1842. GURLY v. GURLY. Beauchamp Bagnal, Esq., to be sold." The word interest in the second part of this sentence must be referred to the same word in the previous part of it, and clearly means a freehold interest. This he at that moment excepted out of his demise, and he never made any disposition afterwards which could directly or indirectly affect it. It therefore went to his heirat-law, Thomas Gurly the younger, the father of this Appellant. That by the words of the exception the testator did not mean to except his reversionary interest, which was a chattel interest, in the lands of Knockroe, is perfectly plain from the part of the will where the exception was introduced, and also from the subsequent part of the will, which does expressly refer to and dispose of that chattel interest. In the first place, an exception of a chattel interest out of a devise of freeholds would be inapplicable and absurd; while the exception of one particular freehold out of a general devise of freehold is intelligible and good. In the next place, the chattel interest is specifically disposed of in a different part of the will, and without the least reference being made to the previous exception, which would have been made if the two things had in the least degree been connected with each other. As to the other point which arises on the settlement made on Bagnal Gurly's marriage in 1793, Druce v. Denison (b), relied on in the Court below, is not in point. There the words were general, and were not restricted to the widow's right at common law: they are so restricted here. In Colleton v. Garth (c) it was held that a rent-charge expressed to be for a jointure, and in lieu of dower and thirds at common law, does not bar the jointress of her distributive share (b) 6 Ves. 385. (c) 6 Sim. 19. in the personal estate of her husband undisposed of by his will. That case is clearly in favour of the Appellant. But a still stronger case is that of Pickering v. Lord Stamford (d), which almost exactly resembles the present. There a testator gave his wife real and personal estate, "in bar, full satisfaction, and recompense of all dower or thirds which she could have or claim in, out of, or to all or any part of his real or personal estate." He gave the residue to four persons, and afterwards by a codicil directed them to dispose thereof in charities: part of the residue being vested in real securities, was held to go according to the statute as undisposed of, and that the widow was not barred of her share of this part. Lord Alvanley in that case observed, in accordance with the opinion of Lord Cowper in Sympson v. Hornby (e), that "where a testator has given to his wife a provision which he meant to be a satisfaction for any claim which she might have against the other objects of his bounty; if by any accident those objects should be unable to claim the benefit of that exclusion, no other person should set it up against the widow ;" and he there added, "personal representatives do not take as an heir-at-law, who is the person pointed out by the law, unless the testator, by devising, points out another." Slatter v. Slatter (f) is also in point. In that case the husband and wife having agreed to live apart from each other, a sum of money was invested in stock in the names of trustees; and by a separation; deed containing the usual provisions, the husband agreed to pay to his wife for her maintenance an annuity of 1807.; and it was declared that the stock was a security for the payment of that (f) 1 You. & Col. 28. (d) 3 Ves. 332. 492. 1842. GURLY V. GURLY. 1842. GURLY V. GURLY. annuity. The deed contained the usual proviso for indemnity to the husband against the debts of the wife, "and all dower and thirds at common law or by custom, which she at any time thereafter might claim, challenge, or demand from or out of, or against her husband, or his present or future estate real or personal;" and an agreement that the wife should make and execute all such acts, deeds, and matters as should be requisite for the purpose of releasing, barring, or extinguishing all dower or thirds at common law or by custom, which she could or might claim or demand in, to, or out of any real or personal estate of her husband. The husband afterwards dying intestate, it was held that the deed did not deprive the wife of her share of her husband's personal estate under the Statute of Distributions. [The Lord Chancellor :-There is not a word in Colleton v. Garth of the wife's settlement being in lieu of her claim upon the personal estate.]-That is so, but there is express mention of dower and of thirds at common law.-[Lord Cottenham :-What is the correct meaning of the expression "thirds of sonal estate at common law ?"]-It has no meaning: it does not correctly express the interest the widow would take under the Statute of Distributions; and this House will not give words a technical meaning which does not properly belong to them. per The Solicitor-general and Mr. Kindersley, for the Respondents:-The testator did not die intestate as to this property. What was the nature of the interest taken by him? There was a lease for three lives granted to Mr. St. Leger by Mr. Beauchamp Bagnal. All that now exists to prove the nature of this lease is a memorial of the registry of the deed. There are no deeds of lease and release, nor any deed of feoffment; so that it does not appear clearly how the freehold interest of Mr. St. Leger passed to Thomas Gurly. That person perhaps thought that he was holding this lease under St. Leger, and all other parties thought so at the same time. But his mistake, if mistake it was, will not alter the expressions in the will. He probably supposed the interest thus held to be of little value, and looked to the lease which was to commence at the expiration of the lives as the most if not the only valuable part of the property. But his meaning can hardly be mistaken, for he desires that all his freehold interests in the counties of Carlow and Wexford shall be sold; and then, knowing that Knockroe was in one of those counties, and not desiring that at that moment the estate for years should be sold, he mentioned it at once; but in order to show what interest he did mean to except, he expressly described it as held under Beauchamp Bagnal. That interest was a lease for years. The House will not in this instance give to the word "except" the meaning of an exception out of a devise, but will construe it as simply meaning "not including." There can be no doubt that he means the freeholds to pass by the first part of the will, and that his other interests in any of those estates should be reserved to be dealt with according to the directions given in the subsequent parts of the will. There being neither a feoffment nor a lease or release, a freehold interest might not perhaps pass by the assignment at law. But the assignment would operate in equity; and though after this agreement there might be an ejectment by Mr. St. Leger at law, yet in equity the tenant might come and get an injunction and decree for specific performance. How could that 1842. GURLY v. GURLY. 1842. GURLY v. GURLY. be directed, but upon a knowledge of the intention of the parties? But how could that intention be known? The agreement would be looked at, and then the terms of the demise, and then the rent to be paid.— [Lord Cottenham :-The first lease is for lives, not for a term determinable on lives.]—It is so.-[The Lord Chancellor (after reading the lease):-I think that this is a clear lease for lives. It does not say anything of a term of years. If so, it is clear that it passes under the general devise of the freehold.] Then as to the other point, that which regards the interest of Jemima Bernard, under her settlement in 1793: It is clear that it was intended by that settlement to give her something in bar of all claim she might have at common law, through her husband, against the estate of the testator, real or personal. The case of Pickering v. Lord Stamford (g) is not in point, for that was not the case of a settlement, but of a will, and it was expressly decided on that ground. Of course the consent or contract of the party to give up one advantage on obtaining another could not be set up in that case, as it can here. The Court below acted in this case upon the decision in Druce v. Denison (h), which has never been impeached, and which is directly in point. There a provision made by a marriage settlement, and expressed to be in lieu, bar, and satisfaction of all dower or thirds which the wife might otherwise be entitled to out of the real and personal estate of her husband, was held to bar her interest in what was not disposed of by his will. That was, unlike the present, a case of a settlement; the intention of the parties was the same, and that intention was held to have been fully carried into effect. It was here intended to give the (9) 3 Ves. 332. 492. (h) 6 Ves. 385. |