The father of the testator was the first Sir Francis Blake Baronet of Twizell Castle. The testator’s father was the grandson of Sir Francis Blake, Knight of Cogges, Oxfordshire. Sir Francis of Cogges was married to Catherine Browne and they had three children Eleanor married to Elisha Briscoe (this family is mentioned in her brother William’s will blogged earlier), William whose will was blogged earlier and a hypertext link is below, and Francis married to Eleanor Carr (this couple had seven daughters and it was their third daughter Sarah who married into the Blake family of Menlough Ireland and the Blake family at Twizel Castle is descendant of this union. William Blake’s will was blogged earlier as mentioned:
http://kippeeb.blogspot.ca/2012/04/will-of-william-blake-of-coggs.html
William does mention his brother Sir Francis Blake in this will as well as the Briscoe family.
Sir Francis and his wife Eleanor acquired Twizell Castle around 1685; he was the son of Sarah Blake (daughter of Sir Francis Blake of Cogges) and Robert Blake (third son of Thomas Blake of Menlough Ireland).
Looking at the Menlough Blake family, Thomas Blake, Mayor of Galway in 1545 and 1562, was the third son of Valentine Blake who was descendant of the Renvyle, Galway Blake family. Valentine Blake married second Eveline Lynch and Thomas was their second son (but the fourth son of Valentine). Valentine was the eldest son of John Blake, burgess of Galway (John was married to Juliana French). John was the son of Henry Blake (junior) (and he was the eldest and only child of his first marriage). Henry was the son of John (Oge) Blake, burgess of Galway (his wife’s first name was Margaret). This John was the second son of Henry Blake (senior). Henry Blake (senior) was the eldest son of Walter Blake, burgess of Galway. Walter Blake was the eldest son of Richard Caddell aka Blake and his wife Eveline.
Moving backwards in the Blake family of Cogges, Sir Francis of Cogges, grandfather of the first Francis Blake, Baronet of Twizell Castle, was the son of Sir Francis Blake of Cogges married to Catherine Browne. This Francis was the fifth child (4th son) of Thomas Blake and Eleanor Hall who lived initially at Eastontown near Andover but moved to London. Thomas’ parents were John Blake and Margaret Blake. By the Swindon and Wiltshire Blake Pedigree Chart, John is said to be the son of William Blake and Avis Ripley and Margaret the daughter of William Blake. I have discussed this family a number of times including the post on the will of William Blake above. I need to contact the family that inherited the paperwork for this particular pedigree chart to see if I could obtain copies of some of the documentation used. Since this is personal family property, I can quite understand if I am unable to do that but it would be interesting to discover evidence that William Blake (father of John) was a son of Roger Blake and Mary Baynard. Roger, in his will, mentions only his eldest son and his youngest daughter. Although William is not mentioned on the Visitation which does tend to give credence to the idea that he was not a member of this family; it is also not unusual to find children left off.
Enjoy the will, it is fascinating seeing the Blake family of Ireland coming together with the Blake family of England which is known to have Hampshire/Wiltshire roots. This Blake family eventually daughtered out although the Blake surname was taken on at least once as per the instructions of the will.
Names mentioned in the will:
Sir Francis Blake, baronet, testator
Earl Grey of Howick, trustee
William Alder aka William Rowland of Horncliffe, trustee
Dame Elizabeth Blake, his wife
Francis Blake, his son
Robert Dudley Blake, his son
William Blake, his son
Elizabeth Blake, his daughter
Sarah Blake, his daughter, deceased
Isabella Blake, his daughter
Eleanor Ann Blake Stag, his daughter
Bethel Earnshaw Stag, his son in law
Andrew Lambert, witness
J Lambert, witness
John Burrell, witness
Matthew Culley, purchaser
Isabel Ayton, mother of testator, deceased
Isabella Blake, sister of testator, deceased
Doctor Hewitt, legator
James Darling, witness
Matthew Hall, witness
John Renton, Edinburgh, Writer to the testator, witness
Joseph Grant, Edinburgh, Writer to the testator, witness
Hen Sprot, Edinburgh, apprentice to John Renton, witness
Tho[ma]s Wright, Louth house, Edinburgh, witness
Robt Strachan, Edinburgh, Writer to the testator, witness
Jas J Darling, Edinburgh, Apprentice to Robt Strachan, witness
Helen Blake, widow, is mentioned in the final probate as taking Admon for the will.
Eleanor Ann and Bethel Earnshaw Stagg had two children as located in Family Search:
Francis Douglas Bethel Stag (born 18 Nov 1807 and baptized 25 Jul 1812 at Norham, Northumberland) and Eleanor Anne Stag (born 14 Dec 1805 and baptized 5 May 1806 at Morpeth, Northumberland)
The Law Times carries a lengthy article describing the arguments back and forth with regard to the settlement of this estate and is the cause of the prolonged time between the death of Sir Francis, the present testator, and the Admon being given to Helen Blake, widow.
The Law Times, November 8, 1873, Volume XXIX, N.S., pages 331-345.
COURT OF EXCHEQUER AND
EXCHEQUER CHAMBER.
Reported by T. W. Saunders and H. Leigh, Esqrs., Barristers-at-Law.
April 29, May 1 and 2, and June 6, 1872; Feb. 15, 17, 18 and April 17, 1873.
Allgood And Others V. Blake; Roach v. The Same; Clennell v. the Same; Reed v The Same; Allgood And Others v F. Blake.
Will—Limitations of estates tail—Ultimate limitation "for default of such issue to all and every other the issue of my body"—Meaning of words "issue of my body," "all and every," "other the issue"— Words of exclusion or completion— General intent—Construction.
At the dates, respectively, of his will and death a testator had living one son and one daughter. The son had then living two sons, F. and R., and three daughters, E., J., and S. The testator had also then living four grandchildren, issue of a deceased daughter. By his will he devised his real estates to his son for life, with remainder to his said son's eldest son F. for life, with remainder to the first and other sons of F. successively in tail male; and, for default of such issue, to R., his son's second son, for life, with remainder to R.'s first and other sons successively in tail male; and for default of such issue to the third, fourth, and other sons of his son thereafter to be born, successively in tail male; and in default of such issue, to his daughter for life, with remainder to her first and other sons successively in tail male; and for default of such issue to his granddaughter E. for life, with remainder to her first and other sons successively in tail male; and for default of such issue, to his granddaughter J. for life, with remainder to her first and other sons successively in tail male; and for default of such issue to his granddaughter S. for life, with remainder to her first and other sons successively in tail male; and for default of such issue, to all and every the fourth, fifth, and every other daughter and daughters of his son successively and in remainder one after another, and the heirs male of their bodies; "and for default of such issue, to the use and behoof of All And Every Other the issue of my body lawfully to be begotten; and for default of such issue, to the use and behoof of my own right heirs for ever."
In his will the testator expressed a wish that his estates should be preserved in the hands of one person, and should not be dispersed; and he directed that any female who might inherit thereunder should (if married), with her husband, assume the testator's name and arms only, or forfeit the estates; and he directed that an iron muniment chest should "go to the person entitled to the real estates from time to time."
F., the eldest son of the testator's son, having come into possession of the estates, executed a disentailing deed, and devised the estates to the defendant for life, with remainder to his sons successively in tail male.
Actions of ejectment were brought (1) by the plaintiffs in the first and fifth actions, who claimed as issue of the body of the testator, as joint tenants per capita, at the period of the estates vesting in possession; (2) by the plaintiff in the second action, who claimed as heiress in tail general of the testator, at the same period; (3) by the plaintiff in the third action, who claimed as the heir of the survivor of all the issue in tail of the testator living at his death (other than those included in the particular limitations); and (4) by the plaintiff in the fourth action, who claimed as heir in tail of the testator at his death (those being excluded who came within the particular limitations); and it was held by the Court of Exchequer (Kelly, C. B. and Martin, Bramwell and Cleasby, BB.) that by virtue of the penultimate limitation in the will, there was at the testator's death a vested remainder in the heirs of his body in tail general, to which his son then became entitled; and that this remainder descended to F. who, as he was also tenant for life in possession, was qualified to execute a disentailing deed, so as to acquire the absolute disposition of the property, subject to all the estates preceding such penultimate limitation; and that the defendant, claiming under such deed, and all the previous estates having expired, had the title, and was consequently entitled to the judgment of the court; the judgment being founded upon the following conclusions (Bramwell, B., dissenting from the fourth conclusion only):
First, the words "issue of my body" in the penultimate limitation are to be read in the same sense as "heirs of my body."
