111 X.L.C., 623 DE ~ ~ A ~ ~ ~ l R W. DE ~ E A U V ~ ~ ~ Cl8521

inent, by any mode, who were the parties to it ; and not that' une distingu~shed from

the others should have the poxer so to do, wpecially wheii the consequences of that

are consequences enuring only to the benefit of one, and not to the benefit of all. It

seems to me, the~efore, that this opinion, which has been delivered, corresponds with

the judgment of tche Court of Queen's Bench.

My Lords, the defendant may rely upon the s t a ~ ~ e n t , in the latter part of the

plea, which is a strclng fact, and.weR c ~ ~ ~ c u l a ~ to arrest attention; but I own that,

on a deliberate consideration of the matter, it does not appeur to me essentially to

vary it. It is, " That the plaintiffs accepted

and received the note upon the terns and conditions of the agreement." That

appears to me only equivalent to what would be expressed by " without prejudice to

the a~ reem~nt ; " that is, they recognise the existence of the agreeme~t,-they take the

note subjeet to the agree~~ent . Rut how subject? subject to its beiizg enforced

according to law; that made to be, by all the parties consenting to the enforcement,

and all iwmering damages con~mensurute with the joint injury. I therefore think

that tlie latter part of tlie plea does nothing more than import that the note was not

taken with the view of affecting in any respect the validity of that agreement ; and I

think, as I before stated, that your ~ o r d a h i ~ ~ vi11 best 0 ~ ~ t u a t ~ the intention of

the parties by holding that i t is not competent to the defendant to set up this plea

in bar of the form of action set forth in the d~ la ra t ion , but E5231 leaving him,

together with the persons who joined with him in the making of that contract, to

recover such c o ~ p ~ s a t ~ o n as it was the object of the partim should be recovered

when they made the agreement ; namely, the damages sustained by all.

It appears to me, therefore, that the opinion of the mqjority of the learned Judges

;s that upon which your Lordships ought to act; and, with that respect which is

clue to the learned Judge who differs from them, your Lordships, acting upon those

principles which are perfectly well recognised, will aErm CIiis ~ u d ~ i ~ e ~ ~ t . I think

the case of W P ~ R ~ ~ P Z Z v. Lnngstma (1 Excii. Rep. 6341, cited in the nrguuient in the

Court of Queen's Bench (13 Q.B. Rep. 892), as your ~ o r d s ~ i ~ ~ s may be aware, per-

fectly recognises the principle, that a contract made with several parties cannot be

severally treated. I therefore propose to your Lordships that the present judgment

should be affirmed,

I consider,

upon the grounds stated in argument in the Court o€ Exchequer Chamber, from which

this record comes, &at the opinion of the learned Judgw ought to be adliefed to. I

have the greatest possible respr?ct for the dissentient opinion of my honourable and

learned friend Kr. Justics Erie; but, upon the whole, I think w5 ought h act in

accordariee with the view which is adopted by the great majority of the learlled

Judges; and I do not see any necessary discrepancy between them and the Judgment

of the Court of Queen's Bench.

What is tbe latter part of the plea?

Lord Brougham.-1 entirely agree with rny noble and Iearned friend.

~ ~ ~ d ~ ~ i ~ e I i t for the d e f e ~ ~ d ~ n t in error.

[&ZgJ SIR JOBN E D ~ ~ O ~ ~ DE ~ E A ~ ~ ~ O I ~ , B a i ~ . - ~ ~ ~ e 7 r a ~ z t ; I C r ~ ~ ~ ~

BENYOM DE BEAUVOIR,-Res~l?zdert [Xarch 9, 18521.

[Xews' Dig. iv. 282; xv. 851. S.C. 16 Jur. 1147; and, below, 15 Sim. 163; 15 L.J.

Ch. 305; 10 Jar. 466. D ~ s t i n ~ u i s ~ ~ e d in W ~ n ~ ~ e ~ d v. W ~ ~ ~ ~ ~ ~ ~ ~ , 1878, 9 Ch.

D. 659 ; and Reay 'o. Bouito~i, 1883, 25 Ch. D. 218. Considered in Low v. ~ ~ ~ ~ t ~ ,

1856, 2 Jur . N.S. 344; Smith v. Bvltcher, 1878, 10 Ch. I). 115; Comfort v. Broicn,

1878, 10 Ch. I). 151 ; and Berens v. Fellowes, 1887, 56 L.T. 394. Cf. also In re

Jeafreson's Trum, 1866, L.R. 2 Eq. 280; Zn re Goods of DiiL'or~, 1878, 4 P.D. 83.1

tPiZI--" Right Neirs , ' - ~ i n ~ ~ t u t ~ # ~ a of real and ~ e r ~ o ~ ~ ~ ~ ~ ~ t e - ~ ~ o ~ e ~ to convert

personut estate.

A tealatar made a will in the foIIowing form : " ~ r ~ i e r ~ a s 1 ani seised in fee-simple

of divers f reehcrld manors, or reputed rnaiiora, messuages, lands, tenements,

rents and h e r e d ~ t a ~ n e n ~ , situate, etc., and of a leasehold &ate in, etc., and

206

DE B E A ~ V ~ r R ‘U. DE ~ ~ A U ~ T O ~ R [I8521 n r H.L.E., 8%

also of a copyh#ld estate, situate, etc., and also of freehold estates in, ek.,

and of large sums in the funds of England : Now I do hereby give and devise,

after my just debts and funeral expenses and legacies are paid (which I order

to be paid out of my personal estate), all my estates in the funds of England

and a11 my said manors, etc.,” unto three persons in succession, and their sons

successively in tail male, in strict settle~iient ;“ and for default of such issue,

I give and devise the same to my own right heirs for ever,” Ne then gave his

trustee& a power, with the consent of the person who might be in possession,

to lay out his personal estate in the purchase of freeholds, eke., and to settle

the same when purchased to such uses as were declared of his ‘‘ manors, or

reputed manors, messuagw, lands, tenements, rents, hereditaments, and pre-

mises devised by this niy will, as shall be then existing unde te r~~ned , or

capable of taking effect, etc., to, etc., for no other etxiate, use, trust, or purpose

whatsoever : ”

Held, first, that the pawer to trustees to convert, personalty into realty did not

operate as an absolute conversion : but, secondly, that, on the face of the will,

it .ras the intention of the t e ~ a t o r to make the two funds a blended property,

and to give them the character of real estate, and to make both properties go

together, and to give both to persons expressly designated; and that such

intent~on did nota cease with the failure of issue male under the lin~~tations,

so as to make the real estate afterwards go iti one way, and the personal estate

in another.

This was an appeal against U decree of Vice-Chancellor Rigram, made in a suit

instituted to obtain a declaration of the true construction of the will of the late

Iteverend Peter Beauvoir, of Dowr~ha~”ha11, in the county of [5253 Essex. The ap-

pellant was the personal i~epresentative of the testator’s sole next of kin, and the

respondent the testator’s heir-at-law.

The will, which appeared to hare been drawn by the t ~ s t a t ~ r ~ r i thou t p r ~ f e s ~ i o i ~ a ~

assistance, bore date the 27th day of JuKy, 1800. After giving, in the ordinary

form, pmuniary legacies to seiieral indiriduals, the testator gave a sum of &6000

in the 4 per Cents. to his godson R. P. Whish, half of the inhrest of which was to be

expended in his maintenance and education, and the other half, with the principal,

to be paid over to him when he should arrive a t twenty-one; but if the said B. P.

Whish should die before twenty-one, then the said &6000 were given to “Xartin

Whish and Richard Benyon, and their heirs,” during the life of Narriet Whish, and

for her separate use, with a power of appoi~~tn~ent . The will then proceeded thus:

‘‘ And where as I am seised in fee-simple of divers freehold nianors or reputed nianors,

messuages, lmds, tenements, rents, and hereditanients, situate, etc., and of a lease-

hold estate in, etc., and also of a copyhold estate situate, etc., which T have sur-

rendered to the use of my will: And also of freehold estates in Essex, and of large

sums in the funds of England: Now I do hereby give and devise, after niy just

debts and funeral expenses and legacies are paid, which I order to be paid out of my

personal estate, all my estates in tlie funds of England, and all my said manors, o r

reputed nitiiiors, messuages, lands, tenements, tithes, rents, hereditanients, and pre-

mises, both freeho~d, leaseho~d, and copyl~old, and what other kind and nature soever,

and wheresoever situate in the kingdom of Great Britain, and whereof I have power

to dispose, and all niy estate, right, title, and interest therein, in possession, rever-

sion, or othwwisa howsoever, with their and every of their rights, members, and

appurtenances, unto Edward Benyon, second son of the 15261 late Richard Renyori,

of Englefield-house, in the county of Berkshire, and his assigns, for and during the

term of h i s natural life, without irnpeachnient of waste; and from and after the

determination of that estate, I give and devise the same to Richard Renyon, of Engle-

field, in the county of Berkshire, and Martin Whish, of Berners Street, in the county

of ~ i d d l e s e ~ , and their heirs, during the life of the said Edward Benyon, in truct

to preserre the contingent remainders hereinafter limited from being prevented,

defeated, or destroyed, and for that purpose to snake entries and bring actions, as

occasion shall be or require; in trust, nevertheless, to permit and suffer the. said

Edward Beryon and his assigns to receive and take the rents and profits thereof

during his life; and from and after the decease of the said Edward Henpon, I give

207

111 H.LC., 887 DE ~ ~ ~ ~ V O ~ ~ 1). DE 3 E ~ U V O ~ ~ [11852]

and devise the sanie to the first, second, third, fourth, fifth, and every the son and

sons of the body of the said Edward Benyon 1a.wfully to be begotten, severally, sue-

cessively, and respectively, one after another, in order and course as they shall be in

p r ~ o r i t ~ of birth and sen~or~t,y of age; and the several and respective heirs male

of the several and respective body and bodiw of all and every such son and sons

awfully issuing, the elder of such sons, and the heirs male of the body awfully issu-

ing, to be always preferred, and to take before the younger of such sons and the

heirs male of Itis and their body and bodies lawfully issuing.” There was a similar

gift with like ~im~tations, to Charles Benyon, the third son of Richard If3enynn, of

Englefiefd, nnd then t*he will proceeded thus : ‘‘ And for de~ault of such issue, I give

and devise the same to Richard Benyon [the respondent], eldest son of the late Richard

Benyon, of ~ n g I e ~ e ~ d , in the county of Berkshire, and his assigns, for and during

the term of his natural life, w i t ~ ~ o ~ t irnpeac~~nie~~t of waste. And from and after the

d e t e r m ~ ? ~ ~ ~ t i o n of that estate, 15273 I give and devise the sam5 to the said Martin

