VI H.L.C., 61 GREY W.

PEARSON [18571
which preceded it. But I think that, considering that there has been a verdict against
the Appellant, i t will not be unreasonable to retain the Bank Annuities in Court with-
out prejudice, until the result of the new trial is ascertained.
It was said a t the bar that some of the witnesses had died since the tiial. If that
be so, the Court of Chancery may, of course, give the usual directions for reading, on
the new trial, the deposit,ions taken in the Court of Chancery. And if, on the appli-
oation oE either party, the Court should think any other spmid directions neeemsry,
as t o directing the trial to take place elsewhere than at Wexford, or as to the admis-
sion of the judges notes of evidence where the presence of any of the former witnesses
cannot be obtained, o r on any other subject, the Court below will be fully competent
to do justice on all such matters.
It only, therefore, remains for me to move your Lordships, in conformity with
what I have stated to be my opinion as t o what justice requires. And I shall, thers
fore, move your Lordships that the wder of the Lord Chancellor of Ireland refusing
the new t,rial, and the subsequent orders (except the order under which the money
was brought into Court) shall be reversed, and that the cause shall be remitted
back to Ireland with a declaration that there ought to be a new trial, with such special
directions (if any) as the Lord Chancellor may deem it proper to make.
Orders and decree revermd, with declaration and remit.-Lords Journals,
13 March 1857.
-
JOHN GREY and Others,-Appellants; WILLIAM PEARSON and Others,--
Respondents [March 5, 6, 9, 16, 18571.
1 JAJawDig. x. 973;xiv. 1539; xv. 659, 715, 1027. S.C. 26L.J. @h. 473; 5 W.R. 454;
--and, below, sub nom. Pearsom v. Ratter, 3 De G. M. and G. 398 ; 1 Eq. R. 352 ;
1 W.R. 421. On point as to rule f o r c o n s t ~ c t ~ o0;fn written instrume~its,fol-
I lowed in many cases, e.g. Abbott v. ~ ~ d ~1858, e 7t H.L.C.
~ , 81 ;T h e ~ ~ u v.
$o~
Eendteshum, 1859, ib. 459 ; Ex parte Walton, 1881, 17 Ch.1D. 751 ; Faber v,
Lathom (Eurl of), 1897, 77 L.T. 168. On point as to construction of particular
will, considered in Reed v. Braithwaite, 1871, L.R. 11 Eq. 514; and cf. I n re
Chant (1900), 2 Ch. 345.1
Fi$$-Zstates TuidContir/gencis-~~~timate ~ ~ i ~Die ander
~ t 21,i ~ ~
and without Issue.
A testator who waa possessed of two estates, S. and H., devised them to trustees,
to pay debts, legacies, and annuities and subject to the trusts aforesaid, all
. the said premises hereinbefore devised shall be in trust for my grandson
Robe& W. and the heirs oE his body ;but in case he shall die under the age of
21 years, w d without issue, my estate a t N.(subjject to the trusts hereinbefore
) , be in trust for my g r a n d d a u g h ~ Ann
respectively d e c l % r ~ shall r W. and the
heirs of her body; but in eaae she shall die under the age of 21 years, a71d
without issue, the last mentioned premises shall be upon such and the same
trust%as are hereinafter declared concerning my estate at S. And I declare
and direct, that if my said grandson Robert W. shall die under the age of 2 1
and without issue, the trustees were to stand seised of S. on trust, to pay the
rents and profits to the use of the twtators son Richard W., and his wife, for
life and subject to the trusts hereinbefore thereof declared, the estate a t S.
shall be in trust for the family D. in fee. The trustees were to raise during
the minority of Robert and Ann money f o r their maintenance. The grandson
Robert W. attained 21, but died without issue; the granddaughhr Ann W. also
attained 21, but died without issue.
Eeld (Lord St- Leonards dissentiente). First. The words must be read in their
ordinary sense as written. The first limitation over depended on the double
event of Robert dying under 21, and without issue, which not having happen^,
the limitlation over did not take effect, but the estates descended to Richard, the
son and heir-at-law of the testator, and through him to Robert, as his heir-
at-law.
1216
 GREY U. PEARSON [18573 VI H.L.C., 62

[62] Secondly. On Kubert attaining 21. the equitable remainder in fee of the
S. estate, limited to the D. family, took effect in pmswsion ;but. the ultimate
li~nitatiante that family only operated on the S., but not on the E. estate.
Per Lord St. Leonards. First. The testator did not intend to die intestate rn to
either of his estates. A change might, be made in the words of the will to give
effect to his real intention. The first gift was i n tail; the l i m i t ~ t i oover
~ i de-
pended on Robert dying without issue, and was perfectly good as a remainder.
Secondly. The remainder in fee to the I). family, did not depend on the previous
contingencies taking effect ;hut was an ultimate devise of all the testators re-
i I ~ gin the estates, so as wholly to exclude his hetir-at-law.
m ~ ~ ~interest
Richard Watson, of Stainton in Cleveland, in the county oC York, by his last will,
dated 17th April 1817, duly executed and attested, after directing the p a p e n t of
seyeral annuities, gave his freehold dw~ll~ng-house, etc., at Staintun, and his freehold
farm there in the occupation of John Sherwood, and six freehold cottages there, and
his freehold dweIl~ng-house,etc., and farm at H e ~ i n g t o n , *in the occupatior~of J o b
Sherwood, to trustees on trusts, to raise annuities for different persons, and a sum of
SZOOO for the benefit, of his granddaughter. The will then proceeded thus, and,
subject to the trusts afwesaid, all the said premises h e r e ~ n ~ f odevised
re shall be in
trust f o r my grandson, Robrt Watson, and the heirs of his body; but in case he shall
die under the age of twenty-one years, and without issue, my said messuage o r
dwelling-house and farm at Hemlington afomaid, and my said six messuages o r
cottages at Stainton aforesaid (subject to the trusts hereinbefore thereof respectively
declared), shall be in trust for my said granddaughter, Ann Watson, and the heirs of
her body ; but in case she shall die under the age of twenty-one years, a d without
issue, the said fast-mentioned premisesI[ shall be upon such and the same trusts as
are hereinafter declared concerning my said messuage or d~relling-hous~ and farm a t
S ~ i n t oaforesaid.
~~ And I declare and direct, that if my said grandson, ItoLvert
Watson, shall die under the age of twenty-one years, ann! without issue, then and in
that case the trustees, their heirs, etc., shdI stand and be seiwd of my said messuage
o r dwellin~-houseat %&aton aforesaid, now in my own ~ e u p a t i o nand , the said farm
at, Stainton aforesaid, now in the occupation of the said John Sherwood, upon th0
trusts following, that is to say, in trust to pay the rents, issues and profits of the same
premises t o or for the use of my son: Richard Watson, for and during his natural life,
etc., and from and after his decease, in trust to pay the same rents, etc., unto my said
daughter-in-law Nary Watson. during her life, and subject to the trusts hereinbefore
thereof declared, the same messuage and farm at Stainton aforesaid, shall be in trust
for my grandson, Williarn Darnell, and the said Rob& Watson Darnell, and my
granddaughter, Elizabeth Darnell, in q u a l shares, as tenant8 in common, their rei
spective heirs and assigns for ever. Tbe trustees were also directed to raise, during
the minority of the t ~ ~ t o grandchildren,
r ~ s Robeh and Ann Tatson, such yearly
sums as they should judge proper, these sums to be applied immediately by the
trustees, or paid into the hands of the testators daughter-in-law, Mary Watson, f o r
that purpose
The testator had been twice married. By his first wife he had one daughter, Mar-
garet, who married Williani Darnell, and had issue William Darnell, Robert Watson
Darnell, and Elizabeth Darnell. By his second wife the testator had one son, Richard
~ a ~ who ~ married, and had one son, Robe& Wat~on,and one d a u g h ~ r Ann
o n wets ,
Wataon. [64] The testator died in August 1817, and laft his son, Richard Watson,
his heir-at-law ; and R o b r t Watson and Ann Watson, his sons only children ; his
daughter-in-law, Mary Watson, (since deceased) ; and his grandchildren the three
Darnells, all named in his will, him surviving.
I n 1829, through the deaths of other trustees, W. Rutter became the sole trustee.
All the annuitants died, and the sum of 321000, part of the 322000, was raised for
the g r a ~ d ~ a u ~ h Ann
ter,W a t ~ n .
The testatms grandson, Robe& ~ a ~ attained n , t ~ e n t y - o ~ini e May 1829, and
entemd into possession of the rents and profits of the devised premises, and con-
I____x-

* Theae two properties were for convenience sake called in the ~ ~ u n ~< ethe
n t
Stainton estate and I the Hemlington estate.
E.L. x. 1217 39
VI B.L.C., 65 . PEARSOX
GREY U Cl8571
tinued so up to the time of his death, without taking any step to bar his equitable
estate tail therein. His father died in 1844, and he died in April 1848, without
issue, having, by his will, devised all his real and personal mt&e charged with the
payment of his debts, to his sister, Ann W a ~ o nher , heirs, etc,
Ann VVntson attained twenty~ne,and pmved the will of her brother, Robert
Watson, and entered into possession of the premises, but never did any act to bar the
estates tsil created by the will of 1817. She claimed to be entitled to an e q u ~ ~ a ~ ~
estate in fee in the premises, as devisee of her brother, Robert Watson, the heir-at-law
of his father, Richard Watson, the heir-at-law of the testator, Richard Watson, upon
the ground that the equitable reversion in fee in the hereditaments and premises
expectant upon the estate tail of the said Robert Watson therein, which had not been
barred, was, by the event of Robeh Wataon attaining his age of twenty-me years,
u n d i s p o s ~of by the will of 1817, and had t h e r e f o ~descended, through Richard
Wat~on,tohis son and heir, Robert. Ann Watson continued in the p o ~ ~ 6 5 ] - ~ sor ~uii
r m i p t of the rents and progts of the mid he~ditamentsand p ~ n ~ ~ up s etos her
death, which happened ~ 7 t February h 1549, without her having
her will, datsd 25th Noyembr 1848, after giving various legacies, she devised all her
real estate, whatsoever and whereswverj unto and ts the use of Williarn Pearson and
W~lli&m Hill (since d ~ e a s e dtheir
~ ? heirs and assigns. upon certain trusts, and, after
satisfying the same, for their own benefit, in equal shams.
The t e s ~ a grandson,
~ ~ s William Darnell, died in ~ e c e n 1849, ~ ~ rhaving by his
will, dated 13th August 1846, devised all his rea1 estate to the A p p e ~ ~ a n ~ .
On the 20th of April 1850, Pearson and Rill filed their bill as devisees of Ann
Watson, deceased, against Williani Rutter, a~ surviving trustee under the will of
Richard Watson, made in 1817, and against Grey and &e other ~ p ~ e l ~asadevisees ~ t ,
under the will of William Darn&, s b t i n g BS hereinbefore set forth ; and the bill
prayed, that; it might be declared that, a ~ ~to the ~ truei const~uct~on
n ~ of the will
of 1811, the limitations therein contained to take effect in the event of the death o f
R o h r t ~ ~ a ~the o ~n t, a t ~ rgrandson,
s under the age of tweIity-one years, and with-
out issue, became inoperative upon the said X o h r t Watson attaining his age of
twentyoneyears; and that ~ i l ~ Rutter ~ a m waa ih trustee of the fee siniple of the said
premises for the Plaintiffs, as devisees of Ann Wataont and that he might be ordered
to convey to them,
The cause was heard before ~ r ~ c ~ C h a n c eTuraer, ~ l o r who was of opinion that the
grandson and g r a n d d a u ~ h ~named r, as ~ n a n t sin tail, h a v i n ~each died without
issue, the ultimate limitation took e&&, and the Darnells were entitled. Ple there-
fore made & decree dismissing the Plaintiffs bill, being also of opinion that the last
clause of the will, subject to the trusts kereiribefore thereof declared, overrode, all
the [66] previous l i ~ ~ t a t i o andn ~ , that, as Robert Watson had not barred the estate
tail, both the estates went in accordance with t h n t devise.