Secondly, having regard to the context and the whole will, the devise to "the issue of my body" cannot be read as having the effect which it might have in an ordinary will, taken by itself, of giving the estate per capita in joint tenancy amongst all who came within the class at the time of vesting in possession.
Thirdly, the words "all and every" do not import that " all and every" are to take at the same time, but are well satisfied by all taking in succession.
Fourthly, the word "other" is not to be read in the strict sense of intending to exclude those coming within the class who have been provided for before, and are supposed to have failed, but rather to complete a provision for all the issue, so as to make the estates go over, by force of the words "in default of such issue" at the end of the penultimate limitation, only upon failure of all the issue of the testator.
Mandeville's Case (Co. Litt. 266) discussed, commented on, and distinguished; King v. Melling (1 Vent. 214-225; Pollexfen, 101); James v. Richardson (Pollexfen, 457; 1 Vent. 334); Burchett v. Durdant (2 Vent. 311), approved and followed.
Error having been brought upon the above judgment to the Court of Exchequer Chamber, it was Held by that Court (Blackburn, Keating, Mellor, Grove, and Honyman, JJ.) that the judgment of the court below was right and must be affirmed.
These were special cases stated in five several actions of ejectment, brought by the several plaintiffs respectively to recover fourteen forty-eighth parts of a farm and lands called High Letham, or Latham, in Berwick-upon-Tweed, and for the purpose of determining the right to the possession of certain landed estates of considerable value in the counties of Northumberland and Durham, and the county of the borough and town of Berwick-upon-Tweed respectively, formerly belonging to the late Sir Francis Blake, the first baronet, of Twizell Castle, in the county of Durham, who died in the year 1780, upon the construction of the devise of which estates in whose will, dated in Jan. 1780, the question in dispute between the parties arose and depended.
The following is a statement of so much of the special case as is material and necessary for the purpose of this report:
Sir Francis Blake (the first baronet) was, at the dates respectively of his will, and of his death hereinafter mentioned, seised in fee of the farm and lands in question, and also of large freehold estates in the counties of Durham and Northumberland, and also of the reversion of several estates in the county of Durham, expectant upon the failure of issue male of his eldest son, Francis Blake (the second baronet).
At the date of his will the first baronet had two children living, namely, a son, Francis Blake (the second baronet), and an only surviving daughter, Isabella Blake. The said Francis Blake, the son, had at that time five children living, viz., Francis Blake (the third baronet), Robert Dudley Blake, Elizabeth Blake, Isabella Blake, and Sarah Blake.
By his will, dated 18th March 1780, the first baronet, after charging all his mansions, castles, lands, and hereditaments, etc. with certain payments, which were afterwards duly made, and creating a term of 1000 years therein upon certain trusts, which were afterwards performed and satisfied, devised all his hereditaments, etc, to his son Francis (the second baronet), for his life, with remainder to trustees for the second baronet's life, to preserve contingent remainders, with remainder to the use of Francis (the third baronet), eldest son of the second baronet, for his life, with remainder to the uso of his first and all and every other sons successively in tail male; and for default of such issue to the use of Robert Dudley Blake (second son of the second baronet ), for his life, with remainder to the use of his first and other sons successively in tail male; and for default of such issue to the use of the third and all and every other sons of the second baronet thereafter to be born successively in tail male; and for default of such issue to Isabella Blake, the testator's daughter, for her life, with remainder to the use of her first and all and every other sons successively in tail male; and for default of such issue to the use of Elizabeth Blake (eldest daughter of the second baronet), for her life, with remainder to the use of her first and all and every other sons, successively in tail male; and for default of such issue to the use of Isabella Blake (the second daughter of the second baronet) for her life, with remainder to the use of her first and all and every other sons successively in tail male; and for default of such issue to the use of Sarah Blake (the third daughter of the second baronet) for her life, with remainder to the use of her first and all and every other sons successively in tail male; and for default of such issue to the use of the fourth and all and every other the daughters of the second baronet successively for life, with remainder to the heirs male of their bodies respectively; "and for default of such issue to the use and behoof of All And Every Other The Issue of my body lawfully to be begotten; and for default of such issue to the use and behoof of my own right heirs for ever."
The testator also, after reciting that the reversion in fee of the several estates in the county of Durham was vested in him and his heirs upon failure of the male line of the second baronet, further devised all and every the said estates, to which he was so entitled in reversion, in case of failure of the male line of the second baronet, to the said trustees and their heirs to, for, upon, and subject to such and so many of the uses, etc, in the said will before expressed and declared concerning his said other real estates by his said will before devised on failure of issue male of the said second baronet, as "should then be in existence undetermined or capable of taking effect." Immediately after the last-mentioned devise, the words next following occurred in the said will, "and thus having at least expressed a very natural desire to continue my name and property upon a respectable footing, and to prevent, as far as may be, the dispersion of my estates amongst several persons, and to keep up my name and family in one person, I do hope that the person into whose hands my estates shall come, whether by virtue of this my will, or by means of fines or recoveries, or other acts in the law, defeating the uses and limitations of the present entails, or otherwise howsoever, will be equally ready to adopt the plan for the purposes aforesaid." The will also contained a proviso, making it incumbent upon the females in the line of descent, when married, to retain, and on their husbands to assume and bear the name and arms of Blake upon their respectively coming into possession of the estates, under the penalty, in case of neglecting or refusing to do so, of forfeiting the estates to the person next in remainder. And there was also a clause by which the testator expressed his wish that an iron muniment chest should always go to the person entitled to his real estates from time to time.
On the death of the testator, on the 29th March 1780, his son Francis (the second baronet) succeeded to the title and estates, and entered into and continued in possession thereof, including the above-mentioned farm and estates, until the 2nd June 1818, when he died, leaving surviving Francis, the third baronet, his eldest son, and heir-at-law, Robert Dudley Blake, and William Blake, his younger sons, and Eleanor Ann Blake, his daughter, who was born subsequently to the death of tho first baronet, and who had intermarried with Bethel Earnshaw Stag, him surviving.
Isabella Blake, the first baronet's eldest daughter, and Elizabeth, Isabella, and Sarah, daughters of the second baronet, all died unmarried in the second baronet's lifetime. Upon the second Baronet's death, his son, the third baronet, succeeded to the title and estates, and entered into and continued in possession thereof, including the said farm aud lands, until his death, on the 3rd Aug. 1860.
In Jan. 1834 the third baronet executed indentures of lease and release, whereby the estate tail in the said estates and hereditaments vested in him by the said first baronet's will, expectant on the failure or determination of the estates in tail male limited to the use of his sons, and the death and failure of issue male of his brothers Robert Dudley and William, and his sister Eleanor Ann respectively, and all reversions and remainders thereupon expectant or depending, were barred and extinguished; and the same estates were thereby settled to the use of the said third baronet, for his life, and from and after his decease (but subject, and without prejudice, to the uses and estates in tail male by the said first baronet's will limited to the sons of the said third baronet, and to the said Robert Dudley Blake, William Blake, and Eleanor Ann Stag, and the heirs male of their bodies respectively), to the use of the right heirs of the said third baronet for ever.
Robert Dudley Blake, William Blake, and Eleanor Ann Stag were living at the date of the said indenture, but did not consent to the execution thereof. The third baronet, on the 15th Oct. 1845, made his will, whereby, after reciting that, under the will of the first baronet and by other assurances, he was entitled to the remainder in fee of and in tho said estates (including the said farm lands in question), he devised the same (subject to the estates limited by the said first baronet's will) to the use of the defendant in the first four actions for life, with remainder to his sons, successively in tail male.
Robert Dudley Blake, and William Blake, the brothers of the third baronet, died without issue in his lifetime, and upon tho third baronet's death his sister, Eleanor Ann Stag, assumed the name and arms of Blake, and entered into and continued in possession of the said estates until her death on the 12th March 1869. She died without issue male, but leaving surviving a daughter, Eleanor Ann, wife of Charles Roach, and the plaintiff in the second of the above actions, and who is heiress-at-law to the first, second, and third baronets. Besides his daughter Isabella, named in his will, the first baronet had another daughter, Sarah, who died before the said will was made. She married one Christopher Reed, and left many children.
