1825.

GALLEY

V.

CASES IN HILARY TERM,

the heirs of their bodies; and in the limitation to the fourth

son, these words were omitted; but afterwards, when BARRINGTON. the devisor was directing what was to be done in conformity to his will, he took it for granted that an estate of inheritance was given to the fourth son; for he directed the sons of that fourth son to take his name and arms. And his Lordship further said, that the case before him was precisely similar to that of Denn d. Briddon v. Page(a), where the words were, (after a devise to S. Nash, son of T. and M. Nash, for life, remainder to trustees to preserve contingent remainders, remainder to the first and other sons of S. Nash, and the heirs male of his and their bodies respectively), "and for default of such issue, then to the use of all and every the daughter and daughters of the said T. Nash, on the body of the said M. his wife begotten and to be begotten, and for default of such issue, to the use of the right heirs of the said T. Nash for ever:"-the Court held, that sufficient did not appear on the face of the will to warrant them in saying, that an estate of inheritance was given to the daughter: that, if it were left to conjecture, they might suppose that some mistake had been made in the limitation; but they could not determine on conjecture, nor put that in the devisor's mouth which he had not said. In Doe d. Comberbach v. Perryn (b), where an estate was devised to B., the wife of A., for life, remainder to trustees to preserve contingent remainders, remainder to the children of A. and B. and their heirs for ever, to be divided among them equally, and if but one child, to such only child, and his or her heirs for ever, and for default of such issue, remainder over:-it was held, that the words "for default of such issue," meant, " for default of such children." Although in Evans v. Astley, Mr. Justice Wilmot said (c), that "for want of such issue, means for want of heirs male of the body, and that this is the true construction;" yet

(a) 3 Term Rep. 87, n. (b) 3 Term Rep. 484.

(c) 7 Burr. 1582.

1825.

GALLEY

บ.

there the reason of the case required it, as there was a long succession of devisees, and also an antecedent to which the word such might be applied. Besides, that was the case of BARRington. a will, and not of a deed, and therefore distinguishable from the present. So, in Doe d. Willis v. Martin (a), it was determined that the words, to the use of all and every the child or children of a marriage equally, share and share alike, if more than one, as tenants in common, and not as joint tenants, and if but one child, then to such only child, his or her heirs or assigns for ever, should be construed so as to create an estate in fee in all the children, the words, ' his or her heirs,' being allowed to operate as words of limitation on all the preceding words in the sentence. And although in Owen v. Smyth (b), it was held that a limitation in a deed, to the use of A. for life, with remainder to the first son of the body of A., lawfully issuing, and for default of such issue, to the second, third, and other sons of A., and of the several heirs male of the body and bodies of all and every such son and sons respectively issuing, gave an estate in tail male to the first son of A.: yet it was plain to demonstration, on the face of the feoffment, that it was the intent of the parties, that an estate tail should be limited to the eldest son. But the intent did not rest on the first expressions; as the other part of the deed, respecting the trusts and other limitations, referred to an estate tail in the first son of the settlor, as the limitation was to the several heirs male of the body and bodies of all and every such son and sons respectively issuing. Here, however, there is no limitation to the first son, so as to give him an estate tail, as the relatives they and their, viz. "in order and course as they shall be in seniority of age and priority of birth, and of the several heirs male of their several and respective bodies," can only relate to the second and other sons; and whatever implication may be raised in

(a) 4 Term Rep. 39.

(b) 2 H. Bl. 594.

1825.

GALLEY

v.

BARRINGTON.

a will, in favour of the intention of the testator, the Court will not give an estate tail, by implication, under a deed, as no latitude of construction, or conjecture as to intent, can be allowed in an instrument of the latter description, beyond the precise meaning which the particular words used in the limitation import.