This decree was tskea by appeal to the Lord ~ h & n c e ~who, ~ r ,on, the 11th June
1863 ( 3 De Gex, Macn. and Gord. 398 ;nom. Pearson v. &tier), w&s pleased to- vary
the order of the ~ ~ c ~ c h a ~ i c e and l l o rto
, decreey as iw the ~ ~ i estate;
n that,~ n
according to the true construction of the will, upon Robert Watson attaining twenty-
one, the equitable estate tail in remainder limited to Ann ~ a ~ in ncaae, the said
Robert W s ~ should ~ n die under the age of twenty-one years, and without issue, be-
came incapable of taking e i h t ; slid tha&upon Ann atso son a ~ a i n i twenty-o~~e ~g the
trusts declared of the Rernlington estate, in case the said Ann Watson should die under
the age of twenty-one years, and w i t h o ~ issue, t h a m e i ~ ~ c a ~ aofb &.king
le effect ;and
that the equitabIe reversion in fee in that estate became, in consequence, und~spos~d
of by the will, and descended upon Richard Watson, the son and heir-at-law of the
testator, and, through Richard Watson, descended to his son Robert, and was by him
devised t o Ann; and that Rutter was a trustee of the Kernlington estate for Pearsoii
and Hill, as her devisees. And, as trr the Stainton atate, that, according to the true
consti-uction of the will, upon Robed ~ ~ a a ttt &~i n ion ~t w ~ e ~~~ t y ~ ithe
ie, ~uitable
estatea for life in remainder limited t o Richard Watson, and his wife, Xary ~ a ~ o n ,
in case Robert ~ a ~ should o n die under twent~-oneyearn, and ~ i t ~ ~ oissue, L i t became
incapable d taking effect ; a d that, upon the deatb of Robert Watson without issue,
the equit.ab1e estate in fee in r e m a ~ ~ dlimiteder ta the Darnells, as t ~ n ain~ c~o t~ ~~ o n ,
1218
 GREY v. ~ ~ [:18571
~ R sV I H,L.C.,~ 67 ~

took effect in possession, as devisees in trust, accordi~~g t;o their respective shares and
interests therein.
['TJ This was an appeal against so much of the decree as declared the i I ~ t ~ a c y
with respect to the H e m l i n ~ o nestate (both parties objected to the decre%j the Appel-
lants, as i t deprived them of the ~ e ~ n ~estate, i n ~andn the R e s p o ~ ~ d cas n ~i ,t did not
award them the tainto on etate. But the appeal was only brought in respect of the
decision as to the Nemlin
~ r . ~ a and ~ eMr.
r M horn was Robson) for the ~ p ~ ~ a n t s . sole - ~ e
~uestionOR this appeal decision as to the ~ e ~ ~ i estate. n g ~ The n %e-
spondents claim under the heir-at.-hw of the testator, and contend that, in the events
that happened, there was an intestacy as to that part of the property. The A p p e l ~ a n ~
contend that the ultimate limitation in the will of 1817 continued in force? and took
effect as to both estates on the death of the granddaugl~terwithoutissue. The question
on the construct~~n of &e will depends on the author~tyof the decisicrn of Lord Bard-
wicke in ~ ~ v. ~ 0~ (2 Yes. %
243-241).
~ ~ The ~ firat
~ gift ~there
~ wass to 0 t~stees ~ ~
to receive the re& and profits till J. B. should a t b i n twenty~iie,and " if
live to attain t ~ e n t y ~ nor e , h w e issue, then to J. R. and the heirs of his
if J. B. should happen to die before twenty-one, and without issue," to S.
same manner, and for want of such issue to his own right heirs, J. B. attained
twenty-one, but died without issue. Lord Hardwieke held, that this was a lim~tat,ion
to J. B. and to S. B. in tail, md that, on the death of J. B., after twenty-one without
issue, the estate went over a c c ~ r d i ~tog the l~mitat~ons.That case r e c o ~ i s e sthe
power oE the Courts im transp~seand alter a word in a will, so as. to give effect to the
general intent of a [@"J testater ;but it i s an error to suppose that the decisisn there
went on tbat ground, it proceeded on the ground that an mtate tail was vested in
J. B. a t twenty-one, aad that the words '' die without isaue" went through the whole
devise, and that on his so dying after twenty-une ivhen the estate was vested in him,
it went by way of rema~nd%r. That case entirely g o v e ~ the s present. Here, rn there,
the first estate given was an estate tail, ~~~0~~ v. Clit.eEe (3 Lev. X25), Puck v.
~r~~~~~ (Moors, 13, pl, SO), ~ ~ v. ~ ~ ~
~ (Cro. Car.
~ ~ 185). ~ n The u2 g ~ t i ~ ~a ~ e 9
devise over of the ~ e m ~ estate ~ n preceded by estates +s1i wm a l i ~ n i ~ t i o ~
~ n being
after the failure o f those est@%>and took effect accordingly. The general effect e
the test8tor's iPiE shows clearly that such w a s h i s i n ~ n t i o n . On the death, without
issue, first of R o b r t and then of Ann, the ultimate limitatioa to the Darnel
come into u p e r a t ~ o ~ To . secure that resulk the word and in the will must,
sary, be read or; ~a~~~~~v. ~~~0~~ (3 Vw. &SO), for &e t ~ t a t u intended r that-
~ ~ t h oissue u t of his two; ~ a n d ~ h i should ~ d ~ be0 ~the c o n ~ ~ n ~ on e ~the
c y~ ~ a p p e n ~ofn g
which effwt should be given to the succeeding estate. To adopt a di~erent,construc~
tion would be to create an intestmy, and so. vest the absolute ownership in the
t e s t a ~ r ' sson Richard, though the testator had expressly limited his interest to a life
interest in one part o . It is clear that the ~ ~never ~intend^t such ~a result.r
~~~~e~~ v. ~ ~( 0aad P,,~ N. B.,9 38) applies,
~ so far as it shows that the Courts
will t r a ~ s and e alter words? i n order to giye effect to the ~ n e ~ntention
~ ~even ~ a ~ of
the testator : in other respecfa, i t is d~stinguishab~e aa being a wse where the gift was
in fee and not in tail. But ~ o o d v.~G ~Z ar ~~- ~ 6 9*r ~i s-in ~ point.
r ~ ~ There the
words were, " if any of my c h ~ l d ~shall n die before twenty~ne,or unmarried, the
--_--XI I - ~ - ~ - ~ ~ -~~~
*2 Vern. 388. This case i s ~ p o by ~ Vernon
d as if ocourring in Chancery,
Mr. Raithby's edition of Vernon (18%) rows a doubt on &e report,, by a ~ p e n d ~ n ~
a note, which s t a that ~ " n o op~nionor deoree of this date appear8, The Court
ordered a case upon the will to be staked, in case the parties or their counseL could not,
agree t~ the same. Eeg. Lib. 1200, B. foi. 90. No further entry appe"$rd' The
t ~ o n this, thst a suit, was inst~tutedin Chaneery, and an ejectment
e ~ ~ ~ ~ ni saprobab~y
also tried,and the opinion expressed b y h r d Chief Justice Bolt on &e trial was intro-
duced i n b the report of the case when it was hewd b f o r e the Lord Keeper, who
hiniself oxpressed no opinion j but gave liberty to state a case. The date of the case
in the report i s November 1700. Lord Chief Justice Holt could not then have decided
it in C h a n ~ r y for
} he WQB a ~ o n ~ ~ i s s i o of r Great Sea1 only mm the 5th to the
n ethe
21st May 1700, when Sir Nathan ~ r i ~ was h t a p ~ o ~ n t eLwd
d Keeper, Lord
Xaym. 566.
1219
VI B.L.C., TO GREY U. PEARSON fl.8571
share of him so dying shall go over to the s u r v i v o r ~ ~ a nthe d c o ~ t r u c t i o nput upon it
was that whicl~-preservedthe ~imitations~ for the share was held to go over on the
death of the one son unmarried, though he had long before attained twenty- on^.
There the words die before twenty-one were not treated as the operative words of the
condition, but the dying unmarried was held to be that event which gave effect to the
s u c c ~ d ~ estate.
ng In the same manner, here the words die under twenty-one are
immaterial, except so f a r as connected with the words and without issue; t h y
protect the issue of Robert, should he die under twentyone leaving issue.
The rnost recent and most8fully considered case on this subject is that of Mort&ner
v. ~ a r (6~ C. ~B. e819~; 6 Ex. Rep. 47 ; 3 De Gex and Sm. 316). There tihe will,
which wtlg divided into elausw, appointed executors and trust-, and the 11th clause
proceeded thus : 11, (I will that my son h h n , having a t h i n d to twenty-fi~eyears of
age, be let into possession of all my property, real and personal, which remains, on this
expreera condition, eta [70] 12. If it should happen that my aon John die without
leaving lawful issue, it i s my will. that Ann have his &.re, sub+& to the &me
restrictions, etc. 13. If it should please God to take away both Ann and John
under age, or without leaving any lawful issue, I give to my brother Joseph % e s t e ~ a n
and his heirs for ever all those cottages, etc., built on the waste, The 14th article
contain^ a general devise, on the failure of the preceding l i m i ~ t ~ o ntos ,the P~aintiff.
Ann died an infant, leaving her brother John her heir-at-law. John attain^ twenty-
five, was let into possession, but did nothing to bar the estate tail, married, had three
children, and died in 1842. One of the children died in his lifetime, the swond two
years, and the third four years afterwards, all infants and without issue. Vice-
Chancellor Knight Bruce sent this will to the Court of Common Pleas, where it was
held that John took an estate in fee, rand the word or was read and. I f the decidon
of that Court was right, that ease would not apply to the present, as the devise was
held to be in fee. The ?Tice-Chance~lor,not being satisEed with the decision o f the
Court of Common Pleas, sent the case to the Court of Exchequer, where, in an elaborate
~ u d ~ e delivered
n t by Mr. Baron Parke, that Court made no change in the words,
but dec~aredthe estate to John to be s n estate tail, and SO.gave &ect ta all the limita-
tions. The case then again came before the ~ ~ c ~ c h a n c e who ~ l o was
r , I of opinion that
John was tenant i n tail ; that the wtate to Ann was limited i n a similar manner,
and that, on the failure d these, the ~ i m ~ t ~ t i over
o n s in the 13th and 14th clauses
took effwt. In coming to this decision the ~ T i c ~ C h a n ~acted l ~ o rexpressly on the
authority of Brownsword v. E d w a r h [ 2 Vw. 243-71.
(Lord St. Leonards.-Was Mortimer v. lIartley brought to the notice of the Lord
Chancellor in the Court below4)
It wras not ; all the report of i t had no&then appeared.
[71] So f a r the cases support ~ r o ~ ~v. Es i d ~ ~r %hat ~~ ~is them ~ .totimpeacfh
it? There is the case of Doe d. Usher v. Jessep (12 East, 288). But it is s u b ~ ~ ~ t e d
that either that case proceeded on a misconception of 3 ? , o w ~ ~ i ~ oY.r dEdwnrds, or
was wrongly decided. The devise there was to trustees f o r A. (then under age) and
the heirs of his body? and if he die before t w 6 ~ t y ~ nae ,d w ~ ~ oissue, u t then over
to other relations, and u ~ t i m a ~ tl oy the ~ t a ~ r ewn s right heirs. A. a t ~ ~ n e d
twen~y-oi~e, and died a few years a f t ~ ~ a r dwithout s issue, and without having
suffered a remvery of the freehold property devised by the will. !&e Court held that
A. having attained twenty-one, the l ~ m ~ t a t ~ oaver n s did not take effect, as, by the
natural sense of the word and, they were made to depend on the ~ ~ a p p e n i nofg both
events, i.e., the son dying before twenty-one, and without issue. That decision
cannot be supported. It disregards the fact that the estate given was an estate tail;
it was decided hastily, and not after full argument, and i t swms to have proceeded
entirely on the question, whether the Court could there change one word for another,
as which Lord Hardwiekes reasoning in the previous case o f ~ r ~ ~ i ~ v.s ~ ~
r ~ s to have been quite m i s a p p ~ h e n d ~By
E d ~ ~ appears . the c 0 n s t ~ c t ~ Othus
.n
adopted, all the l i m i ~ t i o n swhich were l i m i ~ t i o n sin remainder were defeated.
That case has not met with the approval of the profession. In F i q a t v. B a k e (2 Moll.
50, 66), Lord ChanceIlor Hart, speaking of it, said, In Usher v. Jessep, I think they
went a tremendous length. I should have t h e ~ h d~fferentlyt from the Judges who
decided that case. In ~ a v. ~ a~ ~ (2~RUSS.
~o r and o M. 416,~ 4471,~Lord Chancellor
~
rougha am exprwsly recognised ~ ~ ~ u ~ n V.s uBdwards, ~ o r ~ and speaking of Doe d.