The question for the opinion of the court, which was to have power to draw inferences of fact, was whether the plaintiffs, in any and which of the said actions respectively, were entitled to the possession of the whole, or of any and what share or shares, of the said property.
The special cases in each o£ the five actions were similar, except that the plaintiffs in the four first actions were different parties, and the defendant in the fifth action and the property therein sought to be recovered were different from the defendant and property in the first four actions. The interests of all the parties, however, being closely allied, and the points in dispute in the several actions being almost identical, it was arranged that the arguments in all the cases should be heard together. Tho plaintiffs in the first and fifth of the above actions, fourteen in number, were the same persons, and were great- grandchildren and great great-grandchildren respectively of the first baronet, being descendants from his daughter Sarah, who married Christopher Reed, and died in her father's lifetime and before the date of his will. They claimed the property as joint tenants, under the penultimate limitation in the will, as being among the issue of the testator's body in the line of the said Sarah Reed, and they contended that the property was given, under that limitation, per capita, and all who came within the class at the date of the death of Mrs. Eleanor Anne Stag, in 1869.
The plaintiff in the second action was Eleanor Anne Roach, a great- grandaughter of the first baronet, and, as before mentioned, the only surviving child of Eleanor Anne Stag, the youngest and last surviving child of the second baronet, and the last tenant in tail male under the specific limitations of the will. She was the heir in tail general of the testator's body at the time when the penultimate limitation took effect in possession, and she claimed as under a remainder contingent as to the person to take under it until the happening of the event.
The plaintiff in the third action was Percival Fenwick Clennell, a great-grandson of the first baronet, and a son of Sarah Clennell, formerly Sarah Reed, the youngest daughter of the before-mentioned Sarah Reed, formerly Sarah Blake.
His mother was the survivor of all the issue of the testator living at his death (other than those included in the particular limitation), and he claimed either the entirety as her heir and the survivor of such issue, or his share in case the other issue were allowed to come into the estates.
The plaintiff in the fourth action was Francis Reed, another great- grandson of the first baronet, and the second son of John Reed, the eldest son of the before-mentioned Sarah Reed, formerly Sarah Blake. He claimed the entirety of the property as heir in tail of the testator at his death, all those being excluded who came within the particular limitations, the distinction between his claim and Mrs. Roach's being that he claimed as upon a remainder vested at the death of the testator, the remainder in Mrs. Roach's case being contingent, as above mentioned.
The defendant in the first four actions claimed the property, the subject of dispute therein, as devisee for life, with remainder to his first and other sons in tail male under the before-mentioned will of the third baronet.
The defendant in the fifth action claimed the estates, the subject of dispute therein (and which were other and different estates from those claimed in the four other actions), as eldest son and heir at law of his father, who was devisee for life of the said estates, with remainder to his first and other Sons in tail male, under the said third baronet's will, and who died intestate on tho 14th of July, 1861.
The following counsel appeared for the various parties in tho several actions, and tho following cases and authorities were cited and referred to on the hearing of the arguments in the Court of Exchequer, wherefrom and from the elaborate considered judgment of the court, the scope and nature of the arguments urged on each side may be sufficiently gathered.
Sir R. Palmer, Q.C. (with him were Manisty, Q.C., Waley, and Gainsford Bruce) for the several plaintiffs in the first and fifth actions, cited:
Lewis on Perpetuities, 653, 61; 2 Co. Litt., by Hargrave and Butler, 266, 272a, note 1, s. 5;
Heasman v Pearce (V.C.M.), 24 L. T. Rep. N.S. 864; L. Rep. 11 Esq. Cas. 522; 40 L. J. 258, Ch.; s. c. on appeal to the L. JJ., 26 L. T. Rep. N.S. 299; 41 L. J. 705, Ch.; L. Rep. 7 Ch. App. 275;
Prior on Issue, Book I., 6, 12, 26;
Lees v Mosley, 1 Yo. and Col. 589; 5 L. J., N. S., 78 Ex. Eq. (per Alderson B., delivering the judgment of the court at p. 606 of 1 Yo. and Col., and p. 82 of 5 L. J.);
Nicholls v Sheffield and others, 2 Bro. Ch. Cas. Ex.; Eden 215;
Lewis dem. Ormond v Waters and another, 6 East. 335, at p. 346;
Surtees v Surtees, 25 L. T. Rep. N S. 288; L. Rep. 12 E1. Cas. 400;
Davenport v Henbury, 3 Ves. Jun. 257;
Freeman v Parsley, 3 Ibid. 421;
Bernard v Mountague, 1 Mer. 422;
Ranelagh v Ranelagh, 12 Beav. 200; 19 L. J. 39, Ch.;
Dalzell v Welch, 2 Sim. 319;
Cooper v Pitcher, 4 Hare 485;
Greene v Ward, 1 Russ. 262;
Lee v Busk, 14 Beav. 459; 22 L. J. 97, Ch.;
Cook v Cook, 2 Vern. 545;
Rowland v Morgan, 2 Phil. Ch., Rep. 764; 18 L. J., N. S., 78, Ch.;
Knight and others v Selby, 3 M. and G. 92, ; 10 L. J., N. S., 263, C. P.;
Whitelock and others v Heddon and others, 1 B. and P. 243;
Atkinson v Holtby (in the House of Lords), 10 H. L. Cas. 313; 8 L. T. Rep. N. S. 583; 32 L. J. 735, Ch.;
De Windt v De Windt (in the House of Lords), 14 L. T. Rep. N. S. 529; L. Rep. 1 Eng. and Ir. App. 87; 35 L. J. 332, Ch.;
Clavering v Ellison, 3 Drew 451; 25 L. J. 274, Ch.;
Egerton v Earl Brownlow and others (in the House of Lords), 4 H. L. Cas. 1; 23 L. J. 248,k Ch.;
Vernon and others v Wright and others, 7 H. L. Cas. 35; 38 L. J. 198, Ch.;
Fearne's Contingent Remainders, 80, 84;
1 Jarman on Wills, 3rd edit., p. 777; 2 Ibid. pp. 55, 56, 89, 91, 143, 758;
He commented also on Mandeville's case (Co Litt 26 b), (relied on by the defendants) and the anomalous character of the doctrine there as pointed out by Butler in his notes to Fearne's Contingent Remainders (ubi sup.) The Solicitor General (Sir G. Jessel QC) with him were W.H. Bagshaw and Wallis) for Eleanor A Roach the plaintiff in the second action cited
Co. Litt. by (Hargrave and Butler), 19a 20b 22a 24b 25a 25b 26b and note to 24b
Fearne on Contingent Remainders p 180 et seq 1 Crn. Dig. p 64, pl. 82, 83
Whitelocke v Heddon 1 B and P. 243
Bristowe, Q.C. (with him was Harrison Dalton), for Percival Fenwick Clennell, the plaintiff in the third action cited
White v Coram 3 K. and J. 652
Morgan v Britten 41 L. J. 70, Ch.; L. Rep 13 Eq. Cas. 28;
1 Jarman on Wills 3rd edit 758
Pollock QC (with him was Day QC), for Francis Reed the plaintiff in the fourth action cited:
Whitelocke v Heddon 1 B and P 243
Grey and others v Pearson and another (in House of Lords) 6 HL Cas 61 at p 68; 26 L. J. 473 Ch.;
Lees v Mosley 1 Yo and Col 589; 5 LJ N S 78 Ex Eq
Doe dem Dodson v Grew and others, Wilmot's notes 272; 2 Wils 322;
Roddy and others v Fitzgerald 6 HL Cas 823;
Hannaford v Hannaford 25 LT Rep NS 820; L Rep 7 QB 116; 41 LJ 63 QB;
Doe dem Blandford and others v Applin 4 TR 82;
Doe dem Cock v Cooper 1 East 299;
2 Jarman on Wills 3rd edit p 77
Sir J. Karslake QC and C Hall (with them was Kemplay QC) for the defendant in the first four actions and
Joshua Williams QC (with him were Trevelyan and C Browne) for the defendant in the fifth action (the interests of both defendants being identical) cited:
Abbott and others v Middleton and others 7 H of L Cas 68 (per Lord Wensleydale at pp 113 114); 28 LJ 110 Chan at p 114;
Jenkins v Hughes (in tho House of Lords) 8 HL Cas 571 (per Lord Cranworth at p 590; 7 L T Rep NS 106; 30 LJ 870 Ch;
Byng and others v Byng and another 10 HL Cas 171 (per Lord Cranworth p 181) 7 LT Rep NS 1; 31 LJ 476 Ch ;
Wild's case 6 Co Rep 17;
The Earl of Scarborough v Doe dem Savile (in error from the Queen's Bench) 3 A and E 897; 6 LJNS 270 Ex ;
Stanley v Lennard 1 Eden's Ch Cas 87; 1 Amb 355;
The Earl of Tyrone v The Marquis of Waterford (before Lord Campbell L C and the L JJ); 2 LT Rep NS 307; 1 De GF and J 613; LJ 486 Ch;
Mandeville's case Co Litt 26b;
Wright v Vernon 2 Drew 439 (at pp 455-457); 23 LJ 881 Ch; s c on appeal to the House of Lords, Vernon v Wright 7 HL Cas 35; 28 LJ 198 Ch ;
King v Melling 1 Ventris 214, 225; Pollexfen 101; 3 Keble 42, 52, 95; 2 Lev 58 ; 1 Salk 224 ;
Roddy and others v Fitzgerald 6 H L Cas 823 (per Lord Cranworth p 871 et seq);
Jordan v Adams (in error from the CP) 4 L T Rep NS 575; 30 L J 161, C P ; 9 CB NS 483 (per Cockbnrn CJ p 501);
Woodhouse v Herrick 1 Kay and J 352; 24 LJ 649 Ch ;
Montgomery v Montgomery 3 Jo and Lat 47; 8 Ir Eq Rep 740 ;
Crozier v Crozier 3 Dru and War 373;
Doe d Gallini v Gallini 5 B and Ad 621; 3 LJNS 71 KB; affirmed in error 3 A and E 340; 4 LJ NS 337 Ex (judgment of Tindal CJ p 352 of 3 A and E);
James v Richardson, Pollexfen, 457, 461; 1 Vent 334 ;
Burchett v Durdant 2 Ventr 311; 1 Eq Cas Abr 214 pl 11;
Pugh and another v Goodtisle (in error) 3 Bro Parl Cas. 454;
Parr v Swindels 4 Russ 283; 6 LJ 99 Ch ;
Kavanagh v Morland Kay 16; 23 LJ 41 Ch;
Taylor and Wife v Bayer Cro Eliz 742 ;
Broughton v Langley 2 Lord Ryan 873 ;
Petty v Goddard, Bridgm Rep by Bannister p 35;
Lethicullier v Tracey 3 Atk 728; 774; 784, 793; Amb 204, 220; 3 Ken 40;
Greene v Ward 1 Ross 262;
Doe d Bean v Halley 8 TE 5;
Doe d Cock v Cooper 1 East 229 ;
Roe dem Dodson v Grew 2 Wilson 322; Wilmot's Notes 272 ;
Doe d Blandford v Applin 4 TR 82 ;
2 Jarman on Wills 3rd edit pp 55, 146, 400, 415 ;
Hayes on Limitation in Devises 1, 18, 21, 28 ;
Hayes's Principles of Exposition (Table iii);
Fearne on Contingent Remainders pp 80 to 84, 180, 526;