Whish and hig heirs, during the life of the said Richard Renyon, in trust, by the ways

and means aforesaid to preserve the cor~tingent rei~~ainders, but, nevertheless, to

permit and suffer the said Richard Benyon and his assigns to receise m d h k e the

renta, issues, and profits thereof during his life. And from and after the decease

of the said Richard Benyon, I give and devise the same to the first, second, third.

fourth, fifth, and all and every other the son and sons of the body of the said Richard

Benyon lawf ully to be begotten, severally, successively, and respectively, one after

another, in order and course as they, and every of them, shalI be in priority of birth

and sen~or~ ty of age, and the several and respective heirs male of the body, several

and respective body and bodies, of a11 and every such son and sons Iawf ulIy issuing :

the elder of such sons, and the heirs male of his body awfully issuing, to be always

preferred and to take before the younger of such sons, and the heirs male of his and

their body and bodies lawfully i s s u ~ i ~ g ~ and for d e f a u ~ ~ of such issue, I give and

devise the same to m g owpz rigfLt f t e im for ever.” The will then gave certain powers

of leasing, and some additiori~l Iegneies, and appointed the responde~~t and art^^^

Whish executors, and conc~uded in the f o l l o ~ ~ ~ ~ i g words :-*‘ And I do giw a power i o

my said trustees, wit& the consent of the person who may be in possession and entitled

to the pro^^ thereof, to lsty out and invest the residue and surplus of my said per-

sonel estate in the purchase o r p u r ~ h a s ~ of freehold messuages, lands, tenements,

and h e r e d ~ t ~ ~ ~ e r ~ ~ , within that part of Great; Britain called ~ n ~ l a n d , and to settle

and convey the same, when purchased, to, for, upon, aad wbject to such and so many

of the uses, estates, trusts, powers, provisoes:, and ~ i ~ ~ t a t i o n s , h e r e ~ n b ~ ~ o r e limited,

created, and declared, of and concern in^ niy said manors or reputed ~ ~ a n o r s , mes-

suages, [628] bads, tenements, rents, h~red~taments, and premises, devised by this

my fast will, as shall be then e ~ ~ s ~ ~ n g u ~ ~ d ~ t e ~ ~ n e d , or e a p a ~ ~ e of taking e%&, and

to and for no other estate, use, trust, or purpose w~~aisoever.”

~ d ~ ~ r a Benyoii aud Charles Benyo~, the first tenanis for life, nan~ed in the testa-

tor’s will, dep~rted this life without issue, in his lifetime.

The tesLator died in September, 1821, leaving the respondent his ~ ~ e ~ ~ - ~ ~ t - ~ a ~ , and

the last. in successioi~ of the devisees under the will, him surviv~ng. The r ~ ~ p o n d e n ~

is a widower without issue.

The next of kin of the testator at the time of his death was Mrs, Mai-y M ‘ ~ o u g a ~ ~ ,

who a f ~ r ~ ~ a r d s became the wife of the appellant, then John Edmond Brown, Esq.

uently Sir John E. BIOWII, Bart,), and who has since as sum^ the name of

De Beauvoir, and is her personal representative.

On the 5th ?&arch, 1846, the nppe~lant filed hi8 bill in the Court of Chancery,

by which, after stating the facts above set forth, he charged that, a c c o ~ d i n ~ to the

true constructio~ of the will, the a p p e ~ l ~ ~ x ~ t was entitled under the final ~ imi t a t~on in

f ~ v o u r of the testator’s right heirs in renia~nder ~ x ~ ~ ~ n t , on the death of the re-

spondent without leaving any son, to aU the ~ s t a ~ r ’ s personal estate and esects

which are c o ~ p r ~ s e d ia and agected by that l i n 3 ~ t a t ~ o n ~ but that the r~ponden t

alleged that, according t o the true construct~on of the will, the whole of the personal

estate would, in the event of his death without 1eaQ~ng any son, belong sbsolutely to

him as he~r-at-la~T of the testator, that even if the appel~ant had any interest in any

part of the testator’s personal eskte, he had ceased to have such intereet, inasmuch

as the whole of such persona1 estate had, by virtue of the power for that purpose

208

-

DE B ~ A ~ V ~ I ~ b. DE ~ E A U ~ ~ ~ ~ ~ [1852J I11 H.L.C., 529

contained in the will, been invested in the purchase of real estates, wherebr it bad

ceased to be personal estate, and became real estate, and f“29] as such would pass

to the testator’s right heirs in the event of the death of the responde~it without leao-

ing issue nialtt ; and the bill charged the co~ t ra ry thereof to be the truth, and alleged

that a brge part of the personal est& r e m ~ ~ i ~ ~ u x ~ i n v ~ t ~ , and that the other part

had been invested by the respondent in his c~aractex of h e i r - a ~ ~ a ~ or as tenant for

life under the will, and not in his character of surviving trustee thereu~~der, and

that such investment would not alter the nature of the property, which would still

continue personal estate. The bill prayed B declaratio~i of the trusts of the rill i n

favour of the p ~ a i n t i ~ ’ s right as represent~ng the testator’s sole nest of kin.

The respo~ident demurred for want EE-f equity, and by 8x1 order of the Tice-Chtan-

cellar of ~ n ~ ~ a n ~ , of April 21, 1846, the d e ~ u r r e r was allowed (15 Siin. 163).

The ~ ~ p ~ e ~ l a n t ttppealed tqpfnst the order a ~ l o w i ~ ~ the de~urrex .

Mr. Bolt and Nr. Malins (Mr. GifFard was vith them), for the ~ p p e l l a ~ t . - ~ ~ ~ the

true constr~ct,ion of this will, by the words ‘‘ “x;’s right heirs,” the personal estaw

must descend to those who, according to the o~,dinars rule of law, will be e i ~ t ~ ~ l e d to

p e ~ o i i a ~ estate, and the denzurrer ta tliis bill cannot be sustahed,

The appel~ant contends, as his first p~,opos~t~on, that after e ~ h a u ~ t ~ ~ ~ the isme

xiAe of the person^ ~ e n t ~ o n e d in the will, it was the i n ~ n t i o n of the t ~ s t a t ~ r that his

property should descend as i f be had died ~ n t e s t a ~ , Yhab i s the effect of whitt he

here directs. The word ‘( heirs ” is p o ~ u ~ ~ r l y used as iz word of succession, and it

i s always so employed in the abeence of a specific intention to benefit any partioulnr

person. It has certainly been so used by thia testator, who was not a p~ofes s~ona~

person, and who ~ ~ 3 ~ 1 has shown in other parts of the will that he did not know the

d ~ ~ t i n c t i o ~ ~ between heirs and e ~ ~ u ~ o r s . The word heirs has been used in this

popu~ar sense, not by i ~ d i ~ i d u ~ ~ s alone, but b s the ~ e g ~ s l a t u r e itself. Thus, i r r the

9 Geo. 2, C. 36, one of the ~ o ~ n ~ a ~ n Acts, the phrase employed is “ disherison of h-

ful heirs,” and i t i s there employed with reference both to real and personal succes-

sion. At c o ~ ~ o n law, tho word ‘‘ heirs ’’ has but one strict legal primary s i ~ i ~ i ~ c a t ~ o n ,

and that irr, as 1% word of descent in reference to real estate; but when the cmtexy of

a will does not. ~Xlow it to be so ~ p p ~ i e d , then the Courts resort to a swondary s i~n~f ica-

Lion. To restrict it to ita p r ~ n ~ a r y s ~ ~ ~ ~ c a t i o n as a word of descent, even in rrfer-

esta$te, them niust be tl previous desc~nd~ble estate which the heirs are to

take. If iz testator devises, or a man by deed gives, an estate ‘‘ to the heirs of A.,‘’

there is n o t l ~ ~ ~ ~ preceding it on wtniob to ~ n ~ r a f t this word as ;I word of descent-

it must these€ore be treated as a word of purchase ; but if there had previously been

an estate devised or given to A,, then the devise or gift to the heirs of A. would have

a root to which the word could be ~ p p ~ i e d . There i s no such root on which to e ~ ~ ~ r a f t

it here. The will supposes a11 the pre~ious d~vjses La have failed, and then piyes the

p r o p e ~ y to the ~ ~ ~ r ’ s “ own right heirs.’>

The second proposit~on therefore follows ; that where there i s any j i i ~ r e d i e ~ ~ t of

descent in the t r a n s ~ i s s ~ o n or devolution oE property~ whether real or personal, the

nature of the p r o p e ~ ~ y must ~ o ~ e r ~ ~ the devolutio~~, unless the c o n ~ r ~ r ~ ~ t e ~ ~ t ~ o ~ ~

appears.

The word ‘‘ heirs ” is here in the plural

number; but t h t cannot make any d i~e rence~ though Lord Coke says (Co. Lit. 8 b)

that there i s a d ~ ~ i n c t ~ o n betweea the use of the word in the s~ngular and p ~ u r a ~

n u ~ b e r s , so that ‘‘ i f a. maxk @re land to a mazi [631] and h i s heir in the ~ ~ n ~ u ~ t l r

number, he finth but, an estste fw life, for his heir c a a ~ o t take a f e ~ s ~ ~ ~ l e by demeent,

b ~ a u s e he is but one; aiid therefore in that case his heir shall take noth~ag.’~ Xr.

Hnrgrave, in a note to that passage (Co. Lit. 8 b. n. (4)), denies the propudtiou,

and says that he& i s lzomen ~ ~ ~ ~ e ~ t ~ ~ u f ~ in a deed as well 85 in a will, and ~ ~ ~ e r a t e s

in both in the same maanex*, as heirs in the plural nun~ber. The tvue d i ~ t ~ ~ c t ~ o n ~

p e ~ ~ ~ a ~ % , i that an estute tail may be thus € r e ~ ~ t ~ d , but not an estate in fee, Tliere

i s a modern case in which tliat distinction i s expressly taken, ~ ~ ~ ~ f ~ ~ e ~ s 17. ~~~~0~

( 2 My]. and Cr. 37G), where a s e ~ t I e ~ n ~ n t w e made to the use of tbe settlor for life,

r e ~ a i n d e r to the use of his wife for life, r e ~ ~ ~ a ~ ~ ~ d e r to the heir female of the settlor,

on tbe body of his wife begotten ; aiid the settlor haring had four daughters, it was

held that, under the ~ ~ ~ ~ ~ ~ ~ 0 1 ~ to the ‘‘ heir female,” the d ~ u ~ h t e r s took a life estate

209

Apply theso propositions to this will.

1x1 H.L,C., 632 DE ~ ~ A ~ ~ o ~ R 1). DE ~ ~ ~ u ~ o I ~ f18521

in the lands, as pu~hasers , heir ” and .‘ heirs ” may, therefore, for

suoh a purpose, be regarded as s y n o n ~ o u s .

