CASES

ARGUED AND DETERMINED

IN THE

Courts of Common Pleas

AND

Exchequer Chamber,

IN TRINITY TERM,

IN THE SECOND YEAR OF THE REIGN OF GEO. IV.

MEDLYCOTT v. JORTIN.

THE following case was sent by the direction of the Vice Devise of an Chancellor for the opinion of the Judges of this Court:

Mr. Serjeant Hill, on the 8th December, 1806, his will in writing, of which the following is an copy:

estate at Irchester to devisor's grand. daughter A.

made

for her life;

exact

remainder to two trustees during the life of A. in trust

port contin

“This is the last will and testament of me George Hill, only, to supof Rowell, one of his Majesty's Serjeants at Law. I devise gent estates;

and after her decease, to all

and every the children in tail, with cross remainders between them in tail; and in default of issue of all and every the children of the devisor's grand-daughter, he devised to his daughter B. for life; remainder to such one or more of the children of B. as she by deed or will, attested by three witnesses, duly executed, should appoint, for their lives; remainder to all and every the child and children of such daughter or daughters, to be appointed by B. as aforesaid; and if only one should be appointed, then to her and the heirs of her body; and if more than one should be appointed, then all of them to take their mothers' shares per stirpes, as tenants in common, and not as joint tenants; with cross remainders between them (the children of such daughters), as to their mothers' shares in tail; and on failure of such issue of any one or more of such daughters, with cross remainders to the others of their issue: and in default of such appointment, and of any appointment not exhausting the whole fee, the devisor gave the estate at Irchester, or so much of the fee as should not be exhausted by VOL. VI.

A

such

1821.

MEDLYCOTT

บ.

JORTIN.

my estate at Irchester, to my grand-daughter, Ann Maunsell, for her life; with remainder to my friends, John William Bramston and John Jortin, barristers at law, and their heirs, in trust, only for and upon the several uses and trusts hereinafter mentioned, (that is to say) for and during the life of my said grand-daughter, in trust only, to support the contingent estates hereinafter devised; and after her decease, to all and every the children in tail, with cross remainders between them in tail: and in default of issue of all and every the children of my said grand-daughter, I devise the said estate to my daughter, Barbara Cockayne Medlycott, for life; with remainder to any such one or more of the children of such my said daughter as my said daughter shall, by deed or will, attested by three witnesses, appoint for their lives; with remainder to all and every the child and children of such daughter or daughters, to be appointed by my said daughter, as aforesaid; and if only one be appointed, then to her and the heirs of her body; and if more than one be appointed, then all of them to take their mother's shares, per stirpes, as tenants in common, and not as joint tenants; with cross remainders between them, the children of

such appointment made as aforesaid, to B. for life; with remainder to all her daughters for their lives, with cross remainders between them for life; with remainder, during the lives of all the daughters of B., and the life of the survivor, to support contingent remainders; and for default of issue of any or either of the daughters then living of B. he devised the said estate to B. and her heirs. A. died sole and intestate, leaving B. her heir-at-law as well as the heir-at-law of the devisor. B. had issue, nine daughters, many of whom were married and had issue :-Held, first, that B. had in the freehold and copyhold lands of the devisor an estate for her life, with an ultimate reversion to herself in fee. Secondly, that in default of appointment, her daughters then living had respectively, in the said 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 B. had no estate in the testator's said lands. Fourthly, that B. had power by appointment to designate which one or more than one of her daughters was or were to take under the will; that if one daughter only was designated, she would take under the will in tail; but if more than one was designated, they would 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.

such daughters, as to their mother's shares in tail; and on failure of such issue of any one or more of such daughters, with cross remainders to the others of their issue and for and in default of such appointment, and of any appointment not exhausting the whole fee, I give and devise my estate at Irchester, or so much of the fee as shall not be exhausted by any appointment or appointments made as aforesaid, to my daughter, Barbara Cockayne Medlycott, for life; with remainder to all her daughters for their lives, with cross remainders for life between them ;-with remainder, during the lives of all the said daughters of my said daughter Barbara, and the life of the survivor, to support contingent remainders and for default of issue of any or either of the daughters now living of my said daughter Barbara, I give the said estate to my said daughter Barbara and her heirs.