2 Powell on Devises 3rd edit by Jarman 596;
2 Preston on Estates 506-7;
Plowden 29;
1 Hargr Coll J 403;
Hargrave's Tracts 565 .
Sir R Palmer QC and Pollock QC replied
Cur adv vult
June 6 1872 The court (Kelly CB and Martin Bramwell and Cleasby, BB.) having taken time to consider, the following judgments were now delivered :—
Cleasby, B.—The first of the above five actions—Allgood and others v. Blake—was brought to recover the possession of fourteen forty-eighth parts of a farm, messuage, and lands, called High Letham, or High Latham, in the county of the borough and town of Berwick-upon-Tweed. The question for consideration is the proper construction of a clause in the will of Sir Francis Blake, which was executed in January 1780. The testator died in the March following. At the time of making the will he had living a son, Francis, and a daughter, Isabella; another daughter, Sarah, had married a person of the name of Christopher Reed, and died in the year 1771, leaving several children, male and female, surviving. His (the testator's) son, Francis, had living, at the time of making the will, two sons, Francis and Robert Dudley, and three daughters, Elizabeth, Isabella, and Sarah. All the testator's descendants appear in the pedigree annexed to the case, with dates of birth, marriage, and death. The will is technically framed, and all the life estates are followed by a devise to trustees to preserve contingent remainders. Bearing that in mind, its substance may be stated, for the purpose of tho present question, as follows:—After charging all and singular his manors, messuages, castle, lands, hereditaments, and estates with certain payments, which are to be taken as having been duly made, and creating a term of 1000 years upon certain trusts which have been satisfied, he devised his said hereditaments to his son Francis for life, with remainder to Francis, the eldest son of his son Francis, for life, with remainder to the first and other sons of Francis, the grandson, successively in tail male; and for default of such issue to Robert Dudley Blake, the second son of Francis, the son, for his life, with remainder to his first and other sons successively in tail male; and for default of such issue to the third, fourth, and other sons of the son Francis, thereafter to be born, successively in tail male; and in default of such issue to the testator's daughter, Isabella, for life, with remainder to tho first and other sons of his daughter Isabella successively in tail male; and for default of such issue to his granddaughter Elizabeth, for life, with remainder to her first and other sons successively in tail male; and for default of such issue to the testator's grandaughter Isabella, for life, with remainder to her first and other sons successively in tail male; and for default of such issue to the testator's granddaughter Sarah, for life, with remainder to her first and other sons successively in tail male; and for default of such issue to all and every the fourth, fifth, and other daughter and daughters of Francis the son, successively and in remainder one after another, and the heirs male of their bodies. It should be here noticed that all the limitations including and following that to Isabella, the daughter of the testator (tho first female who comes in), are expressly made subject to a proviso or condition in the will, contained in the name and arms clause, which will be particularly noticed hereafter. The next limitation is the one upon which tho question arises, and is in the following words, "and for default of such issue to the use and behoof of all and every other the issue of my body lawfully to be begotten;" and upon this there immediately follows another limitation, "and for default of such issue to the use and behoof of my own right heirs for ever." The first of these two limitations may be correctly called, as has been done throughout the argument, the penultimate limitation ; and the other one, the ultimate limitation. The particular words "to all and every other the issue of my body," taken by themselves were, it was contended, susceptible of two meanings. They may be taken to signify a distribution, as if the testator had said, "to and among all and every the issue," etc, in which case they would be words of purchase; or they may signify succession, and not distribution, like "heirs of the body," in which case they would be words of limitation, although they might also, in some sense operate as words of purchase, according to Mandeville's case, as will be afterwards pointed out. In considering which of these two senses should be given to the words it was important to examine other parts of the will, to see whether there was any clear general intent of the testator, which could properly be considered as applicable to the construction of the penultimate limitation. And upon the meaning and effect of other parts of the will there was a very full argument before us. In addition to the estates of which the testator was seised in possession, he was seised in reversion, upon the failure of male issue of his son Francis, of certain estates in the county of Durham, and he devised this reversion to such of the uses limited in the will concerning his other estates, upon failure of male issue of his son, as should then be in existence, and capable of taking effect. And after the last mentioned devise, the following clause occurs in the will, "And thus, having at least expressed a very natural desire," etc. [Reads clause] (sup.). Another clause referred to was the clause making it incumbent upon the females in the lines of descent, when married, to take the name and arms of Blake, the language of which was much canvassed, and which was in the following words: "Upon this express condition that they the said several persons above-named, and the several and respective husbands of such of them as shall marry, and their respective sons and issue male, who are to take by virtue of and under the limitations hereinbefore contained, do and shall, when and as they shall respectively come into and be in the actual possession of my said real estates, or any part thereof, by virtue of or under the limitations hereinbefore mentioned and contained, and during such time as they respectively shall be in possession of the same estates and premises, or any part thereof, and for ever thereafter, assume and take upon himself, herself, and themselves respectively, and continue to use the surname of Blake only, and no other surname, and bear the coat of arms of that family, and shall in all deeds, writings, letters, and other instruments of writing, be styled and called by the surname of Blake only, and set and subscribe, and write his, her, and their surnames respectively, Blake only, to all and every such deeds, writings, letters, and other instruments; and that in case such person or persons as aforesaid, shall neglect or refuse so to do, for the space of six calender months next after he, she, or they shall become so entitled to the said estates as aforesaid, the person or persons so neglecting or refusing should not have or take any benefit, estate, or interest, under or by virtue of this my will, of or in the said estates and premises, and that in such case the person who, by virtue of the limitations aforesaid, is to take next in remainder after the person or persons so neglecting or refusing shall enter upon, have, and enjoy all the said estates and premises in as full and beneficial a manner, as if the person or persons so neglecting or refusing was or were actually dead. Provided that such person in remainder, to take by virtue, or in consequence of such neglect or refusal, shall assume and take upon him or her, and continue to use the surname of Blake only, and bear the coat of arms of Blake as aforesaid." And further, the language of the clause, at the latter part of the will relating to the iron chest, or muniment box, was alluded to, in which the testator declares his will to be, that it shall go to the person entitled to his real estates, from time to time. It was contended, on the part of the defendant, that the whole will, taken together, showed in the clearest manner a general intent in the testator that the estate should go to and be enjoyed by one person, in any possible line of descent from him, before the devise to the heirs general could take effect. He relied upon the manner in which the successive life estates, forming separate lines of descent, were specified as far as they possibly could be, and on the words " all and every" of the penultimate limitation itself. Particular stress was laid upon the penultimate limitation being followed by the words "and in default of such issue," and by a devise over in fee; these same words " and in default of such issue" having been used after every other devise of an estate tail to introduce the next limitation. It was said this showed conclusively, at all events, that the penultimate limitation could not have the effect of a devise in fee, as there was a remainder upon it following exactly the same words as all the other remainders in the will; and although, under the will, which was made before the 3lst Dec. 1833, the heirs of tho testator, who take under the ultimate limitation, would take by descent and not as devisees, this makes no difference as to the intended effect of the previous limitations which we are now considering. It will be noticed that every estate tail in the will is followed by the words, "and in default of such issue," and it was said, as those same words followed the penultimate limitation it is reasonable to read them as embracing the same idea, namely, the failure of the estates tail; and it was argued, and we think with great force, that if you once come to tho conclusion that the