It comes after a

series of l i i ~ i t a t ~ o n s ~ in which the tes t~~tor settled the property in strict succession,

for the purpose of what was evidently his favourite object,-that of founding a

~a[nily. When rnaking those li~~iitatio~is, he hoped that they would take effect, and

he had no intention to benefit his own right heirs a t that time. Richard Benyon

was his heir-at-la~~~,-he was pemorsa ~ e ~ ~ ~ ~ u t ~ , - ~ ~ ~ was put- the third in the series

of l ~ m ~ ~ a t i o n s , which shows that the testator had an intention distinct from that of

benefiting his heir by descent; and then, though the testator knew of daughters

existing, he made no limitations as t o them, but having kept the property as long as

he could in the niale line of the ~ ~ ~ ~ o K I s , he did suppose it possible that his great

object might. fail, and then he made this f5323 devise to his “ own right heirs.”

That his will was not made with perfect technical strictness, but wti8 SO framed that

his f a ~ o u r ~ t e object i ~ i g ~ i t easily have been defeated, i s plain, T h 8 , there is no pro-

visionon, that the personal estate shall not v e t in the first son of Edward Renyon.

If ~ d w a r d had had a son born, and that son had died ~ n i m e ~ ~ a ~ ~ y afte~wards, that

son would have become entitled to the whole of the pruperty which, on i t s death,

would have gone from the soti to its father, or to its legal r ep resen t~~ t~v~ . Yet that

wouM have defeakd the gretgt object of the testator, which was to found zt family,

Ne never could have underst~od such to be the result of using the word heirs as he has

used it, or he c e r t ~ ~ ~ ~ l y would not have used it in that ~ a i i n e r . Another circuin-

stance of iI~~portar~ce in the construction of th is will, with a view to show that the

testator intended to use the words “ nig own right heirs ” in a popular sense, is, that

he eniployn that word in another part of the will, namely, that relating to the gift

of ~~~~~~ to Mrs. %%ish, with reference to nioi~ey in the funds. On the ~ ~ u ~ ~ t i o ~ ~ of

~ n t e i ~ t ~ o n , t~~erefore, there seems no room for doubt that, the ward “ heirs ” was used

by the testator in the popular, arid riot in the strict and primary sense applied to it

by the eoix~~~ion latv. It c a n I ~ ~ ~ t be o o n ~ n d ~ that the word ‘‘ heirs ” is an i K i ~ e ~ i b ~ y

technical word, espeoiaIly when it is applied, as it’ is here, to a niixed gift of real

ilnd personal estttte. This ~ ~ r ~ u i ~ ~ e n t , for a popular constructio~i of the word does

not give a double meaning to it, but simply makes it applicable according to the

nature of the property to which it is applied, as if the testator had added, ‘‘ entitled

in due course of succession.” Xn ~~~~~~ Y. Atkyns YThe Law of R e d Property,

as ~ ~ i ~ i ~ x ~ i s ~ e r ~ d in the House of rds,” p. 376 et aeq.; 17 Ves. 255; 19 Ties. 299;

Coop. Ch. Cas. 111 ; 1 Turn. rind RUSS. 1431, one question pias as to the meaning of

a devise to “ in37 family ; ” m d Lord ~ e d ~ d a l e , when the case was in this house,

[533] said (“ The Law of Real Property,” etc. 385), “ ‘ Family ’ cannot rnem heir-at-

law-that i s to defeat the whole will.” 111 this case to give the words my own right

heirs ” the n i e a K ~ i ~ ~ ~ of ~ e ~ r - ~ ~ l a w , would have exactly the same edeet.

~onsidera~?le stress was laid in the Court below on the power given to the trusteei,

to lay out, wit+h the coI~sent of the tenant for life, the surplus of: the personal estate in

the pudhase of laud ; but that is of 1x0 impor t~n~e , for the trustees of t ~ ~ e ~ ~ ~ s e ~ ~ e s would

have had no power to lay i t all out. It as necessary to give them such a power.

~ u p p o ~ e that power had been, which it was not, euercised$ the conversion of per-

sonalty iitto realty would not have itffected the true eoxistructioxi of the will. The

co~iversion would ham been a coiivers~oi~ merely for the purpo~es of the will. The

testator intended to benefit i~ particular individual for the time; but if that special

object should fail, he intended to let his successors take the property. If the money

had not been invested in the purchase of land, hie personal repreaentati~e, and not

his heir, would have been entitled to i t . The power was a mere aut~iority to invest,

the better to provide for this family, which the testator hoped to create out of that

of the Benyons.

The

first wiis that, of FomBer v. 8ieiu.w (4 Ves. 766). Thera the gift was (‘ to my right

heirs on the part of iiny mother; ’’ and Lord ~oughborough held a sister and a

sister’s son to be entitled against remoter relations. In that case the dwcent was

broken; there was a devise tu trustees, atnd there was no series of l i ~ i t a ~ i o n s in

which the testator pointed out the purpose of his will, and showed how he was desirous

of b1endhg real and persona]. estate together. Besides, there the gift was not as

210

The words

Then what i s the meaning of the word (‘ heirs ’I in this will?

The a ~ i t ~ i o r i ~ i e ~ reli d on in the Court below do not ~ a r r a ~ ~ t h i s j u d g ~ e ~ t .

here, to '' right heirs )' generalfy, but to right heirs on the part of the tes-[@%]-

tator's mother, which was selecting a particular class; and therefore the law was

not allowed to take its ordinary course. In G ~ & ~ ~ ~ ~ e v. of^ (14 TTes.488) the

gift was of real and personal estate to the daughter-i~~-~aw of the testator, and after

her death to her '' nighest heir, to enjoy the same." Again, there was no series of

linzitations; the person was pointed out, and it was a mere question of intention

t tq to the ~ e r s o ~ ~ a l t y and realty both going to one ~ ~ ~ d i v i d u a ~ ; and the word he+ was

in the singular, which is particularly appropriate for a taking by purchase. But

for the intention being clear, and the person being point& out, the case would not

have been decided as it was. In ,Swailze v. Bwtol't (15 Ves. 365) the devise was to

trustees to convey to the heir or heirs-at~law of her cousin W. C., deceased. The

heir of W. C. was also the heir of the testatrix, and there was no ingredient of

descent in that case, and the gift was also '' to the heirs, executors, and adm~nistrator~

of the heir or heirs-at-law." The descent was there broken, and the Lord Chancellor

said (15 Yes. 369, 370) : '' The efeect of this devise i s to break the descent, vesting

the estate in trustees, itnd directing them to convey to the persons described as pur-

chasers. %'here the legal descent is, by devise to trustees, broken, does the direction

to persons, not in the character of heirs of the testatrix, but who happen to be so,

make t.hem take by descent, as they cannot take in law 1 '' These passages explain the

principle on which that judginent proceeded. In ~ o ~ ? ~ ~ e ~ v. Blat~ire (4 Russ. 384),

which is the ctnly case of the gift to the heir of the testator, thera was a simple legacy

o f g400 to " nzy heir ; " and there the heir took as persom designata. Sir J. Leach,

in giving jud

xi.) E5351 where the legacy was (' to A., xiid failing him by decease before me, to his

heirs ; " and r e ~ ~ r k 0 d , that '' where the word he& is used to denote succ~ss~on, there

it may well be understood to mean such person o r persons as =odd legally succeed

to the property, accord in^ ta its nature and quality." The word " heirs '' was treated

as a prord of w.&stitution, and not of strict ~ i i~z i t a t~ i~n . In the same way, gtivelkind

or borough ~ n g l i s h lands being devised to " the right heirs of J. S.," the heir-at-~aw

of J. S., and not his gavelkind heirs. and his eldefit son, and not his youngest son,

\\.ould take (1%. Abr. tit. Heir G, 5 , pl. 1 and pl. 8), because heir is a ntlnie of pur-

chase, and becxause there i s no prerious taker of t,ha property through whom the land

ean tome t o the heir of J. S., qualified with any in~redient of deseent. In &pt r.

Pyot (1 Yes. 335) a devise of r e d and personal estate, '' in trust for the nearest rela-

tion of the Pyots," was held to describe a ~ ~ a r ~ ~ c ~ l a r stock, and the mixed fund did

not go to tlie heir-ablatv of that name. RQllO?m$! v. 1io1lozony (5 Ves. 399) is a strong

authority for the appellant, so far as the reasoning of the Court is concerned, for it

shows that the word heirs may be used as a ~ ~ l y ~ ~ ~ ~ gunicd succession, both to real

tind persoad property. In Wnre v. Ro?rlmtd (2 PhilX. 635) an annuity of ,6600

was to be paid to the ~ s t ~ t o r , s daughter for her life, and on her death the principal

nns to be divided amongst her children, if slto had my, but if none, then '' to and

amongst his ~ i e i r s - ~ ~ l a ~ . , share and share dike." In a subsequent part of the will,

she was api~ointed by nanze residuary legatee. She was his sole he i ress -a~-~a~, rid

nest of kin at the time of his death ; and it was held that she, and not his heir-at-law

at the time of her death, \vas entitled ta the ultimate gift of the principal sum. In

that case. [536] Lord Co~enha i i~ referred to ~ ~ l ~ o w ~ ~ v. ~ ~ ~ ~ o u ~ ~ ~ with a p ~ ~ r o b a ~ ~ o ~ ~ ,

and adopted its doctrine, and acted on it. In Ewam v. Satt (6 Beav. 266) thore was

a gift ta Sarah Evans of the use of a sum of nioney for life, and at her death to her

children; and mother gift to the testator's son, and in default of his issue, to the

(' heirs " of the above-n~~~ned Saralz Evans. It w m held to go, at the death of Snrah

Evans, to her nest of kin. In Gittings v. WDewnof t (2 Myl. and K. 69) the gift of

legacies was '' to the children of my sister, o r to their heirs." Some of the children

died in the lifetime of the testator. Sir J. Leach held that the legacies to these

ch~ldren did riot lapse, but that their next of kin took by subst~tution at the death of

the testator. That decision w8s affirmed by Lord Ch~~ncellor Brougham, who

observed (id. "i), " Here it may be said that no distinct subst~tution is mnde, inas-

much as the word heirs is of ambiguous iniport when applied to U. legacy. But there

is really ~ ~ o ~ ~ ~ n ~ in this objection, for the sense in which this word shall be taken

when applied to personalty is fixed by many decisions. It designates the heir of the

~ e r s o ~ a l t y : that is, the next of kin." The principle on which tliat rule is fou~zded

21 l

X I 1 H*LC., 837 DE ~ ~ A u ~ ~ I ~ v, DE BEAUTOIR [l852]

i s derived froin the nature of the property. ~0~~~~~ v. ~ o ~ ~ ~ ~ ~ Z ~ (14 Sim. 327) mill

perhaps be cited on the other side; but it does not bear on this q u e s t ~ o ~ ~ , for it de-

pended altogether on the words of the will, and the person entitled took as being a

person designated. The same e~p lana t~on 3s applicable to th0 case of Dawers v. Lewd

~ l u r e n ~ v ? ~ (1 Vern. 35) where the word heir was a word of description, and designated

the person who was to take.