Mr. Serjeant Peake, contra.-The case of Owen v. Smyth is expressly in point, and decisive of the present, and there can be no doubt but that it was the intention of the settlor that an estate tail should be limited to his eldest as well as his other sons, although by some slip or blunder the usual words are omitted; if the words, "and in default of issue," or "his heirs," had been added, all possible doubt would have been removed. It is a well known and established principle, that where the intent of the parties to a deed to uses, can be clearly collected from the deed itself, the instrument shall be so construed as to effectuate that intent. So, in deeds which are obscure, if the Court can see on the face of the whole of the instrument taken together, that the intention of the grantor or settlor is different from what it appears to be if part only be read, the Court will look at the four corners of the deed, and construe it accordingly; as in the case of a covenant for title, or quiet enjoyment, which, if taken per se, might be express against all persons and all acts, but which might be restrained by a subsequent covenant to the act of the party himself; and although it might be declared on as a general and unqualified covenant, and against the acts of all the world, yet if coupled with other restraining covenants, it must be confined to the acts of the covenantor alone; and here, enough appears on the face of the deed to inform the Court of the intention of the settlor. In Doe d. Willis v. Martin, where a question arose on a marriage settlement, the Court held, that the words "his or her heirs," might, considering the whole of the

1825.

GALLEY

v.

terms of the deed, and the manifest intention of the parties, act as words of limitation on all the preceding words in the sentence, and that by putting certain stops, or using BARRINGTON a parenthesis, they might be taken to apply to the heirs of all the children, although the words in the deed were "to the use of all and every the child or children, equally, share and share alike, to hold the same, if more than one, as tenants in common, and not as joint tenants, and if but one child, then to such only child, his or her heirs or assigns for ever;" and the Court construed these words thus, viz. "to the use of all and every the child or children equally, share and share alike, his or her heirs or assigns for ever." So here, it is quite clear, that the settlor intended that the estate should go in succession from his eldest son and his heirs male, to his second, third, and fourth, &c.: and in Hay v. The Earl of Coventry, Lord Kenyon said (a), that the rule adopted by Lord Hale in determining a question of this nature, was "noscitur a sociis;" and in Lady Dacre v. Doe in error (b), his Lordship again adopted that rule as applicable to the construction of wills: viz. that one clause or provision must be construed with reference to others which may be found in the same instrument, and from which a meaning may be given to the whole: and if the argument for the plaintiff in the construction of this deed were to prevail, if the settlor had no child living at the time of his death, but one were born the day after his decease, he would take an estate tail, whereas, if born in his life-time, such child would only take an estate for life. The words in the limitation being, "to the use of the second, third, and other sons, and the several heirs of their bodies, it may be difficult to say, that they refer to the first or eldest son; but the concluding words, viz. "the elder of such sons, and the heirs male of his body, being always preferred before the younger," are referrible to all

(a) 3 Term Rep. 87.

(6) 8 Term Rep. 116.

1825.

GALLEY

V.

BARRINGTON.

the sons; and although the word such generally refers to the last antecedent, yet it is not necessarily confined to it, and more particularly so, where the whole of the deed shews a contrary intent; and the case of Owen v. Smyth warrants this construction: and Lord Chief Justice Eyre there said, "that it was the intent of the parties, that an estate tail should be limited to the eldest son, and that no man could read the deed without seeing such intent, although, by some strange blunder, the usual words were omitted." That is directly applicable to the present case, for the word such, at the commencement of the clause, is wholly inconsistent with the other terms of the settlement, which was framed in precisely the same terms as that in Owen v. Smyth. In Evans v. Astley, there was a devise to the three sons of C. D. successively, in tail male, remainder to every son and sons of the said C. D., which should be begotten on the body of Sarah, his wife, and for want of such issue, to W. H. &c., with a proviso, that the devisees and their descendants should take the surname and arms of the testator; and it was resolved that the after-born sons took several estates in tail male in succession, as the words "for want of such issue," must be construed, for want of heirs male of the body, in order to effectuate the general intent of the devisor: and the ground of that decision was explained by Lord Kenyon, in Hay v. The Earl of Coventry. In Comyns's Digest (a), it is laid down, that "relative words are generally referred to the next antecedent, where the intent upon the whole deed does not appear to the contrary:" and if so, the word such is not, in all cases, to be confined to the last antecedent. As well, therefore, on the construction of the whole of the deed, as on the authority of Owen v. Smyth, the eldest son of John Galley took an estate of inheritance.

(a) Tit. Parols, (A 14).