penultimate limitation operates as a devise in tail, it almost follows that successive estates tail were intended, and not so unusual and inconvenient an arrangement as joint estates tail in any number of persons, especially when the testator intimated so clearly his wish that the estate should not be divided. In answer to the argument that, in a will carefully framed, and in which the estate tail was created by the proper technical words, the penultimate limitation alone contained a devise to "issue," it was pointed out that the frequent repetition of the words " in default of such issue," after each devise in tail, showed that the word " issue " was throughout used as embracing all the heirs of the body. The defendant also relied upon the clause already referred to, in which the testator expressed his wishes as to the conduct to be pursued by his successors; and it was said that if the testator's mind was directed to the time when the limitations in the will should enable those who took the estate to make fresh settlements, and so prevent the dispersion of the property, he must have intended, so far as his own will could do so, to carry this into effect, and the penultimate limitation therefore ought to receive a construction which would carry that into effect. The language of the clause is very comprehensive, for the hope expressed is that the persons into whose hands the estate shall come, whether by virtue of the will or by means of fines and recoveries, shall be ready to adopt his plan for keeping up the name and family in one person; and this includes all who take estates tail, whether under the will or by means of fines and recoveries. The name and arms clause indicated (it was said) distinctly the same intent, and the clause relating to the muniment box was also referred to as not immaterial, and particularly the language of it, namely, that it should go to the person entitled to the estates from time to time. It was contended, on behalf of the plaintiffs, that the object of tho testator was sufficiently carried into effect by the various specific limitations preceding the penultimate one, and that an adequate effect having been given to that intention, it was unnecessary to employ it in construing that limitation, more especially when the construction contended for was contrary to the proper meaning of the words used, and further, that the clause relating to the conduct of his devisees showed what he wished the first and other tenants in tail to do, and had no reference to the multiplying the tenancies in tail. It was also pointed out that the forfeiture, by which the name and arms clause was enforced, was inapplicable to any persons who took under the penultimate clause; and also that the clause relating to the muniment box was of little effect, since it would absolutely vest, being a personal chattel, in the first tenant in tail for want of the intervention of the usual trustees to make it an heirloom. So far as this part of the argument is concerned, we think there does appear, clearly, upon the face of the will, and throughout it, an intent on the part of the testator so to limit the estate as to keep the estates and name and family in one person; and that all the devises and particular limitations are introduced as subordinate to, and for the purpose of carrying into effect, this general intent. And, having adverted to the arguments on both sides, we do not think it necessary to recapitulate them in favour of this conclusion; but we may say, in reference to those on the other side, that the existence of this intent is not negatived by some of the provisions introduced for the purpose of carrying it into effect, being imperfect in their operation. We had brought before us many authorities for the purpose of showing to what extent the courts and the House of Lords had gone in construing particular provisions, so as to carry into effect what has been called the general intent; and how, in some cases, words have been rejected, and a particular intent expressed by them has been sacrificed. Two of the latest authorities have certainly a strong bearing upon the present case, and may well be noticed, Jenkins v. Hughes (8 H. L. Cas. 571; 3 L. T. Rep. N S. 106; 30 L. J. 870, Ch.), and Byng v. Byng (10 H. L. Cas. 171; 7 L. T. Rep. N. S. 1; 31 L. J. 476, Ch.). In the first of these cases there was a clause, corresponding with the clause in the present case, expressing the testator's wish as to the conduct of his successors, and in the second there were clauses corresponding with the name and arms clause, and the clause as to the iron chest. In Jenkins v. Hughes, the ninth clause in the will contained the following words:
"My express will and desire being that my estates do always descend in the male line," (p. 573 of 8 H. I. Cas.) the question being whether Thomas the great nephew of the testator took an estate tail by force of certain words which, taken by themselves, would have a different operation. Lord Cranworth says at p. 592, " But the general emphatic direction contained in the ninth clause seems to me to justify us in holding the true construction of the will to be, that Thomas took an estate in tail male." In the other case of Byng v. Byng, the will contained a name and arms clause, and also a clause directing that Holbein's portrait of Archbishop Cranmer, and other chattels, should go as heir-looms with the estate. The devise was to A. B. and his children. As there were several children born at the time of the devise, the effect of the devise, taken by itself, was to make children a word of purchase, and to make the children take as joint tenants with A. B. According to Wild's case (6 Co. Rep. 17) Lord Cranworth s lauguage in Jenkins v. Hughes at p. 181 of 10 H. L. Cas., is remarkable in its application to the present case; "There are two passages in the will which bring me to the conclusion that the testratrix could not have contemplated a joint tenancy among the niece and her children." He then refers to and reasons upon the name and arms clause, and at the end of the paragraph says, "For these reasons I think that the direction to take the name and arms tends strongly to show an intention to keep the estates in a single line of enjoyment, and not to devise them among an indefinite number of objects." The other passage alluded to is that making the portrait and chattels heir-looms, and he refers to that as suggesting arguments of greater weight than the others. Lord Kingsdown, who says that he had given to the case an anxious consideration, having at first had a different impression, refers (at p. 187 of the same volume) to both the above matters as aiding the construction, and the result was that the word children was held to be a word of limitation. It is not at all necessary, in the present case, to act upon the rule of carrying into effect the general intent to the extent to which it has been acted upon in such cases as Doe dem. Blandford v. Applin (4 Term Rep. 8:2), and Doe dem. Cock v. Cooper (1 East, 220), where a particular provision, clearly expressed, has been rejected; the utmost extent to which, if at all, it need be applied, is in that modified form to which it is limited by Lord Redesdale in the House of Lords in Jesson v. Wrigt (2 Bligh 1), and as approved of by the Court of Queen's Bench in Doe dem. Gallini v. Gallini (5 B. and Ad. 621, affirmed in error, 3 A. and E. 340) namely, "that technical words shall have their legal effect, unless, from subsequent inconsistent words, it is very clear that the testator meant otherwise." And if the words of the penultimate limitation had, by force of certain decisions, acquired technically the sense of a distribution in joint tenancy, we should feel justified in departing from that sense, when so clearly opposed to the intent of the testator, and giving them any other sense which they would fairly bear. In reality, when we are dealing with a will which is one document expressing all the intentions of the testator, and which ought, therefore, to be read as a consistent whole — if a question arises as to the effect of a particular clause, the language of which is by possibility susceptible of two meanings, we are, naturally, and almost irresistibly, influenced by the impression derived from the whole will of what the main object and intent of the testator was in making it, assuming, of course, such an object and intent to be apparent upon the face of it. And it is, perhaps, in this way that the general intent has been so much acted upon. To come now to the words of the penultimate limitation,— "to all and every other, the issue of my body." It was contended, on behalf of the plaintiff, that in general a devise by a testator to his issue gave an estate to all his issue— children, grandchildren, etc.