Hamilton v West

JurisdictionIreland
Judgment Date23 December 1846
Date23 December 1846
CourtRolls Court (Ireland)

Rolls.

HAMILTON
and
WEST.

Jesson v. Wright 2 Bligh, O. S. I.

Crozier v. Crozier 3 Dru. & War. 373.

Phelp v. Hay 2 Sugd. on Pow. App. 15.

Merest v. HodgsonENR 9 Price, 556.

Shaw v. Weigh 2 Stra. 798.

Phelp v. Hay; Doe d. Dodson v. Grew 2 Wls. 322.

Frank v. StovinENR 3 EAst, 544.

The King v. BurchellENRAmb. 359.

Denn d. Webb v. PuckeyUNK 5 Term Rep. 299.

Hayden v. WilsireUNK 3 Term Rep. 327.

Dalzell v. WalshENR 2 Sim. 319.

Davenport v. Hanbury 3 Ves. 259.

Fitzgerald v. Leslie 2 Jar. on Wills, 239.

Moss v. MossENR 1 Mer. 654.

Vanderplank v. KingENR 3 Hare, 1.

Stanley v. Leonard 1 Ed. 87.

Lanley v. Baldwin 1 Eq. Ca. Ab. 185.

Attorney-General v. Sutton 1 P. Ws. 754.

Wright v. Leigh 15 Ves. 564.

Jesson v. Wright 2 Bli P. C. l.

Gallini v. GalliniENR 3 Ad. & El. 340.

Franks v. Price 5 Biug. N. C. 37.

Blackborn v. EdgleyENR 1 P. Wms. 605.

Morse v. Lord OrmondeUNK 5 Mad. 99, 113.

Lanesborough v. Fox Ca. temp. Talb. 262.

Banks v. HolmeENR 1 Russ. 394, n.

Bristol v. Boothley 2 S. & So. 465.

Holden v. Howell 8 Ves. 87.

Lees v. Mosley 1 Yo. & Col. 606.

Doe v. PerrynENR 3 T. R. 484.

Hodgson v. MerestENR 9 Price, 556.

Roe v. Grew 2 Wils. 322.

Denn v. PuckeyENR 5 T. R. 299.

Blackborn v. EdgleyENR 1 P. Wms. 605.

Target v. GauntENR 1 P. Wms. 432.

Richardson v. JonesENR 3 Sim. 409.

Greenwood v. Rothnutt 5 Man. & Gr. 628; S. C. 6 Scott's N. R. 670.

Malcolm v. TaylorENR 2 Russ. & M. 416.

Graves v. HicksENRENRENR 5 Ad. & El. 38; S. C. 8 Bing. 475; S. C. 11 Sim. 549.

Ellicombe v. GormpertzENR 3 My. & Cr. 157.

Cooper v. CollesENR 4 T. R. 299.

Ellis v. SelbyENR 7 Sim. 262.

Cursham v. NewlandENR 2 Bing. N. C. 58.

Ridgeway v. Munketterick 1 Dr. & War. 92.

Doe d. Gallini v. Gallini 5 B. & Adol. 621; S. C. 4 N. & M. 893.

Roe v. Grew 2 Wil. 322.

Hodgson v. MerestENR 9 Price, 556.

Denn v. PuckeyENR 5 T. R. 299.

Langley v. BaldwinENR 1 P. Wms. 759.

Attorney-General v. SuttonENR 1 P. Wms. 754.

Graves v. HicksENRENR 5 Ad. & El. 38; S. C. 11 Sim. 548.

Blackborn v. EdgleyENR 1 P. Wms. 606.

Sunday's case 9 Co. 127, b.

Morse v. Lord OrmondeENR 1 Russ. 404.

Ellicombe v. GompertzENR 3 My. & Cr. 151, 154.

Horton v. Whittaker 2 Bro. Ch. C. 88.