1220
 GREY U. PEAfcSON [I 8 5 71 VX H.L.C., 72

Usher v. Jessep, said, The Court of Kings Bench has in that case certainly [72] gone
against, though it caniiot be said to have overruled, the decision of Lord Hardwicke.
The decisioa here praeeded on the authority of Doe v, Jessep, and cam&, tlierefose, be
support^.
Then BS to the other point. Bohh estate8 go together under the u ~ t ~ m a~t ien ~ i t a t i o n
in the will, which ovesridea the whole of the previous trusts. me twtator did not
intend to make m y permanent) distinction betwen the two estates, although for a
certain purpose he interrupted their union for a time. Whea that, puspose1 was
answered, he intended them to be reunited, and to descend together. The ~ e n ) l i n ~ o n
estate i s not a f f ~ t e dby any ~ n t i i I ~ e ~ i~t ci sya; vested remainder: ~ e ~ v. ~ ~
Tracy ( 3 Atk. 774 ; Amb. 204), Brcrdford v. Foiey (DougL 63), Doe d. Lees v. Ford
( 2 Ell. and B1. 9701, Carde v. Garde (3 Dru. and ?fr. 4381, Qui& T. Lea& (13 Mess,
and Weis. 215), Key v. K e y (4 De Ges, Macn. and Gord. ?3), and ~ ~v. C ~o ~ ee ~ ~~
(2 De Gex, Macn. and Gwd. 551). If there a r e any words which appear ta engraft
any contingelicy on the ultimate limitation, the general intention of the will must be
looked at, and then it will be seen that that intent was t o create estates tail in SUCCBB-
sive re~i~ainders, not affected by any contingency. !%e words subject to the tritsts
I

h e r e i n ~ t e declared
r of the Stainton estate, ~ r i t x ~ uall c ethose trusts into the part of
the will Prhich relates to the Hemlington estate, and that estate, after those trusts are
satisfied, goes with the other in regular course of remainder.
Mr. Rolt and Mr. Faber for the Respondents.-If the words of this devise are taken
by themselves, the construction to be put on them i s perfmtly plain. The [73] words
are, that if the grandson, Robert Watson, shall die under tweaty-one, w d .without
isme, the estate isi to go mer to the g r ~ n d d ~ u g ~Both ~ ~ the
r . events must, ~iappen
as here described, in wder that the limitation to the g r a n d d ~ ~ u g&ould ~ t ~ r take effect.
To read a d as or, which is necessary for the construction of the other side, wauld be
to d i s ~ n h e r the
~ t gr~ndsonaissue, should he die under twenty-one leaving issue. It
l e suck could have been the ~ntentionof the testator. The ~ p p e l l a n ~
is i i ~ p ~ s i bthrat 1

seek, in substance, to introduce the words at any time before the words without
issue* There can be no justification for that. To introduce these words would be
e q u ~ v a ~ etoi ~striking
t out the words die under t ~ r e i i t y - o n eand,
~ in truth, the whole
argument on the &her side g m on tht. p r ~ u m p t ~ othat, n these words do not esist in
the will. It i s admitted on the other side, that a test.ators intention must govern
the constmct2ionof a will. The intent,ion here i s easily explainable The testator
gave an estate tail to his grandson, knoving that the grandson on arriving a t
twenty-one might absolutely dispose of the estate, and thus secure1 i t to his issue,
while the words and without issue being united t o die under twenty-one, would
secure it to the issue, should he die before that age, leaving issue. In all events the
issue was provided far. The words must be rmd as if they were die under twenty-
one, and without having had issue.
It is a p r i ~ ~ofc construction
~ ~ l ~ not to depsrt fsom the plain words of a will,
unless the generd scheme of the will shall show, thatt to follow them will hsve the
effect of defeating the clear intention of the ~ t a ~ There r . is nothing of that kind
here: but rakttier the rmerse. There are some cases in which or has been read nnd,
but in those cases the special object ef the change has been that of p r e s e r ~ ~the n~
estate to the issue af the fir& taker. ~ 0 v. 1741~ ~~?~~~~
~ 1 (Cro. ~ Eliz. 525 ;S.C. nom.
Sowell v. Garret, Moore, 422, pl. 590), and Lord Vauss case (Cro. Eliz. 269), were
instances of thatskind, and are expbined by the necessity which, in order to e f f ~ t u a t e
the plain intention of the testator, required such a remedy. For that reason the same
course was adopted in NeEZiard v. Jenniags (1 Lord Raym. 505 ; Freem. 509), Vwcclsh
v. Petersoti (9 A*. 193), Pairfield v. M o r p n ( 2 Bos. and P., N.R., 38), D e m v. Kemeys
(9 East, 366), and Right v. Bay (16 East, 67); the decisions in the last two being
expressly founded on the preceding cases. Nct. such neccxessity exists here2 and to
change the word in this case would, as already shown, deprive the 8ons issue of the
estate if he died before attaining twenty-one. In ~ o o ~ z u Y. a r~~~~~~0~~
~ ( 2 Tern.
38$), h r d Chief Justice Holt was of opinion that though the devisee attained twenty-
one, yet, as he wtw unmarried, the &ake went over according to the ~ i ~ I ~ t a t i o n s .
Tilere the word was or, and reading the words as they stood, no tinis was fixed a t which
the dying u n m a ~ i e dcould be made spscially applicable. The limitation, therefore,
w11ick was dependent on it took effect w h e n ~ e rit occurred. But here the dying
1321
 E.L.C., 76 GREY ?PEARSON
I. [1857]
under twenty-one is specially eyprmsed and cannot be disregarded. The two casea
are therefore materially different fi-on1 each other. What was said by Lord Hard-
wicke, in Broziinszoord v. Edwnrds (2 Vm. 243, 247) was made the ground of decision in
iliortirner v. Harttey (6 Exch. Rep. 47). That case, though relied on by the Appellants,
is in reality an authority f o r the Respondents. The Court of Common Pleas (6 C.B.
819) read the word or as a n d ; the Court of Exchequer, following Lord Hasdwicke,
declined to do that, and said that the words must have their natural moaning, a [76]
rule which the Respondents contend must be followed here. Mr. Baron Parke, in
dedivering the judgment of the Court,, distinctly declared (6 Exch. Rep. 61) that the
opinion of Lord Hardwicke on that point was one on which the Court, ought to act,
and, referring to the authorities, said the disposition of the Court should always
be to abide by the words of a will, and tcr read them in their ordinary g r ~ ~ a t i c a l
sense. If we were to do so in this case, and make no alteration whatwer, it is possible
we may disappoint what we mhy conjecture to have been one intention of the teetator,
because it is a reasanable intention to entertain, that is, to give a baefit to the issue,
if their parents should die under twenty-five, but we are sure of carrying into 0Ewt
a manifest and declared intention of the testator to give the remainder over to Joseph
en the deterniination of the estate tail. On the other hand, if we change or into and
for the purpose of effecting the conjectured intention, to give a benefit to the issue on
the death of their parents respectively under twenty-five, we defeat the clear and
manifmt intnvntion to give the remainder to8Jo6eph on failure of the issue of John and
Ann, and cause an intestacy as to that remainder, a circumstance whioh ought to be
avoided ; and thus explaining himself, he adds, ( But as none of the authorities
applies to an estate tail, and we have Lord Hardwickes high authority for dis-
tinguishing such a case, we are of opinion that we ought to do so and abide!by the
ordinary wnEe of the words. We havrr, therefore, t.he opinion of the Court of
Exchequer that ~ ~ o w n s ~ ~ iv.o ~r dd ~ ~ ~ isa not
r d an
s authority for changing the words
of a will, and here the first limitation is a clear wtate tail to tha gramdwn, and that
is the very case in which Lord Eardwicke said, and [76] the Judges of the E x c h q u e ~
repea&,that no such change of words can take place.
The hter esse of Doe d. Usher v. Jessep (12 East, 288) is exact21ylike the present.
.bere an estate tail was immadiately vsst;9d in a natural son, and, *if he die before
twenty-one and without issue, over. The son attained tlwenty-one, and then died
without issue. The case of Brownsword v. Edwards was there relied en to show that
the limitations ever took effect, and the Court was pressed to read a d as or, but
refused to do SO, observing that the testator had given the estate over upon the happen-
ing of two emeints, and that the Court could not give it over upon the happening of one
only, but must construe the word in its natural sense. That is a rule of construction
which the greatest authorities have always approved of.
(Lord ~~ensleydale.-It is well expressed by Mr. Justice Burton in Fur5urton v.
Loveland, and the rule equally applies to deeds aad to statutes.)
Besides, there is nct secondary nor popular sense of the word and which, agroes
with the construction now sought to be put on it by the Appellants.
Then as to the second point. LetAieullier v. TTncy (3 A&. 774); Bradford T.
Foley (Dougl. 63); and S ~ e ~ v.e Co?ientry
~ d (2 De Gsx, Macn. and Gord. 551); and
Doe d. Lees v. Ford (-2 Ell. and Bl. 970), do not apply here. But, Doe d. Fatson v.
Shepphard (Dougl. 7 5 ) , where one contingency was held to affect all the limitatiens,
i s in point.
[77] (Lord St. Leonards.-Suppose there had been a residuary devise of the real
estate 2)
That would of course have carried erverything, but there is no such devise hetre.
(Lord St. Leonards.-But are not the words here equivalent to that?)
They are not. The words of subsequent trust are not to be1 introduced as if
written i n the will, unless after the words (in case she die under twenty-one, and with-
out issue. Besides, the evsnts thus descxibed have not happened, and therefore the
estatm tail did not take effect.
* 1 Euds. and Br. (Ir.) 648 ; and see the opinion of the judges delivered in that
case by Lord Chief Justice Tindal in this House, 2 Dow and C. 493, and in the Susses
peerage caqe, 11 Cfark and F. 113.
1222
 GREY v. PEARSON [l857] VI H.L.C., 78

Hil: Wdker replied.

The Lord ~ h a n c e ~ l oarch
r 16), after fully stating the case, and the decisions in
the Courts below, said:-The question as to the Bemlin,&on estate arises in this
manner : Two e s t a h are given, subjwt to certain trusts for raising annuities and
legacies, and subject to the trusts aforesaid, all the said premises h e r e i n b e f o ~
devis& shall be in trust for my grandmn Robert Watson, and the heirs of his body ;
but in case he shall die under the age of twenty-one years am2 without issue, then to
Ann in like manner.
What happened was this. Robert Watson died without issue of his body, but he
did not die undelr the age of twenty-one years. The real and important question is,
there baing that condition, if he should die under the age of twenty-one years crnd
without issue; whether that and really is to!be read according to it8 natural import,
so as not to give the estate over unless he d i d both without issue and under the age of
twenty-om yeass, or mhether, he having attained tuwnty-one, but died without issue,
the [78ftrust over was to take &e&, rejecting the words I under the age of twenty-
one years.
upp posing this c&se had been ~ n a f f by ~ d decisions, I conce~ve&er%could
~ prior
have b n no doubt upon the subject, becaum the r u b of construction, and the rule
which, in modem times particular~y,the Cou& have always been anxiously i n c h e d
to follow, has beat to n d h - e as rigidly BSI pmible b &e express worda that are found,
whether in wills or i n deedrs, aqndts give to those words their natural ordinary meming,
unless, by so doitig, it a-ppeam from the context, that you are uging them in a d~ffeyent
sense from that in which the testator or the maker of the deed intended to use them,
or, unless by sot using them, you would bet doing something which would manifwtly
lead to an inconsistency, which could not have been the intmtion of the party making
the i n ~ r u m e n t .
Applying that rule to the present e m , supposing it to be ~ n t o u c ~ ebyd decisions,
the question is, whether in construing that word n?zd copulatively in its natural
sense, you are doing anything which is inconsistent with what else appears upon the
face of the will, or are doing m ~ e t h ~ whichn g ~ a i i i f ~must l y be, going c o n t ~ to
a~
the real objects. of tke testator. f confess I can see no ground whatmever for thinking
that We word and was not what the t a t a t o r intended, for he gives the -tat& to
his ~ a n d Robert ~ ~ nWatson and the heirs of his body. That oreat- an estate; tail,
and all persons ~ a m i l i a with
r the subject know, and probably this testator knew, that
when his grandson attained twenty-one, he would have the absolute power of disposing
of the property just as he might think fit. Centuries Exwe elapsed since it,was settled
that a tenant in tail has, in truth, the absolute coritrol over the property. He may, by
suffering a recovery, or, without [79] suffering a recovery, by doing something
analogous to it, make hirnself the absolute owner of the property. Where you give an
estate to a tenant in tail in that way, it ~ m k e shini substant~allythe absolute owner
of the property. But the testator declares, thak if the grandson should die under the
age of twenty-one years and without issue, i t shall go ooer. It appears to me that
that was not an irratioiid niode of disposing of the property. I should feel a t a. ~QSS,
indeed I should tLhinkit i~possible,to hold thak that could not be what the twtator
intended. And, therefore, ind~pendentlyof ~ u ~ ~ rI ~should t y ,feel myseIf bound
to adliere to the strict meaning of the words, and to say thab the testator htbving
given the estate over in the event of his grandson dying under twenty-one, and
without issue, inasmuch a B the g r ~ n d s o na t t ~ i ~ tewde ~ i t y ~thoug~i
ne he died w i t ~ o u ~
issue, there was no gift over.