"I give all my real estate, except that at Irchester, to my said daughter Barbara, for her life, exclusive of her present or any future husband; with all and singular the same powers of appointment and disposition, rights and estates, as before given to her, over, in, or after the remainder of my Irchester estate, in default of issue of my said grand-daughter, Ann Maunsell and I do declare that the profits of my said real estate last devised shall go to the several persons successively, to and in trust for whom they are authorized to be appointed.

"I give all my personal estate to my said trustees J. W. Bramston and John Jortin, whom I appoint executors of this my will; in trust, to retain thereout for their own respective use, the sum of 2007. a-piece, for their trouble in executing the trusts of this my will, and to apply all the residue thereof, or so much as shall be necessary, in or towards the payment of all my debts; and the surplus, if any, to invest in real estates, and settle the same to the use of the same person or persons respectively, as should be entitled by this my will to the residue of all my real estates, except that at

1821.

MEDLYCOTT

v.

JORTIN.

1821.

MEDLYCOTT

0.

JORTIN.

Irchester and in case my personal estate should be deficient to pay all my debts and legacies, and the costs of executing the trusts thereof, then to raise the deficiency by sale or mortgage of a sufficient part of my real estate, except that at Irchester; and I do hereby declare, that the entirety of all my copyhold estates whatsoever, are included in the above devise of all my real estate, except that at Irchester, whether surrendered or not surrendered to the use of my will. Lastly, in case the equitable or beneficial interest of, in, or to all or any part of my real or personal estate, after payment of my debts and legacies, and the costs of executing the trusts of my will, is not already disposed of, or should eventually, during my life or afterwards, become not disposed of, I give the same to my said trustees and their heirs, in trust for my said daughter Barbara Cockayne Medlycott, to and for her sole and separate use, exclusive of her present or any future husband as aforesaid."

The testator died on the 21st February, 1808, leaving his grand-daughters, Ann Maunsell, daughter of his eldest daughter, (who died in the testator's life-time) and his daughter, the plaintiff, B. C. Medlycott, his co-heiresses at law. Ann Maunsell is since dead, unmarried, and intestate, leaving B. C. Medlycott her heir-at-law. At the date of the testator's will, and at the time of his decease, the plaintiff had ten children living, all daughters, one of whom is since dead, of full age, but unmarried. The nine others, all of full age, are, first, Matilda Sophia, now the wife of Robert Austen, LL. D., who has issue seven children, now liying; secondly, Barbara Maria Cockayne; thirdly, Mary Ann, now the wife of William Addams, LL. D., who has issue six children, now living; fourthly, Georgiana Cockayne; fifthly, Sophia Cockayne; sixthly, Caroline Eliza, now the wife of Thomas Phillip Maunsell, Esq., who has issue five children; seventhly, Catherine Cockayne; eighthly, Frances

Annabella, now the wife of William Assheton, Esq., but who has no issue; and, ninthly, Elizabeth Charlotte Cockayne.

The executors named in the will duly proved it; but John William Bramston is since dead, leaving John Jortin sole surviving executor. All the married daughters of the plaintiff B. C. Medlycott, were unmarried at the death of the testator. The whole of his estate at Irchester was freehold ;the copyhold lands were descendible in the same manner as freehold lands at common law.

The questions for the opinion of the Court were,

First, What estate the plaintiff, Barbara Cockayne Medlycott has in the freehold and copyhold lands of the testator respectively?

Secondly, Whether the daughters now living of the plaintiff, B. C. Medlycott, respectively, have any, and what estate in the testator's freehold and copyhold lands respectively?

Thirdly, Whether the grand-children of the plaintiff, B. C. Medlycott, or any and which of them, have any and what estate in the said testator's freehold and copyhold lands respectively? and

Fourthly, Whether the plaintiff, B. C. Medlycott, has any and what power of appointment over the testator's freehold and copyhold lands respectively?

The case came on for argument in the course of the last Term.

Mr. Serjt. Hullock, for the plaintiff.-It may be perhaps contended, that the purposes of this will will be best answered by giving the plaintiff an estate for life only, with power of nomination or selection among her daughters; but this cannot be done consistently with the rest of the will: and although it is confused in terms, and difficult of construction, the Court must give effect to all the provisions contained in it; from which it is clear that the testator in

1821.

MEDLYCOTT

v.

JORTIN.