dying without issue then living, even though the limitation is
in the nature of an estate tail by implication only; yet, on
the other hand, they shall not er vi termini, when there is
any other circumstance of intention, import an indefinite
failure of issue, even though the limitation is in the nature
of an express estate tail, but that, in either case, the signi-
fication of these words may be confined to a dying without
issue then living, by any clause or circumstance in the will
which can indicate or imply such intention." Here, the
words are general, and there is no clause contained in the
will to shew that it was the intention of the testator to have
confined his meaning to a dying without issue at the time of
the death.-In Forth v. Chapman (a), where a testator gave
all the residue of his real and personal estate to his nephews,
A. and B., and if either of them should die, and leave no issue
of their respective bodies, then he gave the said premises to
C.-Lord Chancellor Parker observed (b), that "the devise
carried a freehold as well as a leasehold estate ;" nevertheless,
he thought it might be reasonable enough to take the same
words in two different senses as to the two different estates;
and that as to the freehold, the construction should be, if A.
or B. died without issue generally; by which there might be
at any time a failure of issue; and that with respect to the
leasehold, that the same words should be intended to
signify their dying without leaving issue at their death."
But the distinction there taken between real and personal
estate was doubted by Lord Kenyon, in Porter v. Brad
ley (c), who considered the words leaving issue, as having
a confined relation to the time of the death of the parent,
in the cases of both real and personal estate.
The au-
thority of Lord Eldon, however, in Crooke v. De Vandes,
is decidedly in favour of the distinction taken in Forth v.
Chapman. In Roe, d. Dodson v. Grew (d), where the tes-
tator devised lands to his nephew for life, and after his
death to the use of the issue male of his body lawfully be-
b) Id. 667.- (c) 3 Term Rep. 146.

(a) 1 Peere Wms. 663.(d) 2 Wils. 322.

1821.

MURTHWAITE

v.

JENKINSON.

1821.

MURTHWAITE

v.

JENKINSON.

gotten, and the heirs male of the body of such issue male; and
for want of such issue male, remainder over; and the devisee
had no issue at the time: it was held, that he took an estate
tail. Hence, the object of the testator here was to give each.
of his nieces an estate for life, and that it should not go over
without a general and indefinite failure of their issue. There,
too, it was decided, that the intention of the testator was
to be followed, provided it did not clash with the rules of
law; and that where there appears a particular intent,
and a general intent, the latter must prevail. In Denn, d.
Webb v. Puckey, Lord Kenyon said (a), that "it had been
for a long time, and very properly, settled, that if a devisor,
ignorant of technical terms, sitting down to draw his own
will, make clashing limitations, the Courts, in construing
that will, must depart from some particular limitations, in
order to give effect to the general intention of the devisor."
In King v. Burchall, Lord Keeper Henley said (b), that
"there can be no technical words in a will, but that they
are to be construed according to the intention of the parties,
and that every word ought to stand, if consistent with the
manifest intention." In Robinson v. Robinson the Court
inserted in their certificate to the Chancellor (c), that
"the devisee took an estate in tail male, to effectuate the
manifest general intent of the testator." So, here, upon the
true construction of the will, the testator's nieces must in
necessary implication be considered to take estates tail with
cross remainders.-The only remaining question then is, what
estate the trustees took. It is quite clear they took no legal
estate in the freehold or copyhold; for where an estate is
devised to A., in trust for B., to take the rents and
profits, the estate is vested in B., as cestui que trust. By
the limitations in the will, the realty became vested in the
nieces, by the statute of uses. The trustees could take no
larger interest than to answer the purposes of the will, and
although they might have had a legal estate until the legacies
(b) Amb. $79. S. C. 4 Term Rep.

(a) 5 Term Rep. 303.297, (n.) -(c) 1 Burr. 52.

1821.

MUR

THWAITE v.