But then the question is, whether this mode of constr~iingthis will has been affected
by previous authorities, because there is anothelr rule which is quite reasonable, that
where words have for R long series of years obtained a well-known technical meaning,
although it might not be that which, if tho case had been entirely untouched by deci-
sions, the Courts might now adopt, it would be unsafe, and it would render property
insecure if we were now ta depart from that ~ e a n i n gand apply a different rule of
construction.
The cases which, by way of annlogy, were mainly relied upon as a u t ~ ~ o r i t weTe ~es
cases of which there a r e a great many in the books beginning with one reported in
~ found in Crokes Reports (Lord Vauxs case, CI-0.
the reign of Queen ~ l i z a b e tniid
1223
VI H.b.C., SO CREP v. PEARSOX [1857]
Eliz. 269. Yo&e v. Gerrurd, Cro. Eliz. 525. S.C. nom. SoweEl v. Garrett, Mwr,
432, pl. 590). I say beginning then, though I am not clear that there [SO] may not
have been prior cases; but, beginning then, the same doctrine is carried down
through a variety of eases, and was ultimately approved of and sanctioned by your
Lordships House in a well-known case, in the early part of this century, that of
~ a z v. ~ Morgaiz
~ e(2 Bos.
~ ~ and P., N.R., 38). That was a writ of exror from Ireland.
In that case the doctrine was enunciated and approved, that where a testator devises
an eatate so as to give the control of the fee simple to his son, o r tQany other person,
f o r instance, to A. B. but if he dies under the age of twenty-one years, or without
issue, theii over, in that case the word (or, must have meant and ;and, though
((

it is improperly used, must be taken to have been used conjunctive~yand not dis-
junctively, because it never could have been the testators intention, in giving an
estate to a person and his heiia, t o give it away from that persons issue, if be should
happen to die under twenty-one leaviiig issne. I confess that, if that were now ta
be decided for the first time, I should rather have doubts upon it, whether it was not
more likely to be the safe rule to adhere to the strict. meaning of the words used, than
to speculate upon what the testator intended. However, I only throw that out, not
as meaning to cast any doubt upon the rule that where these words do occur, they
niust be, prima facie, at least, so understood, that i s t o say, that if an estate i s given
to a person and his heirs, with a Emitatio-n over in case he dies (under twenty-one,
OT without issue, then in that caee if he dies under twenty-one, leaving issue, still it
i s meant that the issue should take; and if he attains twenty-one and does not have
issue, sfill he has an estate tail. That has been the construction adopbd for the
purpose1 of preserving the estate to the issue which otherwise would be defeated. The
ground of that, as I [Sl] have already pointed out, is that any other construction
would defeat that which must be presumed to have been the intention of the testator,
and that when he gave the estate to a perso-n and his heirs, or in a way which amounts
to giving to a person and his heirs, that construction must be wrong, which, if the
person died leaving issue, would take it away from that issue. And tcl depart from
that long-established rule, and to adopt a stricter rule of construction, would probably
cause more evil than it would remedy, a6 was very abIy pointed out by Lord Broughani,
when he held the great seal, in the case of Malcolm v. Taylor (2 Russ. and EIE. 447).
The question which your Lordships have now to consider is, whether there is any
such well-recognised technical rule applicable to a case like the present, where the
devise is not to a person and his heirs, with a liniitation over if be dies under twenty-
one, or without issue; but where a testator gives a n estate tail to a person, and the
heirs of his body, with a limitation over if he dies under twenty-one, and without
issue. Is there any rule of construction which says that in that case i t is to go over
if he does not fulfil both conditions, that is to say, if he does not die under twenty-one,
and without issue; that it is to go over if he dies at any time without issuet
I n support of the proposition that there is such a rule, reliance was placed upon
the well-known case of 3 r o ~ ~ ~ ~ s v.7 ~Edumrds
ord (2 VBS. 243, 247), a case of very high
authority, which was decided by Lord Chancellor Kardwicke. [His Lordship fully
stated t8hecase.] That case has often been cited, and certainly quite erroneously
cited, as a n authority for the proposition that Lord Hardwicke held that the word
and I was to be read as or. That is cIearly not the [82] ground upon which Lord
Rardwicke proceeded, as is manifest from his own language. What Lord Kardwicke
proceeded upon, whether correctly or not, was this. Re says, this is an alternative
gift; if John Brownsword attains twenty-one, OT his issue, it is a gift to him and the
heirs of his body; and then comes the alternative; if he dies under twenty-one,
am? without isaue, then there is a gift to Sarah Brownsword. Now, he did not fulfiI
both these conditions ; he did not die under twenty-one, though he died without issue.
Lord EIardwicke, nevertheless, held that by implication the estate was to go over to
Sarah Brownsward in any event, if he died without issue. But that was llot by
altering (and into or. For unquest~onably,Lord Hardwicke never would have
((

held that if he died under twenty-one, leaving issue, it was to go away fmm his issue.
That never could ha-ve been his meaning, because it was an express devise to him and
the heirs of his body. To make it quite clear that Lord Hardwicke did not proceed
upon that ground I will read what he says, speaking of those cases in which or (

has been held to mean and, he says (2 Ves. 249), If the first limihtion had been
1224
 GREY U. PEARSON [I8571 VI R.L.C., 83

in tail there would be no occasion to resort to that, hut the Court would have made
the construction I do now; viz., if he dies without issue before twenty-one, then orer,
by way of executory devise; if he dies aithout issue after txenty-one, when the
estate had vested in him, it would go by svay of remainder; because he had made his
original devise capable of a proper remainder, in which case the C0uP.t will alw8ys
construe it a re~minder.
I do not knew that it is necessary for me absolutely to say t b t , I think, Lord
Hardwicke i s not in that case rightly deciding. I confess, however, that if bound to
express an opinion [s] upon the subject, I should be obliged to say that I do not,
think that is a decision founded upon correct principles ; hacause, unquestionably,
Lord Hardwicke there, though he does not change the word am? into OT, which
((

would not have answered his view a t all, does imply that there was an intent~onto
give a remainder in case the estate tail in the wn $ohn took effect; whereas there
are no words that express such a meaning. In this case, however, that principle
cannot apply, because here the words are clearly sufficient to give an absolute estate
tail in the first inshnce, which was not the ease in ~ r o ~ s w v. o ~Edzuards
d [ Z Ves,
213, 2411. There, it may be said, that in the expression, if he should happen Eo
die before the age of twenty-one, a d without issue, the words befoye twenty-one
were not unnatura~ly,though perhaps u n n ~ e s s a r ~ ~ introduced,
y, because the object
was to provide for a contingency exactly the oppoaite of that which h r d Hardwicke
points to; that is fasay, if he died before twenty-one, a d without issue, is the alter-
native of either attaining twenty-one or having issue. But in the present case, the
words found in this will, if he dies under the age of twenty-one years, are absolutely
ineani~ig~ess, unless full &ect is to be given to the word m d after the expression
if he dies under twenty- ne^ t that it is to be read as, if he died
The a r g u m e ~ is,
without issue, whether under the age of twenty-on%yetas or after the age of twenty-
one years, so that the words under twenty-one yeass,?it is contended, have no
meaning a t all. Not being called upon t o say, whether upon the grounds pointed out
by Lord Hardwicke, that case of ~ ~ T o ~ ~ v,~ Edwards s w o r ~was o r was not rightly
decided, I shall only observe that I conceive thab either it was not rightly decided, o r
that, if rightly, i t was so dwided upon principles not governing this case.
[34] Whether I should have felt myself warranted in adopting such 8 construc-
tion, if this case of ~ r v. ~ d w a r~dhad
~ been entirely
~ unshaken,
~ i s ~b matter
~ ~
upon which I need not speculate, because I csnceive that the precise view which I
take of the law upon this subject was discussed in the case of Boe d. Usher v. Jessep
(12 East,, 288) in the Court of Queens Bench, in the year 1810, when Lord Ellen-
borough presided in that court. I confess that, to)my mind, and indeed it was pretty
well admitted at the bar, that the present case is und~stinguishablefrom that case of
Doe v. Jessep. There a devise was made to trustees in fee, in trust to and for my
u ~ l y f o r ever. It was a gift
natural son John and the heirs af his body l a ~ ~ ~ fissuing:
in tail in the first instance. And my will further is, that if the said John Jessep
shall happen t o die before he attains his age of t w e ~ t y - ~years,
n ~ and witbout issue
lawfully. to be begotten, then I devise i t over to certain other persons, who were the
claimants. The question was, whether the persons claiming upon that gift over
were entitIed, the facts being, as in this case, that John Jessep had attained twenty-
one, but never had any issue. When the case came before the Court, ~ r ~ ~ # ~ s ~ o ?
v. Edwwds having been prwsed as being dirwtly in point, Lord Elienborsugh said,
The cas88 certainly run very near ; the only distincti~ii seems to be, that the limita-
tion over in ~ r ~ ~ ~v. s~ ~~ #~ oiwag ~r in
r~ favour
d s of & daughter, who, vithout sucii
a construction was there put on ths word and: weuId have been Ieft without any
provision, and here the limitation over is to? other relatives. Now I think i t i s
better not to&make such nice distinctions, in order to save the necessity of saying
that you go against a prior decision; and really the distinction, after all, only
comes to this, that in one case i t [a] was a qift over to oollaterals, and, in the other,
to nearer relations. That appears a distinction not to be understood, and one which
does not mark difference.
Then Lord Ellenborough goes on to say : But i s there n i t a rule of common sense
((

as strong as any case can be, that words in will are to be construed according to
their natural sense, unless some obvious inconvenience o r incongruity would res&
from so construing them. Now here t,he testator has used the copulative word ad.
E L . x. 1225 3%
VI H.L.C., 86 GREY v. PEARSOH pw1
and has devised his estate over in case his son died before twenty-one and without
issue, that is, if both those events happened ; why, &en, should we mad am3 as Or,
and give the estate over upon the happening of one only of the events, when no in-
conven~encewill ensue by construing the word used in its natcuralsense?
That was the decision of the Court in 1810, just sixty y e a s after the case of
~ r o w ~ s w o rV.d Edwwds [ a %W. 243, 2473. Whether the more recent case i s now
entirely unqueslimed, I do not stop to inquire, As far as I have been able to dis-
cover, i t has not been serious~yquestioned. I L has been in force for between f o s y
and fifty years.
When this case came before me by way of appeal, it appeared to me that either
Doe v. Jessep over-ruled ~ r o w ~ ~ v.w ~o dr ~~ i ~o rrthat, , not, it was by reason of
~ s if
there being some distinction, which same distinction exists in the present case. I
thought the rule Iaid down in Doe v. Jessep a much more sensible and convenient r u b
than that in 3 ~ 0 v. Edwards,
~ ~ and~ I acted
~ upon~ it. 0 ~ ~
Though E have since considered the case in every point of view, and have looked
to see how far subsequent aut,horities have a t all shaken this decision, I cannot me
to any other conclusion than &at the decision a t which I arrived Is the safe and
correct conclusion.
There was one case which had bwn decided, when the [86] present cast? was
argued, bearing mme relation to it, but it was not quoted in the argument before me,
and I dare say counsel were not awam of it. On looking, hewever, at that case, I
confem, so far from leading me to do;ubt the propriety of my decision, it rather con-
firms me. I allude to the case of Hortimer V. ~~r~~~~ in the Exchequer (6 Exch. Rep.