When

personal property IS given to [E371 ‘‘ heirs,” the instrun2ent must be looked at, in order

to ascertain what was the i n ~ n t ~ o n f tbe testator. thltsss itt is plain that he intended

to use the word in its strict legal sense, i t must receive a construction according t o the

subject-matter of the gift. Here the testator had a particular object, to the acconi-

plisli~~eiit of whch he devoted, in the first‘ instance, all his property; but he formaw

that that object might* fail; and then, feeling that the great purpose he bad in view

would be defeated, he becanie ~nd~fferent to any special appropriat~on of his personal

estate, and gave his property, in the ordinary way, among h is relations. He did Rot

give i t to m y p a ~ ~ c u l a r ~~~d iv idua l , but to his “ omi right heim,”-a phrase which

niust be considered to nman such persons as would take thia particular kind of pro-

perty, had 110 left it vritliout m y specific direetions whatever. His fa~our i te object

having failed, he Iet the law take its course with respect. to t8his property.

Mr. Bethell and Mr. Lee (Mr. Erskine was with them), for the respox~deiit.-~f re-

course is had to le$ principles, the meaning of the words ‘‘ right heirs ” may be easily

discovered. In the case of ~~~~2~~~~~~~~ 5.. ~ ~ ~ ~ . ~ ~ Z (2 Clark ~ i d F. 572 j 1 Clark rtnd F.

8Y5), in the judgment of this House, thess principles are fully inve~t i~a ted and ex-

plained. The fallacy of the arguin0nt on the other side is this:-It is assumed, that

because, r f the ultimate limitation of a relal estate was t o right heirs o r heirs-at-lay,

they woufd be in by dfsscent, and not by devise; therefore, if real and personal estate

are ~ ~ e ~ ~ e d together in tlm same serien of Ximitations, the result, would toe: the same as

an i n i e s ~ ~ ~ with regard to p~rsonal estate : the c~i ic lus i~~n bei g, that bec~use, under

this form of limitation, quoad the realty, tfhe heir will take by dment, it is no gif

aIZ as to the pe r so~ i~~ ty , but the next E5331 of kin conies in for it under the Statute of

Distributions. This assnniption i s neither justified by authority nor principle.

Under a will giving the f ~ s i m p l ~ to the h e ~ r - a ~ l a ~ ~ ~ he would take by descent, yet the

devise viould not be roid,-it might be good for some purposes as against him. It i q

not wholly to be disregarded.

[The Lord C h a ~ ~ c e ~ l o r . - ~ e devise dmws the iiitention that the heir should take ;

the 1a.w gives effect to that i n t e i ~ t i ~ n by R higher title.]

That< i s so ; and cons~~uen t ly~ in the cam of personalty devised to the heir-at-law, it

cannot be treated as an intestacy. Yet the ar~uinent for the1 appellant tannot be

maintained unless it is so treated.

There ar0 in tinis will two inteittions, which run together, and inust goverii the cow

fitruction of it,. A s to these, it is clear, first, that the real and personal e&ates acconi-

pany each o&er under the special devise& to thes Henyom, beiug blended together,

going under the same course; of ~ i m ~ ~ a t ~ ~ ~ ~ ~ ~ , and beinp intended to be enjoyed by one

and the sam0 person. If so, how is it possible to my that, when you have run down the

chain of limitations till you have arrived at the devise to the right heirs, the estate is

then to be severed, the ~nt#ntions of the testator disre~arded, the land b be given to the

heir-at-law, and the personalty to be d i s t r ~ b ~ i t ~ ~ Secondly7 it is

clear that the personalty has been ~bbso~utely converted by the directions of the mill.

The power to convert is not, as contended for by the other side, a simple d i s c r e ~ i o ~ i ~ r ~

power to the trustees ; but the will, i f all the parts are taken together, shows that it was

imperative on the trustees to convert the personal into real estate ; and the direction

must be assumed to have been obeyed. The testator expressly says, “ I give and devise,

after my just debts and funeral expenses and legacies are paid (vhich I order b be

paid E5391 out of my personal estate),”-thereby showing that he intended completely

to dispose of his personal wtak, ‘‘ all my eetates in the funds of England, and all my

said manorn, or reputed manors. both freehold, leasehold, and copyhold, and what%

other kind and nature soever,” to Edward Benym, who b as to be the first of the famiiv

which the ibtator desired to found.

This mode of devise shows that the testator, however he might mistake talinical

terns. did most positively intend that his ‘( estates in the funds? and his nianors and

21 2

All these cases p r o w d on one principle, though it led to v ~ r y i ~ ~ results.

I cannot be so.

DE: B~~~~~~~ ‘U, DE ~ ~ A ~ V ~ ~ ~ [lssz] 111 II.LC. 64Q

f r ~ ~ i o ~ d estatee, should go together. The order ixi a s u ~ e q ~ ~ e ~ ~ t part oE the will to

sell stock, iu order to pay debts, Y c w merely made for the purpose of enabling the axecu-

tow e ~ ~ t u a l l y ta do what ha ~ s s u ~ i ~ e d to have hen done when he made the devise which

has just been read. After the debtg had been paid, he t ~ e a ~ the ‘‘ estates in %e

funds ’’ and tke ‘‘ estates in freeho~d$ ” tbs s y i ~ o n y n ~ ~ u s terms. In the power to sell

end invest, nu d ~ s c r e t ~ o i ~ is giwm to the t r u s ~ e e ~ ; they are abso~ut~ly to sell. twd if

they had any discretion, it is merely a8 t t 3 the mode of hying out the money, a8 to

which alone they are to have the consent of the person in poss~sion. The p e ~ o i ~ a l

estate was in this way given with the real estate, and was, when i ~ v ~ s t e d , to be subject

to the same rules for e r ~ j o y i ~ ~ e ~ ~ t ~ Devised in this ~ ~ ~ a n ~ e r , the ~ ~ s s o n u l estate iu,

*hether actua~iy ~ o ~ ~ v e r t e d or not, to be ~ o ~ ~ s ~ d ~ ~ ~ as Isrid. ~ e e ~ ~ ~ z ~ ~ e v. Zwd car-

sle (3 P. ~ i ~ i s . .2l1), Cowlep v, ~ ~ ~ ~ ~ ~ ~ ~ n ~ e (1 Dow. 861; see ~ ~ ~ ~ , ~ ~ ~ s ~ ~ v. Thr

~ d ~ Q ~ a ~ e - G e ~ ~ ~ ~ , 10 Clark and F. l), ~~~~o~ v. S~~~~~~~ (Arnbler, 241, cited and 00n1-

mented on in ~~~~~F v. ~ a r ~ s ~ ~ ~ ~ ~ ~ .

[TIE Lord ~ ~ a n ~ l l o r . - ~ h e cas o€ C o w l e ~ v. ~ ~ ~ ~ ~ s - ~ 5 4 0 ~ - ~ ~ ? ~ ~ ~ was a case of an

actual trust, witb ail election as to the mode of p e ~ o ~ ~ ~ ~ ~ ~ it.]

In which respect the present case r ~ e i ~ ~ b l ~ it. The same quwtion was after-

wards consider^ in ~~~~~~~~~~ v. C o o ~ s ~ ~ ~ (12 Cfask and F. 121f, where these previous

d e ~ ~ s i o ~ s were fully discussed, thou^^ &at case i s rather ~ a l u a b ~ ~ for the ran&rks

made upon them than as d ~ r e G t ~ ~ &wing on the present. The 08se of ~ ~ ~ ~ ~ t s ~ ~ v.

~ ~ ~ e ~ ~ ~ ~ p (4 Ilare, 487) is a disk-inct ~uthority to show that the mere dirwtioit to h w c

the consent of any parties to the co~vers~on would not affect the d ~ ~ ~ ~ t , i o n to ~ n a k s it,

for which ~ e c ~ ~ e r ~ v. Lord ~ ~ r ~ ~ s ~ ~ was relied 0x1.

The ease of ~ o ~ ~ o u ~ ~ ~ v. o ~ o ~ ~ ~ ~ (5 Yes. 399) ~ ~ ~ k ~ ~ ~ t be ~ u p p u ~ d to tlie esteat of

d e c ~ a r i n ~ that where p ~ ~ o n a ~ p r ~ ~ e ~ ~ y is given to “ heirs9’’ the word, ‘‘ though it has U

definite seiise as %o s e d estate> must mean such person as the law points out to succeed

to the personal p r o p e ~ y Y and the kx%sntYi Judge ~jKnself i i ~ v a ~ i d a t ~ s the a u t ~ ~ o r ~ t y of

this observation by previous~y sayirig, ‘‘ I am very glad that that releases me from the

iiecessjsitg of si ating what is meant by the words ‘ heirs at law.’ ?’ Beiides, there the

personal property, under cestaiii e ~ ~ c u i ~ i s t a r ~ ~ ~ , was to revert tu the pesmnti.1 mtate

of the testator. and to go on us if it had never been taken fronl i t That case, there-

fore> c a ~ ~ n o t be taken as 8 guide; hese, Tlie ease. of ~ v ~ ~ s v. Salt (6 Beav. 266) wiis

not well considered : 110 argurnent appears to lmve taken place. Now &em are the

that give any s e n ~ ~ l ~ ~ i c s of aut~ori ty for the: ~ 3 r o ~ ~ i t ~ o ~ i ~unteIided for

by the appellant, her^ the case of ~ ~ ~ n ? ~ ~ v. ~~~~~~~~~ (14 Ves. 48s) i s e ~ t i ~ l ~

opposed to that pru~osit~oR, and i s in its c ~ r c u ~ ~ ~ s t a i ~ c e s precisely sinii1a.r to this ea^

There E6411 Sir W, Grant decided on the intention of the testator ; and unless there is

tiny dis t , inct~#~ batvl-eerk the ‘’ nighest heir-tit-law ” m d “ right, heirs,” tliibt decision

ought to be held to govern the pramiit. se^ v. ~ ~ ~ ~ ~ 7 ~ r ~ (4 Rusa. 354) i s t,o the

s:me effect, stid yet, if the r e ~ ~ o I k ~ 1 ~ ~ on the other side is come& there WSM an in-

t ~ s t ~ c y in that case to the a ~ n o u ~ ~ t c~f d4OQO. But to have held that to be so wmdd

have bwn to de€eat~ the inte~it~on f the testator.