and annuitants were paid, still, the annuities were directed to be satisfied out of the testator's stock in the bank annuities, and no charges were imposed on his real estate; and it appears that a surplus of his personal estate remained after JENKINSON. those legacies and annuities were paid. In Brooke's Abridgment (a), it is said, that where a man makes a feoffment in fee to his use for the term of his life, and that after his decease, J. H. shall take the profits; that makes a use in J. H... But that it is otherwise, if he said that after his death his feoffees should take the profits, and deliver them to J. H.; for that does not make the use in J. H., for he had them only through the hands of the feoffees. In Broughton v. Langley (b), where one devised lands to trustees and their heirs, to the intent to permit A. to receive the rents and profits for his life, and after his decease the trustees were to stand seised of the premises to the use of the heirs of the body of A., remainder over; Lord Chief Justice Holt said, that "this would have been a plain trust at common law, and what at common law was a trust of a freehold or inheritance is executed by the statute, which mentions the word trust as well as use." In Shapland Smith (c), where there was a devise of lands to trustees, upon trust that they should yearly, out of the rents and profits, after deducting rates, taxes, and repairs, pay the residue to C. S., and his assigns for life, after his decease to the use of the heirs male of the body of C. S., and in default of such issue, remainder over: Lord Thurlow expressed his opinion that the trustees being to pay the taxes and repairs, must have an interest in the premises, and therefore that the legal estate for the life of C. S. was in them. In Kenrick v. Lord Beauclerk (d), where a testator devised his real and personal estate to trustces, to the intent that they might dispose of his personal estate in discharge of

(a) Tit. Feoffment, pl. 52.(c) 1 Bro. Cha. Cas. 75.

-(b) 2 Salk. 679, S.C. 2 Ld. Raym. 873. (d) 3 Bos, & Pul. 175.

1821.

MURTHWAITE

v.

JENKINSON.

his debts, and such legacies as he might direct, and as to his real estates, subject to his debts, and such charges as he might make, he devised the same to I. S. for life: it was held, that under this devise the legal estate in the realty vested in I. S. for life, and that the trustees took no estate therein. In Doe, d. Leicester v. Briggs (a), where there was a devise in trust, for the trustees to pay unto or else permit and suffer the testator's niece to receive the rents, the legal estate was held to be vested in her. In Right, d. Phillipps v. Smith (b), there was a devise of freehold and leasehold estate to trustees, on trust to permit and suffer the testator's wife to receive and take the rents and profits, until his son should attain twenty-one; it was determined that the legal estate was vested in the wife, and was not affected by a subsequent leasing proviso, given to the trustees, which was confined to premises originally vested in them as trustees, or over which, they afterwards retained a power of sale. On these grounds, therefore, it is perfectly clear that the trustees took no legal estate in the realty, but that the testator's nieces took estates tail therein, with cross remainders.

Mr. Serjt. Blosset, for George Barnard (the infant) contended, first, that an equitable estate in fee passed to the trustees; secondly, that the nieces took estates for life, with remainder to their issue in tail, with cross remainders between them; and, thirdly, that George Barnard took a vested remainder in tail in his mother's share, subject to be divested in part, by after-born issue of his mother, and a contingent remainder in the shares of the two other nieces, who were his aunts. First, the trustees took an estate in fee under the bequest made to them; for all the testator's freehold and other estates were vested in them, to pay thereout the several legacies and annuities specifically mentioned in the will, as well as for other purposes therein also speci-(b) 12 East, 455.

(a) 2 Taunt. 109.

fied. Although it has been found that his personal estate was sufficient to satisfy the legacies and annuities bequeathed, still, it does not appear whether the government stock, from which the latter was to be satisfied, was in existence or not. The mere appropriation of that fund for that purpose, would not prevent the trustees from disposing of the real estate, and more particularly so, if it should turn out that it was insufficient to discharge the annuities in question, which required a continuance of the estate until they were satisfied. They must also take a legal estate to support contingent remainders arising in the will. The legal estate in fee therefore, is vested in them, and the equitable only, in the devisees.-Secondly, the nieces took only estates for life, as it is expressly limited to them by the terms of the will. In the first place, there is a devise of the residue of the testator's estate to his three nieces, in equal shares for their lives; and after the decease of either of them, their lawful issue are to enjoy the mother's share in like manner; this must mean the immediate children of the nieces only, or on lawful issue living at the time of their death; and in general default of issue, the interest of each of the nieces is controlled to an estate for life, and the word "issue" is distinctly used by the testator in that sense. This is apparent from the general intention expressed by the testator in the latter clause of the will, which negatives the idea of his giving them an estate tail; as he has expressly directed, that "if his nieces should die without issue, the whole of the residue was to go over to his next male heir." The word "issue" in primary acceptation, is either a word of purchase or of limitation. So, the devise to the lawful issue of the nieces, "in like manner" must mean that they were entitled to take share and share alike, and on the same terms as the devise was made to the nieces in the first instance. It has been urged, however, that the term "issue" must be taken as a nomen collectivum, and embracing all the issue, to the utmost extent of the family; but the testator did not mean to use it as a

1821.

MURTHWAITE v.

JENKINSON.