47). In that case there was some doubt as to what estate was meant to be given to
the son John and the daughter Ann ; but i t was held that, by the proper cc~~struction
of the will, estatm tail were given, and then it was said, If it shall pleae God to take
away both John and Ann under age {that was under the age of twenty-five, which
the testator had fixed), or without issue, then to Jo-seph ~ ~ e s ~ r ~John, a n .to
whom the previous estate tail had been given, attained the age of twenty-five, and
then died without issue; he had had issue, but the issue had died during his life,
and it was held that the devisee over was entitled ; that the word OF must haye
its natural meaning. The estate was given to John and the heirs of his body ; and
if he died under twenty-five, or without issue, over to Joseph ~ ~ e s ~ r m aThe n . argu-
ment there was, that or was to be altered into m d ; and that, inasmuch as John had
attained twenty-five, there was no gift over to. Joseph Westerman. The Court of
Exchequer, after a very elaborate argument, and after fully considering the case,
was of opinion that the natural m e a ~ i n gwas to be given to the word or, and that the
rule as to construing o r as meaning a.nd could not hold universally. The testator
having said, I give the estate to John and the heirs of his body ; but if he dies under
twenty-five, OT without issue, i t is to be given over, and he having died without, issue,
the Court held that that gift over was therefore to take effect. I confess I do not see,
though that case was pressed upon us by Alr. Walker, in [87] his able argument at
your Lordships bar, as an authority, that it would have shaken me in the opinion I
have formed. I confess it dow not a t all produce that effect; on the other hand, it
rather appears to me to confirm the view E hare taken, as showing that the ordinary
meaning of words is, if possible, to be adhered to.
My Lords, it remains only to advert to another argument; the ground, I believe,
on which Vice-Chancellor Turner decided Che case. I have not seen a report of the argu-
ment before ViceXbancelIor Turner ; but I think it was stated t o me in the Court of
Chancery that Vice-Chancellor Turner took the same view that I did as tct.the general
~ o n s t r ~ c t i oofn the devise, though not as to the ~ e n i l i n wtate.
~~n
[Mr. Walker.-He did not give any distinct opinion upan the point as to the ISeni-
lington estate ; he merely said that there might be great d i ~ c u l t yas to that.]
The Lord Chancellor.--Nle was of opinion that ~~~~~~~e via data this astate
was to go over to the ultimate devis-, for that there was, as to the estate of Stainton,
a direction that in case the grsndson died under the age of t ~ e n t y ~ years n e there
was to be a life interest given to his parents, which never twk effect, because that
life interest expired in the lifetinie of the grandson; and then there was a direction
given, and, subject to the trusts hereinbefore thereof declared, the said messuage
and farm st Staintan aforesaid shall be in trust for the Damells, the persons nom
litigating this case. Then, in the devise of Hemlington, there was a declaration that
1226
 GREY 9. EA^^^ [I8571 VI R.L.G., 88

if Robert, the g r a n d ~ n ,died under t~enty-one, rmd ~ ~ i t h o uissue, t it was to

go to Ann and the heirs of her body. But that, in case &e should die
under twenty~ne, and without issue, then &e same trusts as are here-
inafter declared as to Strainton shall take effect as to ~ e m l i n ~ o n .Naw,
~ i c ~ C h a n c e ~Turner
~or [Bs] thought that carried the ~ e ~ l estate ~ n as ~ n
well as the Stainton estate. I had occasion to consider this point when the case
was before me, and I have cons~deredi t since; but I cannot see how that ultima^
l ~ m i ~ t i oasnto Stainton can by any p ~ s s i b ~ l ibe
t y a p p ~ ~ c a bto
l e ~ e m l i n ~ obecause
n,
the l ~ m ~ t a t i o nass to Stainton are only to be applied to ~ e m I i n ~in~case n Bobert
and Ann both die under the age of twei~ty-oneyears and without issue. In neither of
those two cases did the contingency as ta dying under twenty-one happen, md there-
fore the same principle which induces me to say that there was no gift over after
the death of Robert ~ a ~ o when e d age of twenty-one) induces me also
n , he a ~ a ~ n the
t5 say that there is no d ~ ~ a r a t ~ino the n will that the ultiniate trusts of ~ t a i n ~ ~ n
shall be a p ~ l ~ cto~ ~l e e ~ i n ~ ~ .
For thcse reasons, it i s my duty to move your ~ r d s h i p that s the j u d g ~ e n below
t
ord St. ~ e o n a r d s . ~ ~ y in this case I have the m i s f o ~ ~ u ntoe differ from
Lords,
d learned Friend who has just spoken, and from my noble and learned
Friend on the opposite side of the House; and as I thought it necessary, in order to
be precise, to write, ( t ~ o u gI.~ami IittIe in the habit of 80 doing)) after the argument,
what my opinion was in this case? I shall now take the liberty of reading what I
wrote, Both my noble and learned Friends have had, I will not say the advantage,
but the o~portunity,of reading what I wrote, and which I am no* about to read to
your Lordshipe.
The legal fee-simple in this case i s given to the trustees upon the trusts after-
wards declared of the same. Upon the whole of the will 1: have arrived a t the con-
clusion that the t e s ~ t o xintended to dispose of t,he equit~bl5 ~ $ i m p l eand , aot to
die in testa^ as to any portion a it. There is [89] no ~ ~ d devise, u aunless ~ the
declarations of trust, to which I shall p r ~ e n t l yrefer, operates in effect as such.
Looking a t the provisions in the will, I am satisfied that the ~ s t a never ~ x intended,
in any event not unlikely to happen soon after his own death, viz., the death of his
grandson, Robert, after attaining twenty-one) but without issue, to allow his estate-
t o descend to his son in fee. If the will is open to that construction, it must be that
the e x p ~ s i o n which
s he has used fail to give effeet to his intention.
The first trust is (subject to the direct~onsto raise annuities and a contingent
legacy) for his grandson, Kobert Watson, and the heirs of his body; an equitable
estab tail by apt words of l i m i t a t ~ oj but
~ in case he shall die under twenty-one, artd
without issulj, then a part of the estate is to be in trust for his g r a n d - d a u ~ h t ~Ann ry
Watson (Roberts sister), and the heirs of her body; and in case she should die
under twenty-one, and ~ ~ t h o issue, u t over. And the testator directs the trustees, out
of the rents, to raise during the i n f ~ n c yof his grandchi~drenr ~ p ~ t i v e l ysuch ,
maintenance ~K~oney for them as the trustees should think fit.
Xow, to stop here. Robert died ~ ~ ~ t h issue, d e n ~ y ~ n so
o u t but a t ~ a ~ n et w e ; that
he did not die under twenty-one, and without issue. Did then the devise over to
Ann take effect? The devise of the equitable wtate wa.s clearly to Robert in tail j
and no c o ~ ~ s t r u c t ~can
o n be put upon the devise which would narrow o r restrict his
estate tail. No one can take under the will until that estate tail i s e ~ h a u s t eby ~
Roberts failure of issuey whenever that might happen, without rderence to the
period of his death. So that the c o n s t r u c t i ~of~ ~the gifts over i s wholly ~ i ~ ~ a t , e r i. ~ I
LO. Robert and h i s issue; it i s only material as htween the and-daug~~ter Ann and
the heir-at-law of the testator, Anns father. If the first devise had been to Robert
in fee, it is clear not only that the word amd I could not be read OT; but that if
the disjuncti~econjunction had been used [SO] by the testator, the conjunctive one
would have becn i n t r ~ u c e din its stead ; because the testator coufd not be u n d e ~ t ~ d
to mean to give the estate over from his first deyisees childr~n,in the event of his
dying under twenty-one, leaving c h ~ ~ d;rand e ~ yet they could not be e n t ~ ~ l eifd the
estate went over in conse~uenceof his dying under ~wenty- one^ without regard to his
leaving issue behind him. In such cases, therefore, the Court does more than reject
a word, for it s u ~ t i t u one t ~ word for another, and, indeed, one that is directly
opposed in its import to the one which is rejected, It is owing to the infirmikv ~f
t 221
 VI H.L.C., 91 GREY v. PEARSON [1857]
our language that we have no word to express in a combined sense the two conjunc-
tions or and and. In devises, where the first taker, although confined by the testator,
in words, to a life estate, has been held to take an estate taiI, under a subsequent
gift to the heirs of his body, the Courts have disregarded words annexed to the
words, heirs of the body, such as that they were to take as tenants in common,))
in favour of the general intention. Upon the whole will the paramount interest is
regarded, and directions contrary to that view are, in effect, struck out of the will.
So when the testators intention is clear, but he fails in words to provide for the
precise event which happens, the Courts wpply the words. For example: a gift to
a woman during her life, if she shall so long continue his widow, and, in case she
marry, to A. in fee, he will take upon either the death o r marriage of the widow.
In the case of Newburgh v. Yewburgh (Law of Real Property, 367)) i n intro-
ducing gifts over in a will by a n enumeration of the estates, the estate in one county
was, by mistake, struck out by the conveyancer, in settling the draft; and an attempt
was made, but failed, to be allowed t o prove tlie mistake by parol evidence, and to
have it corrected. When the case reaahed this House it was ultimately decided that
the [Ql] clause in which the county was omitted might be rejected, or the missing
county be considered as inserted in it, so a8 to give all the estates over to the countess
for life, upon the evidence furnished by the context of the will of the intention of the
testator (see Langston v. Langston, 2 Clark and F. 194. 239 e t seq).
Where the expression is in a gift. over in case of a death without being
married, i t has, in favour of the intention, been construed I without ever having
been married. Bell v. Phym (7 Ves. 458).
I will not multiply the instances in which words have been rejected, or altered, or
supplied in a will, in order to give effect to the clear intention. But, as a general
rule, words should be received in their natural grammatical import, and effect given,
if possible, to every word in the will.
Now in this case the primary intention of the testator was to give an estate tail tcr
Bobert; and I hold that we are no&a t liberty to cut down or affect that gift in any
way. And this at once removes the difficulty whetlier the first devise i s to take place.
The gift over is i n case he die under twenty-one, a n d without issue. It is argued
that you cannot simply read or for a n d ; fo-r if you did, and Robert died under
twenty-one, leaving issue, such issue could not take, and that would defeat the
declared intent of the testator. It is argued that you must provide for the naked
case of his dying under twenty-one, for you cannot reject those words as surplusage,
or add to them. You may not, it i s urged, read them as a gift over, if he die under
twenty-one, without issue.
Now, in my opinion, the testator intended what he has clearly expressed, that his
grandson should take an estate tail; and I think that he meant, what is not clearly
expressed, that the estate should go over if his grand-[92]-wn died at any time with-
out issue. The reason why the age of twenty-one was introduced was, I think,
because he did not intend the grandson to take the estate itself, that is, to enter into-
the enjoyment of it until he attained twenty-one; for the legal estate was in t h e
trustees, and they are to supply mainteaance for the son, whilst under twenty-one,
out of the rents. He intended therefore to give the estate over in case his grandson
never, in his view, became entitled to it, viz., if he died under twenty-one, but still
not unless there was a failure of issue. And he also intended it to go over if his
grandson did attain twenty-one, and enter upon the enjoyment of the estate, but
should afterwards die without issue. And I think that we are enabled by the rules

of law to give effect to that intention.

The first case cited at the Bar, Soulle v. Geward (Cro. Eliz. 525; S.C., nom,
Sowell v. Garrett, Moore, 422)) was decided when executory devises were not allowed;
a fee could not be mounted on a fee ; but still the case is instructive as to the way in
which we are at liberty to deal with that which is now before us. The devise was to
the testators son, Richard, in fee, and if he died within the age of twenty-one o r
without issue, then the land should be equally divided among the testators other
sons. Richard died within age, leaving issue. Anderson, Chief Justice, said that
if the limitation had been single, viz. if he died without issue, etc. it was an estate
tail, and explained the former liniitation. And he conceived that this part of the
limitation, if he die within age, was utterly void ;for a remainder could not depend
1228
 GREY w. ~ E ~ [I8571
R ~ o ~ vx H.L.C., 93
upon a fee, and then it is all one as if the limitation had been single, if he die wit&-
out issue, so Richard had an estate tail. ~ ~ l a l m s ~
Justice,
e y ~ agreed, and added that
if the remainder might pass upon his dying within age, yet it could not be until
he died without issue also; for the words being if he died witbin [%I age? or died
without issue, then, etc. j this, then? which shows the beginning of the remainder
shall be when he dies without issue, and not before; so it is all one as if the dis-
junctive OT had been a copulative. Bcarnond and Owen, Justices, agreed, and the
latter added that i f the remainder might commence upon the first limitation, yet
it ought noh to commence by the words and intent, until the other part be per-
formed also, viz., that the devisee died without issue.