The ~ ~ r o ~ ~ o s i t i o ~ ~ that the word ‘ I heir,” in a. gift o f ~ ~ ~ r s o ~ ~ ~ ~ ~ r o ~ e r t ~ y , must ~ e a i ~

the heir a c c ~ ~ d ~ n ~ tu the u ~ ~ i t y of he ~ ~ r o ~ e r t y , cannot be. s~ip~orted. A devise,

either of ~ a v e l ~ i I ~ d lan s, or of lands in borough English, to heirs, without rnose, will

cttrsy those lands to the heir-atcl~w. Pine128 ~ ~ r ~ d ~ i ~ i e n t (tit. I-feir, G. 5, pl. I, pi. 8).

There is likewise 8 passage in ~ ~ ~ e p ~ a r d ’ ~ o u c ~ ~ s t o ~ ~ e (446), which i s ii distinct autho-

rity to show that peixo~a1 ~ r o p e r t ~ ~ nlay be given to the fiei~, and that ths n~turet of

the property will not deteniiine the person n-ho i s tu take by th& d~cr ip t~ ion , but. tbhat

the very heir, the per so^ who fuEls the d ~ ~ ~ r i ~ t i o ~ i given by the words u s 4 by the

testator, will take, though without such words it Tvould have gone tu the next of kin,

Thus, in 31miwty v. ~ l ( i r ~ ~ ~ ~ e (La Russ. 384), where ~ e r s o n a ~ r I . o p ~ r ~ ~ was given, the