— as joint tenants in fee; and that all came within the devise who were in existence at the time of vesting in possession. Many authorities were mentioned in which this rule had been followed in cases of personalty. Davenport v. Hanbury (3 Ves. jun. 257), and other cases collected in Mr. Jarman's book on Wills, vol 2, p. 89 and 90; and to some extent the same rule has been followed in the cases of realty (see Cook v. Cook, 2 Vern. 545); and the word "estate" was referred to as incorporated in the devise so as to carry the fee without any words of limitation. But, without relying upon any general intent, it has never been questioned that words ought to be construed by, or along with, the context of which they may be said to form part. Now, we find in the will before us a long series of devises, specifically carrying the estate through all the lines of one part of the testator's issue, each line being followed by the words "in default of such issue," and upon failure of all these lines, there is a devise " to all and every my other issue," and in default of such issue a devise to his right heirs forever. We think it would be unreasonable to hold that, because the specified male lines had been exhausted, the word "issue" is to be read in a different sense from the sense in which it had been used so often before, and that the whole series of devises were not to be read as consecutive limitations of the same estate. The ultimate limitation in fee we read as dealing with the same estate as all the previous limitations, namely, the whole estate as one, and the failure of issue is the failure of issue to take the whole and not several parts. It was suggested on behalf of the plaintiffs that the ultimate limitation might be read, not as a remainder upon the previous estate, but as intended to provide for the case of there being no one to take under all the previous limitations at the testator's death. We think this wholly inadmissible; for, without referring to the state of the testator's family, there are many separate devises to his living children and grandchildren, besides others to their issue unborn. The ultimate limitation in fee is a great difficulty in the way of the plaintiffs' contention, and the effect of it cannot be got rid of in the way suggested, or, as far as we can see, in any other way. It was urged by the learned counsel for the plaintiffs that, properly, the word " issue " referred to procreation and not to inheritance; the word "heirs" to inheritance and not to procreation; and the words "heirs of the body" to procreation and inheritance. But, though this is the primary sense of the words taken by themselves, yet we know frequently the word "heirs," taken with the context, becomes "heirs of the body," and the word "issue," when used in a will in connection with previous life estates, and with limitations in default of issue, generally refers to inheritance as well as to procreation, and is equivalent to "heirs of the body." We see no reason to doubt that the remark upon the case of King v. Melling (1 Vent. 225, 232) quoted by Mr. Hayes in his Principles for Expounding Dispositions of Real Estate (a work frequently referred to in the argument), is applicable to the present case. It is found at the top of Table III., and is as follows:
"It has been established, ever since the case of King v. Melling, that in a will the words issue of the body are as strict proper words of limitation as the words heirs of the body, and equally give an estate tail in lands legally devised." (Per Lord Hardwicke, 1 Hargr, Coll. J., 403.) We see no reason why the words must receive a different meaning in a devise by a testator to the issue of his own body from that which they would receive in a devise to the issue of the body of another person. In the present will the use of the words, "in default of such issue" throughout, after a devise to the heirs male of the several tenants for life, and the form of the penultimate devise followed by the devise over in default of issue, justifies us in reading the word "issue" in that devise as equivalent to " heirs of my body." We do not think the words "all and every" in themselves, when applied to issue, necessarily import distribution. In Surtees v. Surtees (L. Rep. 12 Eq. 400), quoted by the learned counsel for the plaintiffs, tho words, " to the use of every son of J. S., living at the death of the eldest son of J. S., or born during the testator's lifetime," were held to give to each son a separate interest. But the words, "son or sons" (excluding the next generation), are very different from the word "issue," which takes in all descendants, and the naming a time when the objects of the gift were to bo ascertained, to the exclusion of others coming within the description, seems to refer to a separate interest in each of them. On the other hand, in Cradock v. Cradock (4 Jur, N. S. 626), the words, "all and every " occurred. The words were, after other devises in tail, "and for default of such issue to the third and all and every other, the son and sons of the body of A., lawfully begotten or to be begotten, and the heirs male of such son and sons' lawfully issuing; and for default of such issue to the testator's own right heirs for ever." It was held that these words gave to the third and other sons, estates in succession in tail male, and that the third son took the entirety. No authority was referred to in which the words "all and every the issue," coupled with any context such as we have here, and applied to real estate, had been held to make a joint tenancy, either in fee or in tail. Reading the penultimate limitation then as a devise to the heirs of the body of the testator, and for the present, supposing the case not to be complicated by the addition of the word " other," we think the case would be governed by Mandeville's case, and that the effect of the devise would be, that there would be a remainder under which all the heirs of the body of the testator would take in the same manner as if the testator had been tenant in tail, and the heirs of his body had taken by succession from him. The case is given in Co. Litt. 26b. The section of Littleton deals with such a case as well as the commentary. The text is, sect. 30, "also if a man hath issue a sonne and dyeth, and land is given to the sonne and to the heires of the body of his Father begotten, this is a good entaile, and yet the Father was dead at the time of the gift, and there may be many other estates in the taile, by the equity of the said statute which be not here specified." The statute referred to is, of course, the statute of Westminster, 2, De donis (13 Edw. 1). The commentary gives Mandeville's case. "John de Mandeville died, leaving a wife Roberge, and had issue Roberge and Maude. Michael de Moreville gave certain lands to Roberge, and to the heirs of John de Mandeville on her body begotten, and it was adjudged that Robert had an estate but for life, and the fee tail vested in Robert (heires of the body of his father being a good name of purchase) and that when he died without issue, Maude the daughter was tenant in tail, as heire of the body of her Father per formam doni." This case has been the subject of much comment. It is discussed by Fearne (Contingent Remainders, p. 82), where he says, that Hale called it, with his emphatic accuracy, a quasi entail; and more fully in Butler's note, who calls it an anomalous case. There are some excellent remarks upon it of Vice-Chancellor Kindersley, in Wright v. Vernon (2 Drewry 439). It was acted upon in that case, and also in the same case on appeal, Vernon v. Wright (7 H. L. Cas. 35) and is undoubted law. If it is objected that something like a fiction is introduced, it certainly has the merit (as pointed out by the Vice-Chancellor in the case referred to) of carrying into effect the intention of the testator that all the heirs of the body should be included. In the case referred to the devise was to the heirs of the body of a third person deceased, but we think the same rule applicable to the devise to the heirs of the body of the testator, which can only take effect upon his death. The learned counsel for the plaintiff did not dispute that it was so applicable, and so that, if there was a devise to A. and the heirs of his body, and upon failure of such issue to the heirs of the body of the testator, and in default of such issue to the testator's right heirs, there would, at the death of the testator, be a vested estate tail in remainder, upon failure of A.'s issue, in the heirs of the body of the testator descendible, as in Mandeville's case, with a remainder in the testator's heirs general. We have only then to consider how far the additional word "other" affects the meaning and makes the rule in Mandeville's case inapplicable; and if the necessary meaning of that word was to exclude out of the operation of the penultimate limitation, any part of the issue of the body of the testator, the rule in Mandeville's case would not be applicable, or rather could only be made applicable by qualifying the strict and proper meaning of a word as was done in Jenkins v. Hughes (ubi sup.), and the other cases referred to, in order to carry into effect the clear intent of the limitation that all the issue of his body should be exhausted before the estates went over to his collateral heirs. But it does not appear to us that the word "other" has any effect by way of exclusion at all; and for this simple reason, that there is nothing to exclude. The penultimate limitation for the benefit of "all and every other the issue of the body" is only to come into operation when the rest of the issue, not comprehended in that word "other," have been exhausted and extinguished. The distinct effects of tho word "other" may be illustrated thus:
If the testator's issue consisted of two classes, A. and B., and he was to dispose of two estates, and gave the first to class A. in tail, and the second to all and every the other issue (which would be class B.), in that case both devises would come into operation at the same time, and both estates would be enjoyed at the same time by A. and by the other issue, and A. would be excluded from the enjoyment of the second estate and the other issue from the enjoyment of the first. In that case the word "other" would for ever exclude class A. from the enjoyment of the second estate. But it is different if there is one estate to be enjoyed in succession by A., and by the other issue, and only by the other issue on the extinguishment of A. Thus, if the estate be given to class A. in tail male, and upon, failure of issue to the other issue of the testator, it is obvious that the word "other" does not operate to exclude class A. from the enjoyment of the estate which has already been enjoyed by class A. until its extinguishment, but its only effect is to exclude the other issue. The rule "Expressio unius est exclusio alterius" does not apply when the "other" has been included in the gift before. In short, in the case put of two classes of the issue, A. and B., and a devise to A., and upon the extinguishment of A. to B., the effect is the same whether the gift over be to B. or to the whole issue A. and B., A. being extinguished. We are speaking of course of the effect, so far as the actual enjoyment of the estate is concerned, which is what the testator is considering, and not of the legal effect, which maybe different by reason of the law regarding estates in remainder as vested and capable of being dealt with in the same manner as estates in possession. It need hardly be added that the way in which the law may operate upon estates by enabling entails to be cut off, or in other respects, is to be disregarded in construing wills, for which many authorities were cited at the bar. It was noticed that in the common uses of the word "other," it has two meanings, one being "different from," corresponding with the French "autre," and the other being " additional," or "in addition to." The latter is the proper sense here, and the real meaning of the words " other the issue of my body," is to add to the specified issue all that which remains, and so comprise and include it in the limitation. It may appear a paradox to say that " all my other issue has the same meaning as "all my issue," but in reality the two things are the same, when there is no issue existing except the other issue; and in that event both expressions have the same meaning. The learned counsel for the defendant put, by way of illustration, a case which raises really the same question as the present, but in a simpler form, and clear of the peculiarity of Mandeville's case; a devise to A. for life and to his first son in tail male, and in default of all other issue of A., to a stranger in fee: would it not be clear in that case that the estate was not to go over except upon a failure of all the issue of A., and would the word "other " be considered sufficiently definite and important in its meaning to prevent an estate in tail general in remainder in A., after failure of all the male issue of A.'s eldest son, upon the authority of Stanley v. Lennard (1 Eden. 87) (which is the same case without the word "other ''), and a class of cases to the same effect. Langley v. Baldwin (1 Eq. Cas. Abr. 185, pl. 29, cit. 1 P. Wms. 759); Doe dem. Bean v. Halley (8 T. R. 5); Parker v. Tootal, in the Ho. of Lords (11 H.L. Cas. 143; 12 L.T.Rep. N. S.; 34 L. J. 198, Ex.) We think it would not, and that the word "other" is not a governing word in such a limitation. There are some authorities to this effect with which the learning and industry of the learned counsel for the defendant supplied us, where the word " other " was used with a similar context. The first was that of James v. Richardson (Pollexfen, 457, 461). It should be noticed that the report is not of the judgment of the court, but of Pollexfen's own argument, which seems, however, to have been adopted by the King's Bench, and afterwards by the House of Lords. The case was a devise of an estate to a trustee during the life of A. in trust to permit A. to receive the rents, and the will proceeded, "After the death of A., I devise the estate to the heirs male of the body of A. now living, and to such other heirs, males and females, as he shall hereafter happen to have of his body," and for want of such heirs there was a devise over. A. had an oldest and only son, George, alive at the making of the will, and at the death of the testator the question was what estate George took, and it was considered he took an estate tail by force of the words "such other heirs, males and females, as he shall hereafter happen to have of his body." Now George was the heir male of A., and could not take if the word "other" had the effect of excluding him, because he had been named before. The argument at pages 462-3 is, "The word other does not exclude George, it only provides for the other heirs male that should be of another sort." And at page 463 it is said, "If lands be given to A. for life, remainder to the heir male of the body of B., remainder to the other heirs of B., in this case the heir of B. takes two estates, one as heir male and the other as heir general." But it is obvious that he could not do this if the word "other" did not include him, though he had been named before. No doubt what has been quoted is only the argument of Pollexfen, but if it be correct it is strictly applicable to the present case, and shows that under the present will the second baronet took two estates under the will of the first baronet, an immediate estate for life, and an estate tail general in remainder upon failure of the preceding limitations. Another authority was the case of Burchett v. Durdant (2 Ventris, 311.) In that case the same will appears to have come in question, and it is said the matter was three times argued in the Exchequer Chamber, and the third resolution is to the effect that George Durdant took an estate tail by force of the words "and to such other heirs, male and female, as he" (Robert Durdant) "shall hereafter happen to have of his body." This is to the same effect as Pollexfen's argument, and it was affirmed in the House of Lords; and the word "other" could not have the effect of excluding George, who was the heir male previously named. "We were also referred to a passage in Preston on Estates, vol. 2, p. 506, to show what his opinion was of the effect of the word ''other" in a limitation similar to the present. He was a man of undoubted eminence in his branch of the Profession, and of great experience in the drawing of deeds and wills, and a good authority as to the meaning of particular words. The case put by him is of " a gift by deed to R., and K., his wife, and their heirs, and to the other heirs of R., if the said heirs of R. and K. should die without heirs of themselves." The remark of the writer upon this case is that two distinct estates were limited, the one by a special entail (that is to the heirs of the body of R. and K.), the other a fee simple by the words "other heirs of R.," for the donor had declared that the order of succession should, in the first place, be regulated by a reference to the joint heirs of the husband and wife, and should be extended to and include in a secondary consideration and under a more remote gift, all the heirs of the husband. Thus the words "other heirs" include all heirs, and do not exclude the eldest son, though he would come within the previous limitation. We will now recapitulate in this rather complicated case, the conclusions upon the various arguments submitted to us upon which our judgment is founded, for the reasons which have been given already. First, the words "issue of my body," in the penultimate limitation, are to be read in the same sense as "heirs of my body;" secondly, having regard to the context and the whole will, we cannot read the devise to the " issue of my body," as having the effect which, in an ordinary will taken by itself, it might have, namely, of giving the estate per capita in joint tenancy, among all who came within the class at the time of vesting in possession; thirdly, the words "all and every" do not import that "all and every" are to take at the same time, but are well satisfied by all taking in succession; fourthly, the word " other" is not to be read in the strict sense of intending to exclude those coming within the class who have been provided for before, and are supposed to have failed, but rather to complete a provision for all the issue, so as to make the estates go over, by force of the words, "in default of such issue," at the end of the penultimate limitation, only upon failure of all the issue of the testator. And the result is that by virtue of the penultimate limitation, there was, at the death of the testator, the first baronet, a vested remainder in the heirs of his body in tail general, to which the second baronet then became entitled; that this remainder descended to the third baronet, the grandson, and that, as he was also tenant for life in possession, he was qualified to execute a disentailing deed so as to acquire the absolute disposition of the property, subject to all the estates preceding the penultimate limitation. It is only necessary to add that this estate tail, if suffered to continue until it takes effect in possession, exactly and completely gives effect to the words of the penultimate limitation because, upon failure of all the issue named in the particular limitations, the persons who would take under the penultimate limitation, and the only persons who would take under it are "all and every other the issue" of the body of the testator. And this is a great proof of the soundness of the conclusion, notwithstanding the objections made to that mode of arriving at it which we have already considered. This conclusion agrees with the recital in the disentailing deed, which is no doubt made upon mature consideration. It was admitted that the disentailing deed was properly executed, and effectual in law, if the grandson was qualified to make it. The claim of the plaintiffs, if without the disentailing deed they would have had any claim, is therefore barred, and the defendant who claims under the disentailing deed is entitled to the judgment of the court. Having come to the conclusion, in the first action, that the defendant is, upon the facts stated, entitled to the property, it follows that in the other actions, as the facts are the same, the defendant is also entitled to judgment; but it seems proper to state the objections to the title set up by the plaintiffs in those other actions.