This is an i n i ~ o ~ aauthority,
nt for a ~ ~ ~ it~ would
u g hbe decided d i ~ e r e n t l ynow,
h m e i T n c i nvmrttnm r7tin;nna &th;n drza I;mi+a (ira n o l ; r l no+ ;t nhnmn +ha+ nrhnaa +ha

yet a deatlz under twenty- on^ will. not carry the estate over, unless also there is a
failure of issue, and if n ~ e to sthis~constructio~i,~ the words if he die under
twenty-one may be rejected, and still farther, that or may be read m d , and yet t.he
estate will go over if the first devisee die .cinder age? leaving issue.
~ ~ u v. ~~ ~ ~ a(2 Yern. r ~ ~388) is~ also an ~authority
0 bearing
0 on this~case.
The devise was to the ~ s t a t o r schildren, as tenants in common in tail, and if any of
them should die before twenty-one or unmarried, his p a r t should go over to the
survivors, Chief Justice Holt held that one dying u ~ ~ ~ a r rthough i ~ d , he attained
twenty-oi~e,his slyare went over. If the death had been under twen~y-onei,but the
devisee had married, the estate, I ~ p r e ~ i e n drpould
, not have gone over, so as to
defeat any issue of the devisee, tenant in tail; so that Wolt appears to ha-i-e held that
the words shall die before twenty-one were immaterial^ and [94] the estate would
go ever whenever the devisee died unmarr~ed.
This brings me to the case of ~ r ~v. ~~~a~~
~ ~(2 Ves.
~ 243-247),
~ ~which~was ~ ~
so much discussed a t the Bar, and I niust n6t;bo;ut reserve say that 1 consider it a
binding authority, and I entirely subscribe to Lord ~ a r d ~ c k doctrine e~ in it. I
cannot upon any sound ground distinguish i t from the case now before the Ilouse.
The estate its devised to trustees and their heirs, ta receive the rents until John
Brownsword should attain twenty-one, in trust, to place them out t o improve the
estate ;and if he should live to attain twenty-one, or have issue, then to hini and the
heirs of his body ;but if he should happen to die before ~wenty-one,and without issue,
then a like gift to a femafe child, etc., and over just in the sanie way. The children
were cons~deredto be the testators legitin~ateoBspring ; John attained twenty-
one and died without issue. It was said that this case differs from the one under
appeal, inasniuch as the former was a gift upon a c~ntingency,whilst in the present
an estate tail i s a t once given; but if that difference has any weight, I think that it
i s in favour of the Appellants. Lord Hardwicke relied upon %hegift being in tail,
and upon the plain intention of the testator to give it over and not t a let in the
teatators right heirs; he held that John took an estate tail when he attained twenty-
one, and that he would have done so had he had issue, though he had died before
twenty-one ;the ~ n s ~ r u was n him an wtate tail in either event. As to the
~ ~too give
subsquent words in the construction of wills, he said, the Court has construed ((

the wards confor~abIyt o the i n t a t of the testator, as much as possible, ranging in

26 different order and transposing them to comply therewith; but in that case there
was no suck necessity [95] (this was what Lord Rardwicke said), f o r them was a
plain natural construction upon these words, viz., if John shall happen to die before
twenty- on^, and also shall happen to die without issue, which construction plainly
makes the dying without issue to go through the whole, and fuUy ansrers the intent
which. was in that manner ; Lord Hardwicke added that an estate tail i s capable
of a remainder, and it is natural to expect a remainder after it.
It appears, therefore, that in a case I think more difficult to manage than this,
Lord ~aKdwickeafter an estate tail read the words if John should happen to,die
before the age of twenty-one years, aad without issue ; thus, If John should happen
to die before twenty-one, and [also shoufd happen to die] without issue. Tbis
effected t.he intention of the testator by plainly construing the words dying with-
out issue to go thro3gh the whole sentence.
1229
vi E.L.C., 96 GREY U
. PEARSON [1857]
This construction I am prepared to adopt;, and to apply it to this case; Lord
g ~ may be done in favour of the
c ~ enot convert and into or, a l t ~ o u that
~ ~ a r d w i did
n as or may be read and when the intention requires it : Bell v, P~~~
~ n ~ n t i ojust
(7 Vw. 458). It is said that the constructian in ~ ~ w v. ~~d ~ ~~a gave
r d~sno ~
effect to the words die under twenty-one, but full eEect was given ta them. by
reading them as connected with &e s u b s e ~ u e nwords, ~ without issue; and it i s
no objection that by this construction the words give no additional force t o the
devise, for the construction does, taking the worda altogether and giving full
effect t o them all, effectuate the clear intention of the testator.
The later case of Doe v. Jessep (12 East, 288) may be considered as similar t o the
one before this House, and the Court of Kings Bench, not in words overruling the
well-considered [96] case of B ~ w s w o r dv. ~ d ~ ~decided, r d ~ in, direct opposition
to the principle upon which it was d e t e ~ ~ n ethat d , and was to receive i& natural
construction, and, therefore, that although the first devise was to an infant in tail,
get the gift over, if he should happen to die under twenty-one and without issue,
required both events t o happen, and the devise over was held to fail as the first devisee
~ ~ ~ a i twenty-one,
ned a l ~ o u g hhe died without issue. My noble and learned Friend,
the Lord Chancellor, Considered that he had to elect between Lord Rardwickes
decision and tAhelate decision of the Court of Kings Bench, and he felt himself b u n d
by the latter. The cases were well calculated to embarrass tha court, but now that
the case had been more fully considered, I think that your Lordships will be inclined
to support the earlier authority. Mr. Fearne, who refers carefully to Brownsword
v.&dwards, treats it as a clear authority (Cont. Rem. 374; Exec. Dev. 142). The
case of Doe v. Jessep was hastily decided and not well considered. Independently
of what must occur to every one who reads it, and which has been pointed out by my
noble and learned Friend, that the d ~ s t ~ n c t ~thereo n drawn by Lord E~lenborough
i s one that cannot be ~ a ~ n t a i n ef odr a m o ~ e n t ,I say ~ndependentlyof that, the
Judges of that Court actually decided this important point of law without hearing
both sides, and their reasons show that they did not accurately distinguish between
cages where the first devise is in fee, and the case before them, where the devise was in
tail. This is proved by what fell from two of the learned Judges during the argu-
ment. I n delivering judgment the Chief Justice thought that no i n c o n v ~ ~ e n c e
would onsue by construing the word a d in ita natural sense, 80. that he considered
it unimportant that the gifts over were all destroyed by this construe-[973-Lion. Le
Blanc, Justice, said that the case was so far distinguis~iablefrom ~ T O w ~ ~ ~ uv. O r d
Edwards [2 Ves. 243, 2471, that there the word and was construed or (which we
have seen was not the case), (to prevent the working of an injury to the issue ; here
and is required to be construed o r in order to work the very injury, to avoid which
in other cases the courts have construed o r to be and. Then reading it in the natural
sense of the word, t>heson having attained twenty-one, the limitation over, which was
only to take effact if he died before twenty-one arzd withouti issue, was defeated.
Bayley, Justice, added, If the son had died under twenty-one, letwing issue, the
construction contended for by the plaintiffa counsel would have Keft the testator
intestate as to such issue, which was clearly against his intention. These observa-
tions prose that the real nature of the case w w misunderstood; for, as the first
devisee hi& n n estate t d and not an estate in fee, the G o ~ s t r u c t ~adoptedo~ by
Lord Hardwicke would not have defeated the issue in any case which could happen ;
I submit, therefore, to your Lordships that the case of Doe v. Jessep [12 East, 2881
cannot be relied upon as an authopity.
It so happened when the case now before the House was heard upon appeal in the
Court below, that the authority of Brownswol-d v. Edwards had recently come before
the Court of Exchequer, in the case of Mortirner v. Hartley (6 Exch. Rep. 47) and, in
an elaborate written judgment delivered by my noble and learned Friend opposite,
Browmstuord 77. Edwards was recognised as a clear binding authority ; and Doe v.
Jessep, which had been relied upon in the argument, was manifestly passed over as
of no weight. It unfortunately happened that thi5 case was not referred to before
my noble and learned Friend the Lord Chancellor, and he had not therefore the
benefit of the opinion of the Court of Exchequer.
E983 In the case in the Exchequer, after successive estatw tail to zb son and
dau~hter,the testator declared that if both of them should die pnder twenty-five, OT
1230
 GREY 9. PEARSON Cl8571 VI H.L.C., 99

without leaving lawful issue, he gave the e a t e t~ his brother in fee. The second
devisee in tail died an infant, and without having been married. The first devisee
~ died without issue. The Court of Exchequer relied
in tail attained t w e n t ~ f i v eand
upon the first gift being in taiI, and, acknomledging ~ r a ~v. ~war^^ ~ i[2 Ves.
~ ~ o ~
243, 2471 as a binding authority, followed it strictly, and read the words as they mere
found, ~ecause,by that con~ruction,in the event which h a p ~ e ~ ~ the
e destate would
go over to the brother according .to the testator's intention. But they observed, that,
i f in the case before them any change in the ~ a n ~ u a should ge be made, the one which
would be M I O S ~likely to effectuate thc intent of the testator, would be to read the
words as if they had been, ('and if John and Ann should die under age or at amy
lime without issue.'' By so reading them the isme would take if their parents died
under twenty-five, and the brother would succeed on the d e t ~ r m i ~ ~ t of i o the
n estate
tail. But if this could not be done, they thought they ought to make no change a t all.
They did not, therefore, as the event did not require it, construe the words as em-
bracing every event w~thoutvarying them ; but they clearly i n t i ~ ~ a tthat ~ d they
would have fully followed out the decision of Lord Hardwicke, if the circuinstances
had required it. I n e 4 not say that I now entertaii~great doubt what that decision
might have been, because my noble and learned Friend opposite now thinks tbat
this case below was r ~ ~ hdecided. t l ~ Ne of course could not have been aware of the
c o n s ~ r ~ c t i owhich
n I have now put upon the judgment xhich was delivered by him
in the Court of Exchequer.
iMy Lords, as I understand, the ground upon which the appeal is now to be dis-
missed, i s one that really goes back [99] bo ~ ~v. ~ a ir g U(2 ~rBos. and~ P., ~ ~
N.R. 38). My noble and learned Friend, as I understood him, of course not over-
ruling it, because it is impossible to do so, (it is the established law of this country,
and we have not the power to overrule it) ; but giving an opinion that if that cme
were now to be decided, he should be inclined to come to a different decision, and
relying simply upun the wosds of the devise, not to give effect to the gift urer in a case
very likely to happen, and which n o b ~ ydenies that the testator i n t ~ ~ d to e dpro.ride
for. That would bring us back t~ a rule of law Thich I believe, as I understa~~d
the la;^ at present, does not exist. Nobody is more disposed than I am to abide by
clear words, and to give t o them their natural and grammatical meaning; but I
never did, and I never can come to this conc~usion,that the words of a will cannot
admit of modification according to the real intention of the testator, as you find it
from other e~pressions,or from the whole contest of the will. It i s d i ~ c u to; ~ tlay
down any abstract rule upon the subject, but where I find the intention and I find
words pointing out the intention, and that if I give to the words their simple ~ e a n ~ ~ ~ g
according t o g r a i ~ ~ m aandr according to their plain p r i m f a c i e import, I defeat
the intention, I hold that I am bound by every rule, both of law and equity, to see
whether I cannot give to thein, by natural. construction, an import which will
effectuate and not defeat the intention.
Now take f,he case of ~ ~ ~ v. r or^^. ~ e There Z ~ one w ~ r dwas subst~tutedfor
a~oth%r,and &e vrord ~ u b ~ is~directly t u ~ oppo~itein meaning to the one for
which it is ~ u ~ That
~ i s~the ~ Iaw ouf this~ country,
d ~decided in this EZouse, and
which has been followed ever since, and no one doubts it. There, so far froiii
giving the words their natural meaning, this Nouse feIt itself at Iiberty to [1QOj
change the words. The testator had oxpressed whab he meai~tin case two events
should happen, using the disjunctive conjunction or, instead of the copulative a d .
You s d d he could not mean that. Be had given an estab ia fee, and that est-ate
would go over if the party d i d under twenty-one, unless you altered the word.
Then you took the liberty of dtering the word by ~ n t ~ o d u c i another K ~ ~ ward, in
order to do that which this House, as ~ t judicial
, tr~bunal,and every other judicial
tribunal is bound to do, namely, in order to effectuate the intention of the testator.