tlnture of the ~ ~ ~ ~ p e r ~ y did not d0te~7ine tlio person who wm to take, nur did it in

~~~~~~~~~~ v. ~ 3 ~ f ~ ~ ~ ~ ~ ~ (1 P. ~ 1 ~ ~ ~ . 7-18). In t,he latter case? as in ~ n ~ f ~ - ~ v. Xord ~~~ ~~-

&m, (I %rem. 35). the I ~ r o I ~ e r t ~ was personul, and yet the heir, and not the e ~ ~ c ~ t o ~ .

\$-ZLS decregd t t t tukc heir ’’ nmy be used, with referenm tu the

Rtrecession to ~ r o p e r t ~ , so as tcr &ow that h e i r ~ a ~ l ~ ~ ~ no% inteiided ; and where

it is so, the 1tropert.y vill go to the peixon ~ Z O Itas clearly ~ i ~ ~ n d e d by the

testator, whetlies 110 is tcchnieally [542] heir or not. The decision in Ir,,, v. ~ ~ r ~ ~ ~ ~ ~ ~ , ~

Of course the vi-ord

21 3

I11 H.L.C., 543 DE BEAUVOIR ‘U. DE BEAUVOIR [1852]

so?% (1 Jac. and W. 388, 11.) and ~ ~ ~ t ~ ~ g s 17. ‘ ~ ~ c ~ e ~ ~ o t t (2 Myl. and K. 69) rnay be

explained on that principle. But that argument as to the possible use of a particular

word, doar not aid the appellant. Pyot v. Pyot (1 Yes. 335) was a case of mixed pro-

perty, and there the intention of the testator was what the Lord Chancellor acted on,

the word *‘ relations ” receiving a construction which, in the opinion of the Chancellor,

best affectuated that intention. ~~e~~~~~ v. ,4shtnn (SO Law J. 53) is the most recent

case on the subject, and tilere, on a devise of real and personal estate to the trustees,

on trust f o r a life estate t o A., and should he leave lawful issue, to his children, share

and share alike, and should he die -vcithout lawful issue, to the) heir-at-law of the

testator’s f arnily then living, whosoever the same might be, VicsChanaellor Knight

Bruce held that the next of kin had no interest whatever in the gift.

The intention of the testator must regulate the application of the fund, if that in-

tention can be ascertained. Nere it is plain that the intention was, that the realty and

personalty should go togettier j and that being so, the words ‘‘ right heirs ” mmt

receive their strict legal constructi~n.

Mr. Rolt, in reply.-It has bem assumed, t~Iroughout the argument on the other

side, that the word ‘‘ heir ” has a fixed meaning. even when applied to personal estate.

That is not so ; it has a meaning depending on the property to be given, unless other-

wise explained. The testator nrade one mistake in the use of it in this will; and his

real intention is shown by his ab~~ndo1imeiit of an attempt @ secure a strict line of

heirship, if that of the Benyons should fail. It nemr was contended that the %tator

had died intestate with respect [543] to any part of his property, but that he had made

a gift vhich, under the circumstances that have arisen, produced Lhe same reeult as if

he had died intestate. Z’leydeU v. PIeytlell (1 P. Wnis. 748) does not bear on this case,

for the question there was, what was the ineariing in that will of “ dying without

issue,” and the time to which that phrase applied. If that case could be deemed a de-

cision on this point, then Gittbhgs v. XcDermott ( 2 Myl. and H. 69) cannot be recon-

cilcd with it. Tetloul Q. Ashton. (20 Law J. Ch. 53) is a case still under discussion, and

cannot therefore be treated as an authorjty; baidea which, the words there are very

different. In Doe d. ~ ‘ ~ ~ f f ~ ~ t e s v. Over (1 Taunt. 263-266~, a case before the Xaster of

the RoIls in 1732 is cited, and i s thus represented : ‘‘ Vnder a limitation to the family

of J. S., the real estates descend to the heir-ablaw : the personal estate goes to the nest

of kin.” It is said that “ the decree of thatz day, upon search, has not h n found.”

d recent search h w been more successful, and this is the entry, which certainly does

not support the rep~esentation there made of the case : ‘‘ cUR.-Let the defendants

flocers and Burgess come to an account before Mr. Burrouchs for the personal eetutate

of Saml, Fitzall come to their or either of their hands, or to the hands of any other

person for their or either of their own use : And do declare that one moiety of the clear

estate, after payment of thc debts and legacies and funeral expenses of Saml. Fitsall,

is to be conqidered as part of the personal estate of Eliz. Fitzall, and that the other

moiety doth belong to defendant Richard Fitzall of Bristol in his own right and as

executor of his brother 13ugh Fitzall, and the defendants Rngers and Burresse to pay

the same over to him accordingly; and 8s to the real estate of Saml. Fitzall, alii

opinion (pie) that the wife became entitled thereto by [544] the exprem words of the

will in fee simple.” That case, therefore, does not support the argument for which it

v a s there cited : but it vcould Im an authcwity to show thatr under a general devise of

that sort, the real estate may go to one party. and the personal estate to another.

As to the conversion, that was not imposed on the truskes as a duty, nor e ~ e n as a

thing depending on their discretion, but was a mere power given to them, &odd those

in possession desire it. Cowley v. ~ ~ r ~ s t o ~ g e (1 Dow. 361) is not in point ; for ihere

the person was in powsecssion ; but Edward Benyon was not. Some of the personal

property here remains unconverted. Rut1 suppose the whole of i t had been con-

verted. the conversion could only have been f o r certain purposes; and it would remain

subject to the contingency of the failure of the persons to whom it wa8 first given for

those purposes; and on such failure would go to the testator’# ‘‘ right heirs,” who in

wch a case must be those to whom the law would give his personal property. The

Courts cannot alter nor extend the purposes for which the conversion was ordered to

he made.

The I’ord Chancellor.--My Lords, the property a t stake in this ease i s of so large

21 4

DE ~ ~ A U ~ O ~ ~ b. DE EA^^^^^^ [1852] 111 W.L.C.,

an amount, that if I could enter t~in any doubt upan the question of law which is now

to be decided, I should eertaainly ~ ~ o ~ m e n d your Lordships to udjourn &e further

cons~deration of the case, in order ta give time to consider it. The CSS0 has been re-

markably well argued at the bar, both upon a u t h o ~ i ~ and upon principle,; and Lhe

party who fails will have the sat~sfact~on of knowing that n o ~ i i ~ g has weaped tbe

attention, zeal, rwtd knowledge of the learxied counsel a t the bar in adTr~ating his

i ~ ~ t e r e s ~ .

The question before your Lordships must be d ~ i d ~ , [5&] firs% upon the ~ntention

of the testator as it may be collected upon the face of the will, without reiferenc~ to any

rule of law ; tmd then we must apply the rules of law to the intention thus collected, in

order to see w ~ ~ e ~ e r we am at liberty, accord~ng to tire p r i~~c~p les of law, to carry that

intention into eEwt.

With mspect, to the ~n ten~ ion f the ~ t a t o ~ , taking the whole will ~ o ~ e t ~ e r ~ I think

it ~ ~ p o ~ i b l e to ~ n b r t a ~ n a y reasonable doubt. I t is u n d o ~ b ~ ~ y i3, singular will.

It is written by the testator himself. Not being a lavcyer, he confounded the ~ e a n ~ n ~ s

which the l aw attaches to certain xords. We does not dispose regularly, and by apt

words, of 41 his property; and yets when we refer to the various l ~ n ~ i ~ t i o n ~ which he

introduc~,-~iniitations i * ~ u i r ~ n g the utn~ost sccuracy in -pint of law, there is not 8

single fault to be found with the strict correctnees of expression a p p l ~ c a ~ ~ ~ to each. I

should suppose that be had had a previous will mada for him, or had some precedent

before him wh~ch he copied, but which did not ~iappen exactly t.o rit his purpose.

.Them has baen much contmtion a t thai bar ax to the ~ n t e n t i o ~ r meinning of the

testator in certain words which he had used. In the first place3 there is a d ~ s ~ o s ~ t i o n ,

upon the face of the will, of a certain sum of 4 per cent. stock; and he gives that,

a fb r certain ~ n t e r e s ~ s ~ to trustem ‘‘ and their JwGs,”” upon c e ~ a ~ ~ trust@, ~ r ~ n g the

l i f e of a lady. It i s said, that the t ~ s t a ~ r

niust have known the cons~uence of law a~taching to the use of the; word “heirs;”

and that, therefore, when he used it, he meant those vho would t&a personal ~~roperty,

which this was, in succession. But that assumes what I think we have no right to

rem0 to the rest of the will. It i s perfectly clear &at that ~ ~ i ~ ~ ~ t a t i o n

‘‘ and their heirs,”’ would carry the stock in question to their personal

mal r e p ~ s ~ n t a t i T ~ . But i t i s not so

clear that tho testator did not use those words fmni his insu~cien t ~ n o ~ ~ ~ e d ~ e of the

law+ The persons to n~hoin the property passed under this ~ ~ p ~ ~ s ~ o ~ i would take i t

equally as trustees or executors. rhoe ever took it, would take i t in the same character,

and i~~~~~~ with the same trusts ; and I think the rest of the will sliows that this

testator sup~(~sed that he could dispose of that p r o ~ ~ ~ y to tba heirs of the persons

named j and so no doubt he could, if he had used apt words for the purpose. There

would have been no d i ~ ~ ~ ~ t ~ in substit~utin~, as ~ a ~ ~ d ~ the! pe~sona~ estab., the real

heirs of the trustees. order of

miccessssion ~ ~ 0 ~ ~ 1 ~ have been broken, and the p e ~ s o n ~ to be tru delat& of

those who were named would be, not their personal, but, their r ives.

There are some words in the devise of all his estates which have not been much

~~dTerted to at t~he bar, but. which appear to me to be entitled te some w e ~ ~ h ~ . In

itiaking a general disposition of that property, which is exceedin4 large, he gives

* I all nly estates in t.hs funds of ~ng land , and all ixy said ~ ~ a n o r ~ ~ t c . [His Lord-

ship read the words of the will] (am% p. 525). Now the expression, ‘* all. my estates

irt. the funds of ~ n ~ l a n d ~ is a singular one.

even in d i ~ p o s ~ n ~ of those funds he was d i s p ~ ~ n g of s o ~ ~ ~ e t h ~ n g which was e q u ~ v a l ~ ~ ~

to what i s t~clin~cally termed estate ; ‘‘ niy estates,” not his ~nterest, but h i s estates

in the funds of ~ n g l a n d ;” and how is that followed up 2 Ne disposes of the estates

in the funds of ~ n g ~ a n d along with all his [547J real est

enrtrrzerRted,--e~~~ d e ~ c ~ ~ p t ~ o n of property being aiumm

uses, and in the strict& s e t t ~ ~ e n ~ in w ~ ~ c ~ i any property c

by the most accurate and consurnmate lawyer. No lawyer can deny, after r e a d ~ n ~

the words of this will, that the t ~ s t a ~ o ~ , having large sums in t.he Funds, treated them

its estate,-as real property, to go in succession to the tenants for life, with strict re-

niainder to their issue in tail male suc~essively. Now we know that his d i s p o s ~ t ~ o ~

Tvouid have been d i ~ ~ ~ p o ~ n t e d , because the law does not permit such l i~ i ta t ions

of personal estate. The first person who became the ienant in tail would have taken

215

Now this has been argued in both ways.

!!%at r ~ ~ ~ r ~ no a r ~ ~ ~ e n ~

It only required apt. xords to e%xt that

It shows that the testator ~ ~ ~ e i r e ~

1x1 E.L.C., 548 DE U E A U ~ ~ O I R 8. DE BEAUVOIR jl8523

the property. That was not his i n ~ n t i o n ; that would have h e n against his iri-

tention ; but the law would have been too strong for him. But that has 110 effpt upoli

the operation of the will, when we are asking what his iiteaning was. His intention,

even as respects his funded property, was, that the soiis of sons should taka 1 in . succes-

sion as tenants in tail inale, one after the other, so as to exhaust the whole male

line. Each person was to take the wliole property as real estate; and i t i s perfectly

nianifest that he did not know7 the difference. Then, at the close of all, conies that

limitation which has been so niuch observed on, and upon what the case turns. In

default of issue of the last person,--issue male, i t will be recollected,--he says, “ I

give and devise the same ;” that is, the whole property of both sorts, “ t o iiiy own

riglit heirs for lAfL”

At the end o f this will there i s a power wliich has properly h e n conimented on

at your Lordships’ bar. It is the power to the trustees, “ with the consent of the

person who may be in pmsession and entitled to the profit thereof,” to invest the

residue and surplus of the personal estate in the purchase of freeholde in England,

and to convey tlie Same [5&] to such uses, etc., as had k n declared concern in^ his

nianors devised by his will, as sliould be “ then existing, unde te~ ined , o r capable of

takirig effect, and for no other use or purpose whatsoever.” Now on the one side it has

been contended that this is an absolute power which must be exercised, and that the

effect i s at once to convert the personal property into real property, to impress that

property with a real character, and to dedicate it to those uses t5 which tlie real

property is dedicated, so that upon that alone tlie case iiiust be decided ; an ~rgui i~ent

which, if well founded, would put a11 errd to the case of the appellant.

I think no authority has been cited, and

I am not aware of ariy authority which carries a power of this sort to that extent.

Cou4ey v. Hai-tstoizge [I Dow. P.C. 3611, and tlie other cases which have been alluded

to, ceitainly do not authorize your Lordships to say that this was an absolute con-

version. There was, in point of

fact, a power, or it may rather be called 5 trust, to invest the property either in real

estate or upon personal security. This Rouse did

not sag that the trustees could not lixre exercised, but they xzever did exercise tlie

discretion thus reposed in them : arid therefore it was held that this House, sitting

t is a Court of Equity, would wercise the discretion which they had failed to exercise,

