and C., share and share alike, for their lives, and after their decease, or either of them, that their lawful issue should have his or her mother's share of such rents, &c. for life; and if either of the nieces should die in the life-time of the others or other of them having no issue, the share of her or them so dying, to be equally divided between the survivors of his nieces for their respective lives, and afterwards by the issue of the survivors of such nieces :-and in like manner if all his nieces, and their issue, save one, should die without issue, then such one to have the whole for her life; and after her decease, the issue of such niece, if more than one, to enjoy the whole, share and share alike; and if but one, such one to enjoy the whole alone; to hold such parts as were freehold to them and each of them, their heirs and assigns as tenants in common, and not as joint tenants; and if but one, to such only one, his or her heirs and assigns for ever; and in case of all 14 1821. MUR- V. JENKINSON. leasehold estates for years, and of other personal estate, by his last will and testament, bearing date the 29th December, 1806, and which was duly executed and attested, so as to pass freehold estates:-after directing that all his debts, funeral charges, and expences of proving his will might be paid;-gave, devised, and bequeathed to Mrs. Margaret Murthwaite, Mr. John Cuthbertson, and Mr. John Janes, and to the survivors and survivor of them, and the heirs, executors, and administrators of such survivor, all and every his freehold, copyhold, and leasehold estates, and all his personal estate and effects whatsoever; in trust, to pay thereout the several legacies and annuities in his will specifically mentioned, and by him given and bequeathed; all which annuities, he thereby willed, ordered, and directed should be chargeable upon and payable out of his 26,400l. 3 per cent. consolidated bank annuities, or such sum as might be standing in that fund in his name, at the time of his decease; and that the said several annuities should commence from and immediately after his decease. Then followed several bequests and legacies: all which he directed might be paid as soon as conveniently might be after his decease :-all the rents, issues, dividends, interest, profits, and produce of all the rest, residue, and remainder of his estate and effects all the nieces dying without issue, the whole to go to the devisor's next male heir of his name, to hold to him his heirs and executors in like manner. The niece M. married G. B. who died, leaving his wife and one son surviving; C. also married but had no issue. Two of the trustees died, and a considerable surplus of the testator's personal estate remained after paying debts, legacies, and annuities:-Held, first, that the surviving trustee had the legal estate in fee simple devised to the three trustees. Secondly, that the nieces took no legal estate in the freehold tenements. Thirdly, that the son of G. B. took no legal estate therein, nor would he at the death of the survivor of the three nieces. Fourthly, that if the devise had commenced with the words "all the rents, issues, and profits," and the passage before these words had been omitted, the three nieces would respectively have taken estates for life in the freehold tenements under the will; with cross remainders between them for life, in the event of one or two of them dying without issue; and lastly, that G. B. would, in the events as they then stood, have an estate tail in remainder in his mother's one undivided third part of the said freehold tenements, subject to be divested in part by the birth of other children of his mother, whether sons or daughters; and that he would have an estate tail in the whole of the freehold tenements, in the event of his being the only issue of the three nieces living at the death of the survivor of them, no other issue having been born. whatsoever and wheresoever, and of what nature, kind, or quality soever, as well real as personal, which he should die seised or possessed of, interested in, or any way entitled to, at the time of his decease, he gave, devised, and bequeathed unto his three nieces Elizabeth Murthwaite, Maria Murthwaite, and Charlotte Murthwaite, daughters of his late brother the Reverend Peter Murthwaite, equally to be divided between them, share and share alike, for and during the term of their respective natural lives, subject nevertheless to such provision and disposition as was thereinafter provided, touching and concerning the house and premises then in his occupation, with the furniture, plate, jewels, books, linen, and implements of household then therein, and his carriage and horses. And from and after the decease of them, or either of them, he declared it to be his will and meaning, that the lawful issue of them, and each of them, should have and enjoy his or her mother's share of all such residue of such rents, issues, dividends, and profits for life, in like manner. And it was his further will and meaning, that if either of his said nieces should happen to die in the life-time of the others or other of them, without issue of her body lawfully begotten, that the share of her so dying without issue as aforesaid, should go to and be shared and divided equally between the survivors of his said nieces, for their respective lives, and afterwards by the lawful issue of the survivors of his said nieces in like manner: and if all his said nieces and their issue, save one, should die without issue, lawfully begotten, then he declared it to be his will and meaning, that such surviving niece should have and enjoy the whole of the rents, issues, dividends, interest and profits of such residue and remainder of his estate and effects, for and during the term of her natural life; and from and after her decease, he expressed that it was his further will and meaning, and he thereby willed, ordered, and directed, that the lawful issue of such surviving niece, if more than one, should have and enjoy the whole of the rents, issues, divi 1821. MURTHWAITE v. JENKINSON. |