It appears to me, t'hereforel, I confess, that the dcoision in this case ad1 go very
far, I will not say to overrule ~~i~~~~~ v. ~~~~~~~2 I 2 Bos. and P,, N.R. 581,because
it. cannot be o v e r r u ~ ~but , to shake the ~ r ~ n c ~ of e It mill lead to simply
p l it.
looking at the words superficially, in order to ask '' what do the words niean? we
will abide by the words and take them 8s r e find Qiem.'' Now that would, no doubt,
avoid a great many difficu~t~es; but I confess I do not think that that is a rule by
which we, as a judicial tribunal, should be guided. I can only sap, therefore, with
1231
VI H&C*, 101 GEEY ?A. P E A ~ S Of1857]
~

great respect for nip noble and learned Friend, that I entertain as clear an opinion
as I ever did in any case, that according to the true construction of tho rule of
law as app~iedto this case, the gift over is a perfectly good one, and that it falls
directly within the a u ~ ~ ~ o rofi t~y r ~ ~v. ~~ d ~~ u ~? And -s ~ I~never
. o can
r press
~ too
much upon your L ~ r d s h ~ p sat~ention ' that the whale dependa upon the first gift
being in tail, not being in fee, and that, therefore, we are at -liberty, without affect-
ing in any manner the estate given to the first devisee in tail, to read the words
i ~ gift over without violence a t all, By a natural, rand, I think, an
i ~ i t r o d u c i ~the
easy co~istr~ictio~~, adopting the rule laid down by Lord Hardwicke, we are a t
liberty to gire effect to the gift over. That case, npon that very e~aboratejudg-
Inent, was for many years cons~deredan author~ty. &fr. Fearlie treats it as such,
and [ l O l J speaks of it without intimati~gthe slightest doubt or hes~tation as
to its being law. And then, with regard to the case of Boe v. Jessep [12 East, 2881.
We cannot read without respect the mmas of the very learned persons by whom
that case was decided j but, seeing th6 way in which it. was decided, and the evideatly
n ~ i s t ~ k ereasons
n tlrat were given for the decision, I cannot think that that is ;trf
~~uthority which can overrule the ~ ~ r e ~ l " c o i ~case s ~ d oe fr ~ ~ ~ v. ~~ d w~ ~ ~~ ~ s
And a l t l i o u ~i t~ is ~ true, as my noble and learned Friend has remarked, that Doe
17. Jessep has been decided a good many years, I must observe that ~ ~ ~ v. ~ ~
Zdwcirds was decided a good many years before that., and I have no hesitation in
saying Chat i t i s entitled to much greater weight as an authority.
Then, my Lords, considering, as I must consider, the matter in the way I have
s ~ b ~ it~to ~your ~ Lordsliips,
~ e d and which I Eiave done in ~ustificationof the opinion
1 ~ n t c r t ~ i andn , in order, so far as any s t a ~ m e n t of s that opinion can go, that the
law may be kept, NS far as may be, within the course in which i t has usually flowed,
I come to the second question, rand upon that I have an ~ u a ~ clear l y opinion, unfor-
t u n ~ ~ ~ edl y~,~ e r i nalsog from that of my noble m d learned Friend. I did not
understand, in listening t G niy noble and learned Friend's ~ x ~ ~ a ~ a tand i o nI, do
not at this moment understand, where i s the d~stinctionbetween ~ e m l i n ~and n
~ ~ ~ I will ~ nread~to your
~ nLordships . what I wrote upon this point.
B u t if I am wrong as to the operation of the devises, the question then arises
whether the two estates, by force of the ultimate trust, do not go over to the Dai,nells.
The ~T~ce-Cha~icellor decided that they did, and did not give any o p ~ n ~ oon n the
point. of law which I have already considered. I have seen a s h e ~ h a n d - w r i ~ r ' s
note i f the judgment of the ~ i c e - ~ ~ ~ a n c which e l ~ o rappears
, to me to be an iinperfect
and incorreot report of what must have fallen from [lWJ that learned Judge. Xy
noble and learned Friend held that the Stainton estate did pass to the Darnellr~
under the ultimate trust, but that the ~ e ~ l estate ~ n(which ~ ~alson 1s in the parish
of S t a ~ i ~ ~ did o n )not, but dascended to the heir-at-law. He exprmsed considerable
doubt upon each point, but felt himself bound to defwt what, as it appears to me,
was the ~ s t a t o r ' s~ntei~tion.
In coi~s~dering this point, we assume that the lim~tatjonsover were e o n t i ~ ~ e ~ ~ t ,
and that the contingency did not happen. Sow in that view the case stands thus;
and perhaps we shall more readily a p p ~ h e n dthe point if w e put the trusts of the
t ~ estates
o in j u x t ~ ~ ~ o ~ i t iFiiat,
o n . the two estates are given to Robert and the heirs
of his body, "But in case he shall die under the age of t ~ e ~ t y - o n and e, ~ ~ t ~ o u t
issue,"
The ~ e m ~estate ~ bet inotsust
~ ~is to ~ And the Staiiiton estate to be in tmst
for Ann Watson, and the heirs of her body ; to pay the rents to his son Richard for his
But In ease she shall die under twenty- life, srrbjejeot to conditions ;
one, at& ~ ~ r ~issue, t h upon
~ ~ such
~ t and the And after his decease, or other sooner
same trusts as are herein~ftesdecIared of detey.m~natio~~ of his life interest,
my fxxn a t Stainton aforesaid, viz, : In trust to pay the rents to Richard's
To Richard for life, he. R e ~ a ~ n d to e r wife during her ~,idowhood;
his wife during ~ ~ , ~ d o u r'(And, h o ~ , sribject I' And, subject to the trusts herein-

t o the trusts herei~ibeforethereof declared, before thereof declared, the same farm
the same shalI be '' shall be
In trust for the three ~ ~ a n ~ e ~ lasd r e nIn triiat for his three ~ r a n d e ~ ~ l d(the ren
tenants in comuion, their heirs and assigns Darnells) as tenants in common, their
for ever. respective heirs and assigns for ever."
1232

I"
 GREY v. PEARSON Cl.8571 VI H.L.G., 108

So that, in the even& provided for, tIie two estates o r i ~ i - [ l ~ 3 ~ igiven ial~~to~
Robert would be r ~ and gou tcp rhe ~Darnells.~
It admits itf no doubt that the ultimate trust of &e Stainton estate must be
added to the previous declared trusts of the Hemlington estate. It seems di&cuIt to
maintain that the same trust of both estates will not, if the events happen, carry
over both of them. The S t a i n t ~ nestate was held to go over on solid grounds. The
ultimate trust, being subject to the trusts ~iere~nbefore declared, carried every
interest which the testator had not before parted with. The devisees, of course,
took subject to the contingenci~and atate@,whatever they were, before declared
or given; but they did not take upon the contingencies, or, in other words, their
remainder in fee did not depend upon the1 contingency taking effect. If, as the
event happened, it failejd, but the prior estate, as the event also happened, also failed,
they would take. The ultimate devise was, in eEect, a devise of all the t ~ s t a ~ r s
r e m h i n g interest in the estate, so as wholly to exclude the Iieir-at-law.
Now we have seen that the devise of the Stainton estate was in case Rob&
should die under twenty-one, and without issue. That was a c o n ~ ~ n ~ c which n c y we
assume never ~ a ~ p;yet e nthat y held not to override the ultima^
~ c o n t ~ n ~ e n cwas
devise to the Darnells. Therefore-, the c i r c u ~ s t a n c ethat the gift over was the last
in the series which followed the expression of the contingency upon vhich the estate
was given over, did not operate to cmfine this clltimate gift like the gifts which
precede it, to the ~ a p p e n i n gof the continge~~cy.
What, then, IS the distinction between the ultimata gift of I-Ieinlin,$on and the
ult~mategift of Stainton? The gifts over, in the first instance, were botk upon a
contingency, and upon the same contingency, viz., Boberts death E1041 under
twenty-one and without issue; and that contingency, although it was held to have
failed, did not prevent effect being given to the ultimate gift to the Darnells. Now
the only disti~ic~ion as to H e m l i n ~ nis, that after an estate tail in Ann, the like
condition is repeated, viz., in case she shall die under twenty-one, cmd without isme,
and that, I assume, failed like the former one to take effect. But this co~tingency
was held, upon appeal, to govern tlie trust for the Darnells, and to make it dependent
upon that contingency, which not having ~appened,the trust failed, and the estate
went; t5 the heir-at-law, but the Eke contingency as to both estates was held not to
affect the ultiniatc? trust a t Stainton. If, thorefore, both estates had been given to
the son and his wife, and then to the Darnells, they would have taken both, as they
have taken one of them, n o t ~ ~ t h s t ~ nthe had not happened. This,
~ i ncoiitiiigex~cy
g
I think, was rightly decided.
The simple ~uestioiithen is, whether the ~ n t r o ~ ~ ~into ~ t i the
o n trusts of Hem-
lington of snotlier limitation, with a contingent gift over in all respects similar
to the one, and with the like contingency, which preceded the gift of Stainton, can
vary the construction? Now, can it matter whether there be one contingent gift
over, or two such giftat In either case the giftx follow =acontiii~e~icy ; but that
does not affect the ultimate trust, because it i s not dependent upon any c o i ~ t ~ i ~ g e n c y ~
but is only subject to the trusts before declared. The construction wouId be the
same if twenty different contingencies had before been provided far. I should hold this
o p ~ n ~ oifn the gift cyf ~ e ~ l i stood n ~ alone;
n but 5 consider the decision as to
the Stainton s t a t e , of which I approw, as an authority for the like ~oiistructionas
to the Iiemlington estate. I could not hold that the ultimate trust of tlie latter
estate took effect, not withstand in^ that Robert attained twenty-[lo61-one, and yet
wag pre~entedfrom having that operation, because Ann attained twenty-one. To
sustain that view we must, I think, overrule the decision in both of the Courts below
as to .the tainto on estate ;and that I am not prepared to do.
Now I ani bound t o add, though I have great respect for what has fallen from
my noble and learned Friend, I cannot see the distinction he draws between the
two estates. 1 understood him to say that there were two contingencies ; but I have
not heard any distinction as t o the general effect of a gift over being open m a
different c o ~ ~ s t r u c t ~according
on to whether there be one contingency or two con-
tingencies. &)necontingency has been held not to affect the gift orer, subject to
the trusts before declared. You take e v e r ~ ~ i i nthat g is not disposed of. Two
~ o n t ~ ~ ~have g e been
n ~ held
i ~ to prevenb the estate f roia going over, yet it i s given in
exactly the same words, subject to the trusts before declared. Therefore, although
1233
V I H.L.C., 106 GREY U. PEARSON [I8571
1 have no doubt I ani wrong, because both my noble and lmrned Friends think so,
fox they have seen what I have written, and of course it hw failed to make any
~mpressionupon them ;yet I must say, that, having sarefully considered this case,
I am uthr1y unable to se0 where my reasoning is wrong. Of couiwe the decision of
your Lordships will be against the appeal, and will aBirm the decree below.
Lord Wensleydale.-My Lrords, I have paid the closest attention to this case,
and to the arguments a t your Lordships Bar, and also to the apinion of my noble
and learned Friend opposite, the not@ of which he had the kindness to com-
municate to met a few days ago. I have fully considered the reasoning on both sides,
and have determined that E ought to concur i n recommending your Lordships to
aErm the order of my [I061 noble and learned Friend on the Woolsack, though
with the hesitation that any one must naturally feel when such authorities disagree.
.I think that my noble and learned Friend on the Woolsack was right i n the oon-
htruction which he put upon the clause in the will on which the case depends. I
have been tong and deeply impressed with the wisdom of the rule, now, I believe,
a ~ l ~ at feast i n the Courts of Law in ~-estminsterEaE, that in con-
u n i v ~ ~adopted,
struing wills ~ n indeed
d statutes, and a11 written ~ns~ruments, the g r a ~ ~ a t i c a l
and ordinary sense of the words is to be adhered to, unleas that would lead to some
absurdity, r)r some repugnance o r inconsistency with the rest of the instrument,
in which case the grammatical and ordinary sense of the words may be modified, so
as t o avoid that absurdity and inconsistency, but no farther. This is laid down
by Mr. Justice1 Rurton, in a very excellent opinion, which i8 to be found ixi the case
of Warburtors T . Loveland (see ante, p. 76. n.).