nnd that as the whole course of liinitatioii showed thnt the property was intended to

go in the way in which the real estate should go, the discretion iiiuet be considered

as restriited, arid the power must be exercised in directing the property to go accord-

ing to that destination. So far that case is, no doubt, iui important authority bear-

ing upon this question: but I aiir not prepared to advise your Lordships to decide

that the power here is an absolute conversion.

[549] But then it is said on tlio other side, that even if that power had been

eserciqed, considering it as a pover which it was not absolutely imperative to exer-

cise, the estates which had been purchased with the funded property would still have

gone according to the construction of the will contended for by the appellant, namely,

to the nest of kin. The Iearned counsel seems, when addressing to your L o r d ~ h i p ~

that a r~u~i ien t , to have lost siglit for U motnent of the words of the poner. It i s int-

possible to read this power without seeing that the uses wliich are referred to itre

the uses of the real eatate, and not the uses of the funded property, and as the funded

property was itself to be eyhausted in the very purchases which are supposed to have

been made, it was no longer necessary to consider the uses of that property; but, iii

ethe state of things which we aro now supposing, naiirely, that, there liad been an

exercise of the power, the property would be conrerted into real estate, and the real

estate ib , by the express directioii of this part of the will, to go to the same uses as

his “ reputed manors, lands, bereditaiiientr,” and so on, ending with the word “ pre-

mises.” The word “premises” at the end caiinot vary the true construction, if he

liad already disposed of the whle funded property and converted it into real estate.

I am clearly of opinion, therefore. upon that portion of the will, that if the power hi1d

been eiercised, the property would liave beconie real estate, and wcdd have de-

scended with the rest of the real estate to the heir-at-law.

Now, your Lardships have heard a very ingenious a ~ g u ~ ~ i e n t on the part of

appellant, in order to persuade you to stop nt the fast limitation to the issue male

216

That is a view in wliicli I do not coucur.

Take that very case wvhich was before this Rouse.

Tlte trust never was exercised.

m ~ ~ A u y o I ~ U . DE ~ ~ A u ~ o ~ ~ c185z-j fIX alko.,660

of the t e x ~ a i ~ t ~ for life, and to consider, not, as was ~ m p u ~ d to the learned counsel,

that there was no disposit~on on the face of the will, but to consider the actual dis-

position which is upon the face [560] of the will as amount~ng to this : " Xy prope~y,

real and p e ~ o n a l , when those several tin% have failed for whioh I have thus par-

ticularly prot.~ded, shall go in succession a c ~ r d i ~ g to law, that is, the real portion

of it shall descend t;o the he~r-a~€aw, and the p e r ~ n a l portion shall go to. the next

of kin." In order to ~ a ~ n t a i ~ * t propos~t~on, it was said that, w h e n ~ ~ e r there i s

an ingredient of descent, particularly in a case of this sort, it i s impossible that th0

law should not take this course. The

~ u e s t ~ o n i s simply this in every case, i s the ers son described, d e s c r ~ ~ d as '' ~ ~ ~ s u ~ ~

~ ~ ~ ~ g ~ u ~ ~ ~ or not? IJpm the failure of the branches here named, supposing s

descent of the real property to take place, it would of course go ta the person who

was then heir-a~~&w. He would take, no

doubt, by his better title, s u ~ ~ o s i n g even he had been i n ~ n d e d to take under the

will; but it would vwt in that person who, a t the death of the testator, was his beir-

at-law. It i s very true that, by the law of descent, the reversion would travel, aa it

were, till it was stopped by some act, so as to vest for the time being in the heir

of the ~ s ~ t o r ~ But that does not affect^ the question which we have now to consider.

That question is, Who i s the person to take9 Till you a ~ e r ~ a i ~ who that person is,

the onIy r e ~ a ~ i i ~ ~ ~ question is, Did this t e s t a ~ r , or not, mean that the same persons

who took the real estate should take the personal estate? It does not matter whether

he i s described as a right heir, or wh&her he belongs to the class of legal right heirs, if

he" is the person and the only person who can take, supp~sing the real and persona?

pro~er ty are to go together as a blended fund. The moment you ascer ta i~ &hat the

hejr-a~~aw, at the death of the tmtator, is the person entitled to the rea1 est&, you

~ ~ r t a ~ n a t the B B ~ B m o ~ e n t ~ a ~ u ~ i n g tha i n ~ n t i o n , tha% the same person i s to

[5@] take the personal estate as ~~~s~~ ~ ~ ~ ~ g ~ ~ a ~ There is no d i c u ~ t y , there for^^

in applying the rule, if gou a s ~ r t a i n the inten~~on.

The will dcah with the whole of the vast

funded p r o p e ~ y , which is called in this cam, a.nd with some propriety, i f its amount

only is considered, his " estabs in the Funds." It treats them as a great property,

as they a.re. The testator follows up t%hat i ~ ~ n ~ ~ a ~ l y by speaking of his " ~ a n o r s ,

~ e ~ u t e ~ ~ ~ a ~ o ~ ~ ~ in the usual txmns. Re then disposes of the r o p e ~ y , for life, to

c e ~ a ~ ~ persons in s u c c e ~ o n , to their sons, and the ~ ~ u e . ~ ~ l e of thaw sons, and so

on in succession, p r ~ v ~ d i n ~ for the male branch, and only for that branch. Do= he

make any dist~nction? Does he entertain E L K I ~ doubt that his estatos in the Funds

will go precisely in the same way us his real estates? I am not now asking how they

will go, but That he ~?~tended, as his i n ~ n ~ i o n appears upon the faw of the wiX1.

I can e n t e r t ~ ~ n no doubt that his i n t e n % ~ o ~ was that the p e ~ o n a l estate should go,

and his belief was that it would go, precisely in the same manner as his real estate

itself.

But then you come to the words, I' in d e ~ a u ~ ~ of issue ;1' when all them persons had

ceased to live for whom he had provided in this way. Re had not exhausted all the

branches. He bad neither provided for the d a u g h ~ r s of sons, nor had he provided

for %he sons of daughters. There were two of the branch=, therefolre, of those fav-

ourad ~ b ~ e c t s , still b be provided for. If you were to carry out this ultimate limita-

tion, would that; tend to any p r o v ~ ~ ~ o n f r t&eham? In the first place, i t would e n ~ ~ ~ e

the heir-at-~aw~ who was b i ~ s e ~ f one of the ~ ~ j ~ t ~ to make provision, as far as he

ought proper, for the p a ~ ~ e s for whom the t r himself had not, by ~ x p r e ~

words, prot.ided. I sce a c o ~ ~ t ~ n u i n ~ i n ~ n t i o n i ~sta tor ' s mind, Re describes

E5621 ultimately, as a class? his right heirs. H i s right heir was to be found among

the very persons for whom he before had made especial provision about the real

est&&. The p e r s o ~ a ~ &a& can only be take^ away i~ order not to carry the two

~ ~ c r ~ p t i o n s f property to the same persons. Is there any m q i ~ in the words

which shall compel your ~ o ~ d s ~ i ~ ~ ~ to say that the sam5 words shdX not have the

same construction, as applied to the intended object, when no contrary intention

is expressed?

It is said that the e%& of this ~ n s t r u c t i ~ ~ will be to give to the two words

twcr senses. It gives to &e right heir two descr~ptions o f

p r o p e ~ y , but in one sense. The fact that the ator's right; heir is to bke both

I am not aware of any authority for that.

~ o ~ d y can dispute that proposition.

Now let us look ibt the inbntion.

X t does no such thing.

217

IU H.L.C., 883 DE BEAUVOER D. DE BEAUVOIR L18.521

properties, involves no difference of sense at all. One class of this property he does

not take in the character of right heir, but, being the right heir, he takes it as a

gift under this will. It is perfectly clear that, i f the personal property is given to

him expressly, he wilt take it. The words are not used in two senses, but they are

used in one sense, to carry both properties according to the intention. When the

law, either by its own force, or in pursuance of the: intention of the testator, ix be

collected from the will, carries the property under those words t o the same person,

there are not two semes puts upcm the same words, but the right heir takes b t h pro-

perties; whereas only one of those properties would necessarily devolve upon him :

both would not, unless the testator had so expressly directed.

In the other view of the case, if you suppose the construction to f>e,--“ I mean

my property, after those ~imitations, to go in a state of succwion,”--there i s then

a division. It is one declaration, but i t involves a division of ths property, because

the succession would turn out to be, that the real estate would go to the heir, and the

personal estate to the person a1 representatives-

1[653f Upon the whole will, therefore, I cannot entertain any doubt && the in-

tention of the testator, if the law would allow that i n ~ n t i o n ta be carried into effect,

was tct make this a Mended property ; to give to i t the character of real estate, and,

as regards the disposition of it7 whether in the one character or the other, to give.it

to the same person in reversion, precisely as he had given i t tx, the same persons in

possession in the different limitations which he had introduced, and which were not

so properly applicable to i t as in the case of this gift of the reversion to the p e r s p

who filled the character of his right heir.

The power to invest the property, I consider, greatly aide this construction. I

do not construe, and I advise your Irordships not t o construe, the power to convert as

~ ~ m o ~ i n t i i ~ ~ to an absolute c o n v e ~ i ~ n . It is not necessary that we should do so;

but still, I consider the power, which is here made subject to the usual check of the

consent of the tenant for life, to be a clear indica-tion of the intention of the ~ s t a t o r

to treat these blended estates in the same manner as he has treated his real estates;

and it leaves no doubt upon my mind m to wha~t was the intention of this testahr.

Then the question arises, are we at liberty by law to give effect to that i ~ ~ n t i o n ~

I am not aware of a single case which militates against such a construction. No such

case has been cited. I have diligently attended to everything which has been quoted

at the bar, and I am sure nothing htas been omitted that could have been brought

forward; but I know of no case which forbids the ~ n s t ~ c t i o n for whioh the re-

spondent contends. All that the appellant has been able to do is, trr endeavour to

qualify the decisions, and to refer them to certain particular gmunds; but there is

no authority whatever for his contention. The authorities on the other side are

numerous; and though [554] they may be cavilled at and partly explained away,

yet in all (whether the gift is i ~ ~ ~ ~ i a t e or in remainder, whether i t i s of personal

estate or of a mixed fund of real and personal estate) the question simply is, whether

there is such a description on the face of the will a& amounb to a, ~~~~~~ per-

solane, and enables you to give to a person, net filling the character in which he would

be entitled to take it by law, the property which the te&ator has bequeated to him.

The cme which has been so often re-

ferred to, Buunsry v. Hamire (4.Russ. 384), was ts very siniple case. The testator

gives ” to my heir ” $4000. No doubt,

if that case had to be argued at the bar of your Lprdships, House, we should be told

that it could not mean the heir; iL was personal estate, and i t must be intended tx,

go to the executors. But there is nothing to prevent your giving to your heir, even

by that description, i f it‘ $u~ciently designates him as the party who is to take it,

any sum of money you think fit, or the whole of your personal estate. The Master of

the Rolls, who decided that casc, referred in a later case (Gittiags v. McDermott,

2 Myl. and K. 69) to his preyious decision, and said that he skill adhered to it. What

created a little difficulty in that case was, that there was coheirs ; but thati was held to

make no difference ; coheirs take under that single description of which shows

that the word ’‘ heir ” was not used in that restricted mnae in which giving to an

heir has been sometimes held to give a property by purchase.

If you refer to the other eases, relating to gift8 in remainder, the case in Shep-

pard’s T o u c l ~ s ~ n e (446), which i s the first case, i s quite decisive. That was a gift

Take those casea which refer to posseasion.

That i s in possession j that is immediate.

heir

213

DE ~ ~ A ~ V O ~ ~ 21. DE 3 ~ ~ A ~ ~ O ~ ~ [I8521 m BLC., 655

of a l e a s ~ ~ ~ ~ ] - h o l d estate in rema~nder to the heir of 3. S., after the death of J. S.,

to whom it waa first given. Now, in point of law, there can be no heir to personal

estate, which ~ e ~ s e h o ~ d est&+ i s ; and therefore> though the words would operate to

give it to the real repr~entative, still they muld not prmerve their strict lagal

i ~ e a n ~ n g . e ~ ~ e t ~ ~ e s forced a meaning to the word " heir '' w h ~ ~ l ~

does not p beIong ta ik; and e life estate, it was there held that the

heir and t-he executor of the heir should take it.

The case of Banuers o. Lord Clarendom (I Vern. 35) is precisely to the same

effwt, and waa decided on exactly the same principles, which indeed admit of no

doubt.

The case of ~~~~~~a~ v, ~~~~~~~~~~ (5 Yes. 3991, which i s entirely confhed to per-

sonal estate, i s entitled, certaiiily? to very great attent.~on, in eans~uence of the