CASES IN EQUITY. 75 the right had been shown since the original reservation in 1724. 1846. Considering these authorities, I think I am bound to allow the Rolls. exception. It has been also pressed that as these premises have been . LARKIN demised to a tenant for nine hundred years, there is little or no pro- V bability that the tenant will permit those regulations or covenants to LORD ROSSE. be broken ; but I do not think this makes any difference in the case. Judgment. Upon the whole, I am of opinion that the purchaser cannot be compelled to accept a title where the enjoyment of the estate is subject to such qualifications; arta I must therefore allow the exceptions. HAMILTON v. WEST. Nov.12, 13. Dec. 23. JoirN TASTER being seised of the manor and lands of Athleague, by his A being seised in fee, devised will, made the 7th day of January 1753, devised them to his mother one moiety of Lady Mayo for life, and after her death, as to one moiety (which was his estate to his sister M. for the subject of the present suit), to his sister Margaret for life, with life, remainder remainder to trustees to support contingent remainders, with remain- to her first and other sons in tail male, and for want of such issue, remainder to her issue female and the heirs of their bodies, with power to M. to charge 1000 for younger children, and for want of such issue, remainder to his sister J. for life, with precisely similar remainders to her issue. The other moiety was limited to J. for her life and to her issue, and then to M. and' her issue in precisely the same way as the first moiety, and for want of issue of M. and J. the whole to L. for life, with remainders over. By codicil; reciting the marriage of M. with D., he devised one moiety to M. for life, remainder to the issue of M. successively and the heirs of their bodies " as in said will limited, and for default of such issue" to D. for life, with remainder over as in said will limited. The codicil contained the following clause " I ratify my will with respect to my real estate in every particular not hereby altered ; the only alteration I intend hereby is, that if my sister Margaret should die without issue or failing, issue, that the said D. her husband, or any other husband she may have, should hold a moiety of my estate during his life." At. after the death of D. suffered a recovery to the use of herself, her heirs and assigns for ever. Held, that under the limitations in the will M. took only an estate for her life, and that she did not take an estate tail female, after the estate in tail male to her first and other sons, Held also, -that from the words "in default of such issue to D.," &c., in the codicil, there was no ground for implying an estate tail in M., the word "such" being referential to the devise in the will to her sons in tail male and her daughters in tail genera]. Held also, that the devise in the codicil to D. or any future husband, if M. should die without issue or failing issue, was to take effect on the determination of the express limitations in the will to M.'s first and other sons in tail male, and to her daughters in tail general, and not on a general failure of M.'s issue, and that M. therefore did not take an estate tail by implication. 76 CASES IN EQUITY. der to the use of the first and other sons of Margaret in tail male ; and for want of such issue, remainder to the issue female of the said Margaret and the heirs of their bodies, with power to Margaret to charge the same with 1000, portions for her younger sons and daughters ; and for want of such issue he devised the remainder of the said moiety to his sister Jane for life, with remainders precisely similar to those limited upon Margaret's life estate; the other moiety was limited to Jane with precisely similar limitations to her issue and to Margaret and her issue ;* and after certain provisoes he deviÂÂsed the remainder of all his estates, for want of issue of his said sisters, to Thomas Lyster for life, with remainders over. By a codicil made the 1st day of November 1753, reciting the marriage of Margaret with William Dwyer, the testator, after the life estate of Lady Mayo, devised one moiety of his estates to Margaret for life, with remainder to trustees to preserve contingent remainders, with "remainder to the issue of the said Margaret successively, and the heirs of their bodies as in said will limited; and for default of such issue, to the said William Dwyer during his natural life, with remainder over as in said will limited :" and after devising the other moiety by reference to the will, proceeded :-" I ratify my will with respect to my real estate in every particular not hereby altered ; the only alteration therein I intend hereby is, that if my said sister Margaret should die without issue, or failing issue, that the said William her husband, or any other husband she may have, should hold a moiety of my said estate during his life." Lady Mayo died shortly after the testator. Jane Lyster married C. Kirwan, and had issue an only son, who died without male issue, and two daughters, Lisetta, who died without issue, and Elizabeth, who married Charles Hamilton, of which marriage the plaintiff was the eldest son. Margaret Lyster, after the death of William Dwyer, suffered a recovery of the said lands to the use of her and her heirs, and afterÂÂwards intermarried with James West Lyster. Margaret died in 1809, and James West Lyster died in 1846. The plaintiff being in possession of one moiety of the lands of Athleague, the defendant, upon the death of J. W. Lyster, entered into possession of his moiety, and the plaintiff filed the present bill against him, and claimed thereby to be entitled, under the limitaÂÂtions of the will, to that moiety also. To this bill the defendant pleaded that Margaret Lyster was seised in tail of one moiety of the lands of Athleague, under the will, and suffered a recovery of them in Easter Term 1802, being then a feme sole, to the use of herself, her heirs and assigns, for CASES IN EQUITY. 77 ever ; and that thereby the estates in remainder, limited to her 1846. sister Jane for life, and all other estates in remainder or expectancy B,olls. were barred, and the said Margaret became seised in fee. HAMILTON On this plea the cause now came on to be heard. V. WEST. Mr. Shaw and Mr. Monahan, in support of the plea. Argument. If the intention to include all the issue of Margaret be apparent, inasmuch as some, ex. gr., daughters of sons, could take only through her, the Court will imply an estate tail in her for the purpose : lesson v. Wright (a); Crozier v. Crozier (b). Although the limiÂÂtations of the will are revived by the codicil, the estates pass under the latter. The devise in it to Margaret for life, with remainder "to her issue successively and the heirs of Air bodies," coupled with the gift over in default of such issue, would clearly confer an estate tail on her, were it not for the words of reference, "as in my said will is limited :" Phelp v. Hay (c); Merest v. Hodgson (d). Under the limitations here referred to, the sons took estates tail as purchasers, with remainder to Margaret in tail. The words "issue female," notwithstanding the superadded words of inheritance, are words of limitation : Shaw v. Weigh (e); Phelp v. Hay ; Doe d. Dodson v. Grew (f) ; Frank v. Stovin (g); The Sing v. BurÂÂchell (h); Denn d. Webb v. Puckey (i). But, even if words of purchase, as such, are not confined to the first generation of descendants, Hayden v. Wilshire (k), Dalzell v. Walsh (1), DavenÂÂport v. Hanbury (m), the daughters of sons are included under the general denomination of issue female, Fitzgerald v. Leslie (n); and if not so confined to one generation, to effectuate the intention to include...

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