The elxpression that the ruIe of construct,ion is t o be the &tentkm of thel testator
is apt to lend into error, because that word is capable of being understood in two
senses, viz,, as descriptive of that which the test%tor intended to do, and of that
which is the iiieaning of the words he has us&. The will must be in writing, and
the only question is, what is the meaning of the words used i n t h a t writing. To
ascertain whictr. every part of it must be censidered with the help Df those surround-
ing c ~ r c u m s ~ n which
c ~ , are ~ d ~ i s s i inb ~evidence
e tn explain the wclrds, and put
the Court as. nearly as p ~ & b l in e the s i t u a t i ~ naf the writer of the i ~ i ~ r ~ e n t
according to the principle laid down in the excellent work of Sir James ~ i g r on a ~
that subject,
Adopting that rule, I think that thB words af the clause [107] in question ough6
to be read in their ordinary sense, viz., that the trust estate was to go over, in the
double event of Robert Watson dying before twenty-one, am~3without, issue, which
event, not having happened the limitation over would not take effect. It cannot
certainly be said that such construction would lead to, any absurdity whatever, nor
to any absolute incoi*sist~ncy with the context. Wha &hallsay that t b testator might
not have thought, that if Robert attained twenty-one he would be able to cut off
the entail, and provide for his family, and rn no ulterior limitation would be
neceissary? If the words were quite clsar we could not alter them, i n order to carry
into effect what might reasonably be conjactured (but it would have been conjecture
only) to have been the design of the testator. If, or instance, the words had been
or should die under twenty-one withwt issue, instead of the word and. they
could not have been u n d e r s ~ o din any other sense, and the limitation over would,
in the event which has happened, have been defeated.
The whole difficulty i n this case arises from the expression, but in case her
shall die under the age of twenty-one years and without issue, which expressions
are capable of being read as similar expressions were by Lord Hardwicke in the case
of Brownsword v. hdzoards (2 Ves. Sen. 247). And the simple question is, whether,
in this case, we are bound to read the words in the same way as was done in thah
case.
Now I zllust say that h a h g heard the observations of my nob!o and learned
Friend Qpposite, so fully, distinctly, and clearly stated, I have had great doubt as to the
propriety of ihe opinion I have formed; and with the high respacl I feel for his
opinion, I have hesitated in coming to [ZOS] a conclusion a t variance with it. But
the principle of c o n s t ~ c t i o nwhich I have laid down is in my mind of such para-
mount cons~uence,that I think it much more i m p o ~ a n tto adhere to it than to
follow the au~liorityof the previous dwision of Courts upon words in other wills
1234
 GREY V. ~ ~ [1857J
A ~ SVI fl.LtQ,
~ 109 ~

resembl~ngthose U in the present. We are 5ound by decided cases, f o r the

sake of securing as much c e r ~ i n t yin the administration of the law as the subject
is capable of. But when the dsision i s not upon trome rule or p r ~ n c ~ pof l e law, but
upon the m e a ~ i ~ofg words in instr Ber so much from each other,
and when the proper construction is peculiar c i ~ , c ~ s t a n c eofs each
case, it seldom happens that the WO are a sure guide for the con-
st-ruction of words resemb~ingthem in another. Besideps, the salutary rule of con-
struction I have ~ e n t i o n e d may
, have been ~ ~ s a p p ~ in i e the
d p a ~ i c u l a rcases, and
then they really become of no ind din^ authority a t all.
When, indeeld, by any course of dsisions, wordis have acquired a particular
n ~ be presumed that the framer of the i n s t r u ~ e i i tuses thenr in
s ~ ~ i f i c a t ~itomay
the sense so acqu~red,and it is ~ t t i so n ~to c o n s t i ~
them.
~ But when there has been
e two only of the %Fordsbeing read in a different sense Prom that uvhich
an i n s ~ n c or
they n a t u r a ~ ~bear,
y we cannot make any such ~ r ~ u n ~ p t ~Xow o n . there i s only
one case of su3h a construct~onof these words, that of ~ r ~ ~ ~ v.s ~ ~d ~o u rr (d2 s
Ves. Sen. 241), which bears upon this question. There the ~ t a t gave ~ r his estates
tu trustees and their heirs in trust to receive t-ke renix and profits, and place them
out a t interest for the i ~ p r o v e m ~ of n t the estate trlX his son John should attain
twenty"one, und if he should lire to attain twenty-ona, 09% have issuey then do John
[lQ$J and the hairs of his body ; E& if John should happen t o die before the age
of ~ ~ e ~ ~a - d o ~ e , issue, thensin trust till his d ~ u ~ h tshould
~~~~~~ e ~ . a t t ~ tnw e n t ~
one ;and if she s ~ o u l dhappen t o die (using exactly the same words) then over. Con-
s e q ~ e as ~ ~soony as John a t t a i ~ e dtwenty-#~e,or had issue, t h o ~ g hhe died before
twenty-one, a fee tail vested in the son. He did at;Gtin twenty-oney and had that
fee tail, as he would have had if he had had issue. And Lord Hardwiokej held that
&e s u b ~ q u e n words
t mdd, by a natural constructio~,be read as ~ m p o r t i Kthat ~ ~ if
John should ~ a p p to e ~die before twenty-one, and also ~~~~~~~ ~~~~e~ to die w ~ ~ ~ u
Zkcsw?, an3 so provid~ngfor the detern~~nat~on of the estate tail, the estate shouId go
by uvay of r e ~ t i n d e rto the d a ~ ~ h t e r .
The o b s e ~ a t i o ns ~ ~ e t i made
~ e s on e, that Lord ~ ~ r d w read ~ c k'' o~r "
" and " i s not eorrect, and t h i s i s out and explained in the case of
timer v. ~ a r (6~ Exch. ~ eRep.~ 41-60 he had done so, he mould have de-
prlved the son's issue af the estate i n case &e son had died before twenty-ons with
issue, which would lmve been ilstrong objection t o that construction ;for, In c o n s t ~ .
hich might poss~blyhave ~ ~ a p ~ e nase dwell as those which
eonsidered. The dee~s~on, however, i s not open to this
objection, for &is, as has been already st&ted, i s o ~ ~ ~ aby t e~d t i t ~ thei n s~ o ~ e ~ v ~ ~ ~ t
forced c o ~ s t ~ e t i oonn the words which Lord ~ a r d w i c k eadopted.
Upon fully considering that case, I think i t may be well doubted whether the true
construction of &e words was not after all the natural and ordinary one, viz., that
if the son should ~ t t a t~wn ~ n t y or e then he should have a n estate tail ;
~ ~b e ~~ issue,
bt& that on the other hand if he died under t w ~ n t ~ oaxid n ~had no issue, the
estate 11103 should go to the d ~ u g ~ ~ t eThis r . i s the simple and n ~ t u r a l~ i ~ e a i ~ i n g
of the ~vords, There was ~ o t ~ i ~inn the g least u n r ~ o n a ~ in l e it, and it was un-
n e ~ s a r yto rmur to the very unusual c o n s t r u ~ t ~ oadopted n by Lord ~ ~ i , d ~ ~ c k e .
But be this as it may, this case has not been followed by any uniform course of other
decisions, so as to make it, upoa the pr~ncipleabove explained, binding upon us
in the e o n ~ ~ ~ ofi osimilar n words in &is will. On the contra^,^ it i s directly
impugned by that of &e d. ~~~e~ v. Jessep (12 East, 288), where the natural and
o r d ~ n asense~ of &e same words was ~ d o p ~ dIn . that case Lord ~ l l ~ n b o r o u g ~
expressed self in mry strong terms in f a v o u ~of the rule of eo~structionabove
stated. The ~ r ~ t i which ~ ~ been made on that cme, that both sides were
c ~ shave
not heard; that it was not argued a t f u l l lengbh, and that the short obsermtions
of Mr.Justice Zpa Blanc and Nr.Justke Bayley were aot correet, do not appem to me to
detract from its a u t h ~ r ~ yThe . opinions did not affecti the princip~eof the d ~ ~ i ~ i o n ,
nor did it require a long a ~ ~ u m eto~ ienforce t and apply the sound rule o ccn-
struct~onso f o r c i b l ~expressed by Lord ~ l ~ e n ~ ~ of uthink ~ h .that there i s no
rule more useful and ~ m p o ~ ain n tthe ~ n s t ~ c t of ~ owritten
n i n s t r u i ~ e nthan
~ this;
and that it is by much the Fisest course to abide by it.
Th5 result is, that; the double went not having happened of Rokert TSatsun
1235
 VI H.L.C., 111 ~~~~~~~~ v. MARRYATT [I8571
having died under twenty-one usd without issue, none of the remaindtvs expetiE1it
upon his estate has taken effect, and the ultimnte ~ e ~ i a i n d iesr u n ~ i ~ i of
~ oby~ e ~
the first part of his will. Upon the second part of the case, I concur with my noble
and learned Friend on the woolsack, in the opinion he has expressed a8 to the
H e ~ ~ i e&ate n undevised by We last clause. I am Elll] rather inclined
n ~ ~being
to think he ~ ~ i g have
h t gone farther, and said that not only the ~ e ~ ~ &ate, i n ~ n
but. also the Stainton estate, was undevised, but as the part of the decree relating
to Stainton is not appealed against, that becomes immaterial.
I therefore concur in the opinion of my noble!and learned Friend on the woolsack,
that this appeal ought to be dismissed.
The Lord ~ h a n ~ ~ l o r . - W irespsct
t~ to the costs we make no order, buL simply
dismiss We appeal.
Order a ~ ~ and e d dismiss^.
~ appeal ~

[U21 A ~ E ~ ~A ~~ ~~ EE ~ X A JOSEPH
~ , - ~~A R
~ R ~Y ~e-22espon-
T ~~ , ~ ~ n
de& [May 28, l86'?].
[Mews' Dig. i. 352; iv. 16; xio, 1112, 1114, 1119, 1146. S.C. 26 L.J. Ch. 619; 4
~ Jur. N.S. 17; and, below, 21 Reav, 1 4 ; 3 W.R. 502. Followed in%o,siter v.
$idler, 1877, 5 Ch.D. 660; and of. R u m y v. N"oyne-Payne, 1879, 4 A.C. 311;
and see Balzk of New ~ e ~v. ~~ ~~ r l(1900) nz ~A.C.
~ ~ 182.1
o ~
A letter a ~ e p t i nan~ offer to purchase an s t a t e on the terms stated ia an
i ~ ~ ;
~dvertisement,added n sum for deposit and a day f o r ~ ~ p l ethet purchase
no reply was given to this letter :
i f Held that there was no compleb contract on which to s u s t ~ i na bill for specific
performance.
d the ~espondentfor sale. 'I!&
An estah was ~ d v e ~ i a eby + proposed
Appe~lant
to purchase it?and authorised his solicitor to make an offer of a certain sum of money
for it. The R~pondent'sestate agent on the 4th of April wrote to &e Appe~lant's
solicitor, '' Xr. ~ a r has~ authorised
a ~ us to accept the offer, subject to the term
of a contract being arranged bettwasn h i s solicitor and yourself. Mr. ~ a r r ~ a t t
requires a deposit of from &;E1200to SltiOO, and tbe purchase to be completed a t
Midsummer day next." The parties afterwards got into a long correspondence,
and the ~espondentinsisted on LlliOO as the deposit, and on the 27th of April as
the day for completing the purchase. These terns were not complied with, and he
treated the contract as a t a a end. The AFpellant filed his bill, a ~ ~ ~the ~ ioffer
n g
rand the letter of tile 4th of April in answer thereto as constituting a valid conkract.
The Respond~ntput in a general demurrer, and the Xaster of the Rolls held that
the words " subjwt ko the terms of a contract being arranged between his solicitor
and yourself," prevented the letter of the 4th of April from c o n ~ i t u t ~ nang ahsolute
n t a right a f t e ~ a r d sta add &e terms as tcr
contract, and that the ~ e s p o ~ d e had
the deposit, and the day for completing of the contract; his Honour therefore gave
judgment in favour of the demurrer and dismissed the bill (21 Beav. 14). An appeal
was brought against the order for dismissal.
m i e n the Appeal was oalIed on, no Counsel a p p ~ a r e dfor the A p p e ~ ~ a n ~
'
Mr. F. 0. Haynes appeared for the Respondent.
[113] ! b e Lord Chancellor.---If no one appears for the Appellant, we must dismiss
the appeal with costs.
Lord ~~ensleyda~e.-There certainly was no e o ~ p ~ contract
eb in this case.

1236