high a u t ~ o r ~ t ~ of the kasned Judge by whom i t was decided; but I cannot help

thinking that Lord Alvanley did not give to the words of that will all the weight

which they deserved. I think, if they had been fully brought3 to his view, he would

not have e n t e ~ a ~ ~ e d th oubt which he expressed. In that case th8 directaion in the

will was, that the trustees were to pay 25000 to such child or children as his

daughter Kindes shou~d leave at the time of her decease, in such shares and pro-

portions as she should think proper to give the same; and in case she died leaving

no children, then the sum of $21000, part of the ~ 5 0 ~ 0 , in trust for the e s ~ c u t ~ r s ,

~~n i in i s t~a to ra , os assigns of his daughter Hindes, '' and as to %he &4000, residue

of the 25000, in trust for such person o r pemna a& shall be my heir or heirs-ablaw."

Now observe the different mode in which the &5000 are disposed of in remainder.

One thousand pounds are given in trust for the executors, a d ~ ~ n ~ s t r a t ~ r & , and

assigns of his daughter, in regular strict Words a ~ p ~ i c a b l ~ to We property; the

f656] other ~ 4 ~ 0 ~ in trust for such person or persons as should be his own heir or

~ ~ e i ~ a ~ ~ a ~ . The distiI~ct~on, therefore, whieh the fxstatm drew, shows in what

senses he used the different words, and I should have t h u g h t i t could have left no

doubt u p n the mind of the Court that the ~ ~ 0 0 ~ were to go to &e heir o r ~ e ~ ~ - a ~

law. Now i t i s singular, that althou~h Lord Alvanley was @ad to escape f

ciding that, yet the declaration was of no value in the decision of the case,

the same person ~ ~ a ~ p e n e d to fill both relations ; but it is of value as showi

h r d A l ~ ~ ~ ~ e ~ ' s real ~ p ~ n ~ o n was j for the d e c ~ a r a t ~ o ~ was that the heir-at-law, not

the next of kin, took it. Upon that^ ease, therefore, as fiar as i t goes, I think the

~ ~ ~ s e r v a t ~ o ~ ~ \vhich was made by Sir John Leach, in Faits v. Tem%p&r ( 2 Sim. 541),

is correct: '' The Court did not decide that ' heirs ' meant next of kin." That

case, therefore, as far as it goes, is consistent with the others.

The ease of ~ ~ e y ~ ~ l ~ Y. ~ y ~ e ~ ~ (1 P. %Vim. 148) i s precisely of the same nature.

Sir Joaeph JeIrylI o ~ ~ g i n ~ l l y d ~ i d e d that cme, When i t came before Lord

field, he did not say a word aga~nst We decisio~ itself, but merely observed

proper time had not arrived to a s ~ ~ a i n up to what period the heir-at-1

be living in order to take. Qf mume, therefore, that case is an authority the Same

way.

The only a u t h o r ~ t ~ I know of for the other view of the question i s B w m v. Salt

(6 Beav. 266). We have tdlI muoh respect for the nob€e Lord by whom &at cam w m

d ~ i d ~ . I will not enter into a ~ i ~ c u s s ~ o n upon it. It is a very short cme. It came

on upon p e t ~ t i ~ n , It* will not be ~ o n s ~ d e r ~ , and I think in f ~ i r n ~ s tcr the n&le Lord

~ i ~ s e ~ , it would not be right to consider it, as a case which i s to be put in ~ m ~ ~ ~ ~ t i o n

with others upon tbis ~ ~ p o r t ~ n t question.

@57] Then as regards those c a m which ham been referred to which were decided by

the noble Lord now present (Lord Brougham), when he held the Grelat Seal, no exception

can be taken to them. In ~~~~~~~~ v. M c ~ ~ ? ~ r n ~ ~ ~ ( 2 Myl, and E;. 69) there was a gift

over to prevent a lapse. The a r ~ ~ i ~ e ~ t was a very fair one, that as the prop~rty in

one case wodd haye go party a ~ o l u t ~ ~ , and from him to his personal repre-

~ e n ~ t i v e ~ , w, when the spoke there, by way of ~ u ~ s t ~ t u t ~ o n , of We heir of tbe

body, it waa understaod that he meant the same person who would have taken &er

him in Case there had been a lapse.

There was N. ca8e of Fu&e v. Ternpier (2 Sim. 52$), in which the gift being to T, P.,

or to his heirs, exmutors, a d i n ~ ~ ~ 5 t r ~ ~ ~ , and s i ~ s , mid T. P., dying in the

tmtator's lifetjme, it was held &at the b ~ u e s t was void for u n c ~ ~ ~ ~ i n t y . I can no^

23.9

111 B.L.C., 568 DS ~ ~ A ~ v o ~ ~ "U. DE BEAUVOIR [t852]

say th& I concur in that view, but it, is DO authority in favour of the appellant in this

case.

As far, therefore, as the a u ~ r , r i t i ~ go with respeet to personal estate, whether the

gift be an i ~ m e ~ ~ a t e gift, or whether it be a gift in remainder, the casas appear to me

to be uniform, to give to the words the sense which the testator himself has impressed

upon them,-that if he has given to the heir, though the heir would not by h w be the

person to take that ~roperty, he i s the person who takes as ers so^ ~ e ~ ~ ~ ~ ~ t ~ . It

is impossib~e to lay down any other rule of construction.

I quite agree that as to tbem the argument is

s t i l l stronger against the appellant, for if the law is settled when you can collect the

~ n ~ ~ ~ t i o ~ ~ , 8s regards personal estate, the a r ~ ~ i e n t that it i s so must, d ~ o r ~ ~ o r i , have

more operation when you come to blended property, c o ~ ~ s ~ s t ~ n ~ of real and persmal

estate; for as to 80 much of the property which consist8 of real estate there can [&j8l

be no doubt or q u ~ t ~ o n , but t.kat t,he person whu is described as '' heir I f i s ~ n ~ n d 0 d

to take in that character. You therefore at once, in speaking of " heir," impress upon

the gift, or upon him mho is to take it, his own proper char~ct~r,-.that of heir.

When you are dealing, therefore, wit*h the same disposition, though of another part of

the property, you are relieved from the d i ~ c u I t ~ which you labour under in the more

naked w e of personal property, and having found that the testator meant what he has

mpressed as regards that portion which i s real property, you may more readily infer

the same i n t e ~ t ~ o n as regards the other ~~~~n of the same gift d ~ p e n d ~ n ~ upim the

same words, and you thetmfore allow the whole disposition the same operation as you

would give to i t if i t had been confined to real estate alone.

There is

~ o t h ~ n g on the other side. En Sirmine v. to^ (15 Ves. 365) there i s a decision of

Lord Eldon ; but i t must be recollected that in that case them wm l ~ h o l d aa well as

freehold estate, and Lord EIdon there held that the heirs took as purchasers on account

of the m a n n ~ in which the pro~er ty was given. He says (15 Ves. 371) : " This is not

merely tb devise of freehold wtate, but a disposition of lea old, freehold, m d copy-

hold lands. There i s no doubt that the l0~sel~old wtate, in equityp would be taken by

thcm as purchasers." Re had no doubt, therefore, that where, by the intention, you

find that the heirs vere to take as purchasers of the ~ ~ e ~ ~ o l d , the freehofd estats would

go to them in like- manner.

Ea mother case befors the same learned Judges ~ ~ , ~ ~ , t P. A t k p s (17 Ves. 255 ; 19

Ves. 299 ; Coop. Ch. Cas. 1 l 1 ; X Turn. and Rum. 143 ; see also the Law of Real Property

as a d m ~ ~ ~ s t e ~ e d in the Bouse of Lords, 316 et seq.), he1 says that it i s vf3ry difficult tc

give a E5591 divided const,ruction. Your Lordships will recoI1wt~ th:& thnt was i>

devise of leaseholds, with freehold of inhesitance " to my family." Sir T.T7illia1n

Graat d e c ~ ~ s d that " ~~~~~~1~ " there ~ n e a ~ t the head of the f ~ ~ ~ ~ ~ y ; and thorefxe the

heir u l t i i ~ i ~ t ~ l y took the property as being the head of the family. Th*t deoision was

not s u ~ t a i n ~ in this Kouse, though it trw not absolutely reyersed. But ;feclarzltima

e in that case, which have always been taken not

giving La the person who was, made tenant in fee in the Grst instance, all the

rights of property during her life, whatever might be the d~ t ina t ion of tbe property

after her death. Lord EIdon says, '' I must know that fact, in order to determine

what, i f the subject is real estate only, designates the heir tat the death of the deyimr,

or such person as shall be heir at the death of the first taker', and what i s to be the

~ a n s ~ r u c t ~ o ~ of it as to a mixed fund, in the absence of all dec~sion, except &at tbs

same words we to be c o n s ~ u ~ d~fferent~y with reference to the different ata- an

intention which it 4s extremely difficult to attribute ta the testator." fa that, case,

therefore, which was a simple devise of all the property " tr, my family," Lord Eldsn

thought it was very difficult to collect a different intention, and to attribute to th0

twtator aa intent to give the real estate one way and the pemosnal m t a h another.

The case of Porster v. Sierru (4 YM. 766) has mme bearing upon the quwtion ; but

the gift ther0 was to the heirs on the p& of the mother ; that could not be, properly

spea~ing, a gift to the t e ~ ~ t o r ' s heirs. ~ a ~ r n a ~ heim would be excluded, a l th~ugh

heiw on the part a€ the mother had failed ; but that only shows that the words are

su~oient , which nobady can doubt, to show the sense in which you are to apply them.

This brings us to the case of Gwyttae Y. ~~~d~~~ (14 Vw. 488), which has been

very often ment~oned. The ~ t ~ t o r gave [&3Q] to h is daughter all his real and

Them we came to, the mixed cases.

The authorities here again are perfectly conclusive as far as they go.

220

DE B E ~ U ~ O ~ ~ 'F. DE E A ~ V ~ ~ R [I8521 rrI H.LC., NI

personal estate, goods, cattle, and 80 on, '' but not to d~min~sh , nor commit no wa

the lands ; and my nighast he i r "a~~aw to enjoy the same after her death." Eo

it was the I t ~ ~ ~ h ~ t he~r -a~ law ;"but still the person so d ~ i g n a t ~ was to enjoy the

px~perty a f b r the death of the daug~zter. It was rather s u ~ r ~ s ~ n g to find both sides

of the bar making use of the j u d ~ e n t of the ~ a s t ~ r of the Rolls. The j ~ d ~ e n t i

~ # ~ ~ ~ $ v. ~~~~0~~ i s very decisive as r ~ a r d s th is ~ u ~ t , ~ o n . i s ono^ says : " I

have not found any cam d i ~ ~ y applicab~e, but. them is no doubt the heir~at~law,

properly and technicai~y speak^^^, may take personal property b ~ u ~ a t ~ e d ko him

of kin and &e

n ~ e s s a r y fox the Court to say who shall enjoy both. It would be contrary to the

~ n ~ n t i o n to dioide them ; and it. would be c o n t ~ ~ to the words to give the whoIe to

ow that j u d ~ ~ t depe~~ds upon this; the ~ n ~ n t i ~ n crf the

c o ~ n o n fund, and not to divide the fund into two parts, those

d ~ ~ e r ~ t persons. I think it i s the same here. I have ready

s u b i ~ ~ t ~ to youx ~ ~ d ~ h ~ p ~ &at the true coz~struct~~n of this will i s that the pro-

perty should ull go together, and I see nothing whatever upon the face of i t to authorize

your ~ r d s h i p s to say that that inte~t,ion cease8 with the t e ~ ~ ~ n a t i o n of issue

znale, and that, then the ~ ~ ~ e ~ y i s to p, the r al estate in arm way an& the persona^

estate in another,

Sim. 327) would have been ~mpeached in point of law. would have been a very

fair line of a r ~ m e n t , beoause it was decided by the ge who decided this

oam, and UPOK~ the sanie pr inc~p~es ; and because the ~n ten t~on f this appeal was to

bring before the House the ~ u ~ t ~ o n of law as ing both that cam and the present,

But that. was not. done. It

appears to me that no two cams, upon pri , c m bcs more alike. ~~~~$~~ F.

~ a ~ ~ ~ ~ i ~ l ~ , in some respects, is not so strong a case as this. The bstator &ere gives

real estate to certain uses, in strict ~ ~ ~ e n ~ ~ t to right heim, and so on. He &en

gives persona1 estate to the same uses. But it; is said in the a r ~ ~ e n ~ not ~ e n ~ ~ n ~

the authority of the case, that already, by the force of the limitations, he has shown

that he means his right heir to take that property, and that he will take that propcrty ;

and that the inteni~ion being so$ you must evnstrue the gift of the personal e s ~ t ~ as

a gift to exactly the same person. But can them be sueh ;~b d i s t i ~ ~ t ~ o n as t ~ z ~ ~ , - t ~ a t

if that which is to be done, taking the tcva classes s e p ~ r a t ~ l y , will have t b o ~ e ~ a t ~ o n

which is c o n ~ n d ~ for and admitted there, i t will not have that effect where the two

prope~ies are blended tugether, as in this case? My opinion is, that the a r g u ~ e n t

for the d iv~s~on i s stronger in the case of ~ a ~ ~ d e ~ € v. ~ o € ~ g ~ ~ ~ ~ ~ ~ where there are

separate gifts, than if is ia &is cme, WVh6ZW there i s but one, and a ~ l % n d ~ giffi

The o~eration, therefore, of this gift of the tvo properties to the same perwns,

this property, accord~ng to the decision of the Courk below, in the person

filled the charseter of heir at the d e d i of the testator. I should t ~ ~ ~ r ~ f o ~ e

propose to your ~ r d s ~ ~ i p s , i f nzy noble and Ieamed friend, whose a ~ i ~ ~ i ~ c e the

&use has had on t h i s mcasion, should concur wit& me, that. this decision should be

iiffirmed.

Lord ~ r ~ u ~ h a m . - ~ y Lords, E entirely agree with my noble and learned f r ~ e n d ~

that there is no re~sonab~e doubt t o be e ~ ~ r ~ i ~ e d upon the cons~ru~tioR of this wiIX.

If we hed had :b dwbt, we should u n ~ u # t i o n ~ b ~ y have taken time to lwk into the case

more fully, for the purpose of removing any such doubt ; and we should also, in all

probabi~i t~, haye had reooume to the practice which, for u p w ~ r d ~ of twenty pears

pa&, has been pursue^ in your ~ o r d s ~ i p s ' Bouse, of giving our j ~ d ~ ~ ~ n t ~ in ~ r ~ t i n ~ .

But as there is no reasona~le doubt upon the present occasion, X agree with my noble

and learned friend, that we shall do well to proceed at once to a ~ r n ~ the ~ u d ~ e n ~ of

the Court below.

221

I confess I should a h w t have expected that the cas

It i s said that it i s er a d ~ ~ e r e n ~ , case from t*his.