1836. ment and the general uncontrolled dominion over the BARRYMORE Property; and, therefore, if we find her conveying the property by the deed of 1812, the grantee will take, notwithstanding the restrictions imposed on the power of disposition. v. ELLIS. His Honor then commented upon the other parts of the case, and concluded by stating that his opinion, both on the law and the facts, was that no case was made against the Defendants, and, consequently, that the Bill must be dismissed with costs. 1836: 16th March. Will. Construction. MACHELL v. WEEDING*. A TESTATOR devised certain freehold and copyhold estates and personal property to his wife, for life; and Testator devised then proceeded as follows: "And, at her decease, I give lands to his son and bequeath, to my son, Joseph Machell, all my copyJoseph, for life ; but if Joseph hold estates, lands, messuages and tenements situate should die with- within the parish of Malden aforesaid, with all the growleaving any chil- ing crops and live and dead stock thereon, the same to be enjoyed by him during his natural life: but if my son Joseph shall die without issue, not leaving any children, then my will and meaning is that the said copyhold estates, lands, messuages, and tenements shall be out issue, not dren, then he directed that the lands should Le sold and the proceeds di vided amongst his three other sons; and if any of them should die before Joseph, then that their shares should be divided amongst their children. Held that Joseph took an estate tail. * Ex Relatione. sold, and the money arising from such sale thereof, equally divided amongst my three other sons, viz. William Machell, James Machell and John Machell, share and share alike: and if any or either of my three sons last named shall happen to die before my said son Joseph, the respective share or shares of money arising from the sale of the above-named copyhold estates, shall be divided among their respective children, share and share alike." Joseph Machell, assuming himself to be tenant in tail of the copyhold estates, joined with his mother in suffering a recovery of them; and, afterwards, agreed to sell them to the Defendant. The purchaser having objected to complete his purchase, on the ground that Joseph took an estate for life only, the Bill was filed to compel a specific performance of the agreement: and the Master having reported in favour of the title, the Defendant excepted to the Report. Mr. Wigram and Mr. Garratt, in support of the The estate given to Joseph Machell is not given inde- 1836. MACHELL v. WEEDING. to have one child only, and that child were to die in the lifetime of Joseph leaving issue, would the gift over take effect?]-In that case the issue would be disinherited but that is the fault of the Testator, and not of the Court. Wyld v. Lewis (a), Robinson v. Robinson (b), Doe v. Webber (c), Doe v. Frost (d), Roe v. Jeffery (e), Pells v. Brown (f), Doe v. Davies (g), Mellish v. Mellish (h), Doe v. Wetton (i). At all events, the question is a doubtful one; and, therefore, the purchaser ought not to be compelled to take the title. Mr. Knight and Mr. Rogers appeared for the Plaintiff: But The Vice-Chancellor, without hearing them, said: The words: "die without issue, not leaving any children," may be taken either as marking out one event or two. Suppose they are to be taken as referring to two events; then they must be read thus: " die without issue and not leaving any children," and then it is perfectly manifest that the Testator did not mean that the estate should go over as long as any issue of the first taker should be in existence. But, if the words are to be considered as referring to one event only, they must, in that case, be taken to refer to the greater event, that is, the dying without issue. The not leaving any child, is only a certain mode of dying without leaving issue. (a) 1 Atk. 432. (b) 2 Vez. 225. (c) 1 Barn. & Ald. 713. (f) Cro. Jac. 590. Joseph might die without leaving children, but not without leaving issue: as, for instance, if he were to have an only child, and that child were to die in his lifetime leaving issue. I cannot but think that these words must be taken as descriptive of dying without issue: and I consider it to be a settled point, that, whether an estate be given in fee or for life, or generally, without any particular limit as to its duration, if it be followed by a devise over in case of the devisee dying without issue, the devisee will take an estate tail. Exception over-ruled. 1836. MACHELL υ. WEEDING. LLOYD v. LLOYD. 1836: 18th and 19th March. Construction. Marriage Articles. Covenants. Covenants in marriage articles, entered into by the fathers of By articles of agreement, dated the 22d of October 1777, made between Evan Lloyd, of the first part, Evan Lloyd, son of the said Evan Lloyd, of the second part, James Stephens and Mary his wife, of the third part, and George Harries and Sylvanus Lloyd of the fourth part After reciting that a marriage was intended to be solemnized between Evan Lloyd the younger and Esther Stephens, second daughter of the intended James Stephens, who was then an infant, and, for husband and wife, though securing a competent maintenance and provision for expressed to be Esther Stephens in case the marriage should take dependent, held, effect and she should survive Evan Lloyd the elder on behalf of the and Evan Lloyd the younger, and for the better prefer- riage, to be inment in the world of Evan Lloyd the younger, Evan dependent of Lloyd the elder had agreed, in case the marriage should take effect, to pay 200l. to Evan Lloyd the younger, upon the solemnization of the marriage, and also to issue of the mar each other. 1836. LLOYD υ. LLOYD. convey and settle the several messuages, tenements and lands thereinafter described, in the manner, to the uses, and upon the trusts thereinafter mentioned and that James Stephens and Mary his wife, in consideration of the intended marriage and for the better provision in the world of their daughter, had agreed to convey the moiety of the messuage, tenement and lands thereinafter described, in the manner, at the time, to the uses and upon the trusts thereinafter mentioned, and also to pay 100l. to Evan Lloyd the younger upon the solemnization of the marriage: It was agreed between the parties thereto, and Evan Lloyd the elder, for himself, his heirs, executors, administrators and assigns, covenanted with Evan Lloyd the younger, his heirs and assigns, on behalf of himself and Esther Stephens, his intended wife, and the issue of the marriage, that, in case the marriage should take effect and James Stephens and Mary his wife or the survivor of them should, as soon as Esther Stephens should attain her age of 21 years, at the costs and charges and upon the reasonable, request of Evan Lloyd the younger, or Esther Stephens, convey and assure the moiety of the messuage, tenement, and lards thereinafter described, to the uses thereinafter expressed concerning the same, that then Evan Lloyd the elder, his heirs and assigns, would, at the costs and charges, and upon the reasonable request of Evan Lloyd the younger, or Esther his intended wife, or their heirs, convey and assure unto George Harries and Sylvanus Lloyd and their heirs, the messuage, tenement and lands, called Tynypwlly, in the county of Carmarthen, and also the messuage, tenement and lands called Brynmawr, in the same county, To hold to George Harries and Sylvanus Lloyd, their heirs and assigns, to the use of Evan Lloyd the elder, his heirs and assigns, |