In the second action, that of Roach v. Blake, the plaintiff is Eleanor Ann Roach, the only surviving daughter of Eleanor Ann, who was herself the last surviving child of the second baronet, and last tenant in "tail male under the specific limitations of the will." She was the heir in tail general of the body of the testator at the time when the penultimate limitation took effect in possession. The Solicitor-General, who appeared for her, contended that she was therefore the person entitled. His argument was that the penultimate limitation was a contingent remainder — that is, contingent as to the person who was to take under it until the happening of the event; and of course his whole argument was based upon the introduction of the word "other," which caused the contingency. In addition to the answer already given, by attributing the proper sense to the word "other," and to another objection, namely, that this reading introduces a contingent remainder after so many limitations, when another reading introduces a vested remainder (always so much preferred because it enables the property to be dealt with), another objection is that, though this reading provides one of the issue to take when the event happens, it makes no provision for the succession of "all and every the other issue;" and accordingly the Solicitor-General relied (as he was obliged to do) upon Mandeville's case, and contended that "all and every the other issue" might succeed as upon a supposed entail, or quasi entail, in the testator to himself and the other heirs of his body (excluding certain lines of descent, which would include the real heirs of his body). Cases of limited entail were put, such as the entail upon the Electress Sophia of Hanover and the heirs of her body being Protestant — or upon a man and the heirs of his body, tenants of the Manor of Dale. It is unnecessary to enlarge upon the obvious distinction between such cases (where a condition is imposed upon a person who is the real heir of the body) and the present. Such a distinction might be of importance in the case of a grant or devise to the ancestor as well as to the heirs of his body; but we should certainly not extend Mandeville's case to such remote and contingent interests as we are now considering, or suppose the testator to be quasi tenant in tail of an estate descendible, not to the heirs of his body, but to some person who might at some remote period, and upon the happening of a certain event, fill the character of heir of his body, and, upon the failure of his issue to some other heir of the body not easily ascertained. In the case put, the heir of the body who took by descent would take an entirely different estate from that of the ancestor from whom he is supposed to inherit. In the third action, Clennell v. Blake, the claimant is Pereival Fenwick Clennell. His mother was the survivor of all the issue of the testator living at his death (other than those included in the particular limitation), and he claims either the entirety, as the survivor of the issue living at the death, or his share, in case the other issue are allowed to come in. His case, as regards the claim to the entirety, differs from the first case only in this, that he insists that the distribution ought to be made among the issue at the death of the testator; and as to the share claimed his case is the same as the first. The same objections apply quite as strongly. Distribution among the issue per capita is equally against the language and intent of the will, whether finally made at the death of the testator or modified by the introduction of other issue.
In the fourth case, Reed v. Blake, the claimant is Francis Reed, and he claims the entirety as heir in tail of the testator at his death, all those being excluded who come within the particular limitation. He relies upon the exclusive effect of the word "other," and the distinction between his case and the second (that of Roach) is that he claims as upon a remainder vested at the death of the testator, whereas, in Roach's case, the remainder is contingent as to the person to take. The same objections apply as to Roach's case, except that founded upon the construction making the remainder contingent. It provides one person to take under the limitation, but makes no provision for "all and every the other issue," except by the eccentric application of Mandeville's case. The following would be one of the consequences of the construction contended for by this plaintiff: If the third baronet (the grandson) had left one child, a daughter, surviving him, that daughter would clearly have been excluded from all the particular limitations, and though, upon the extinction of all the male lines, she would be the proper representative of the family, she would be excluded by the grandson of her great great aunt, Sarah Reed, whose issue the testator purposely excluded in the enumeration of those who were to take. According to the construction which we put upon the will, the estate would have come to her in a regular course of descent as tenant in tail in the events which have happened. There was a fifth case mentioned upon the argument, in which the plaintiffs are the same as in the first action, and the defendant is Francis D. Blake, and which is only a different action because it is brought in respect of other property. In that case also the judgment will be for the defendant.
Kelly, C.B. — I entirely concur in the judgment delivered by my brother Cleasby, which may be taken to be the judgment of my brother Martin, my brother Cleasby, and myself. I am, however, requested by my brother Bramwell to read the following few remarks on his behalf.
Bramwell, B. — I concur that our judgment should be for the defendant, and I agree in all the reasoning of my brother Cleasby, except in his dealing with the word " other" in the penultimate clause. 1 think that the testator did not intend and has not expressed the intention that any of those issue of his body before named should take an additional estate to those he had already given them. I do not think he had so improbable a thing in view. I think he meant that, for default of such issue as named, the daughters of the sons of his eldest grandson, on their default the daughters of his eldest grandson, then the daughters of the sons of his second grandson, then the daughters of his second grandson, then in the same way as to the third, fourth, and other grandsons, then the daughters of granddaughters should take in succession as purchasers, and so on, according to heirship to him. This would give the estate to Mrs. Roach; but this intention is not expressed sufficiently to be carried into execution, and the only way to accomplish the testator's general or governing intention to provide for the issue of his body is to construe the will as proposed by my brother Cleasby. I therefore concur in his judgment, and the more readily that, if the penultimate clause is not interpreted as he proposes, it is unmeaning, in which case also the defendant is entitled to our judgment.
Judgment for the defendant in each of the five actions.
Feb. 15, 1873. — The plaintiff in the third of the above actions, Percival Fenwick Clennell, submitted to the above judgment of the Court of Exchequer in favour of the defendant, but the plaintiffs in all the other actions brought error thereupon to the Court of Exchequer Chamber, before which court, the cases were argued on the 15th, 17th, and 18th of Feb. last.
The same counsel appeared and the same arguments used.
Cur. adv. vult.
April 16, 1873. — Their Lordships having taken time to consider, the following judgment of the Court (Blackburn, Keating, Mellor, Grove, and Honyman, JJ.) was now delivered by
Blackburn, J.—The questions raised in these five actions all depend upon the construction of the same clause in the will of Sir Francis Blake, who died on the 29th of March, 1870, having made the will in question on the 8th Jan. 1780. The provisions and effects of the will are sufficiently stated in the judgment of the court below, and to that we refer instead of repeating them again. The whole question in each of the causes depends upon the true construction of what has been called the penultimate clause in the will. The general rule is that, in construing a will, the court is entitled to put itself in the position of the testator, and to consider all the material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words. As is said in Wigram on Extrinsic Evidence, p. 9, "Tho question in expounding a will is, not what the testator meant, as distinguished from what his words express, but simply what is the meaning of his words." But we think that the meaning of words varies according to the circumstances of and concerning which they are used. In Doe d. Hiscocks v. Hiscocks (5 M. and W. 363-367; 9 L. J., N. S., 27-29, Ex.) in the judgment of the Court of Exchequer it is said — "The object in all cases is to discover the intention of the testator. The first and most obvious mode of doing this is to read the will as he has written it, and collect his intention from his words. But, as his words refer to facts and circumstances respecting his property and his family, and others whom he names and describes in his will, it is evident that the meaning and application of his words cannot be ascertained without evidence of all these facts and circumstances. All the facts and circumstances therefore respecting persons or property to which the will relates are undoubtedly
legitimate and often necessary evidence to enable us to understand the meaning and application of his words." No doubt, in many cases, a testator has for the moment forgotten or overlooked material facts and circumstances which he well knew. And the consequence sometimes is, that he uses words which express an intention which he could not have wished to express, and would have altered if he had been reminded of those facts and circumstances. But the court is to construe tho will as made by the testator, and not to make a will for him, and therefore it is bound to execute his expressed intention — even if there is great reason to believe that he has by blunder expressed what he did not mean. And the general rule, we believe, is undisputed that, in trying to get at the intention of the testator, we are to take the whole of the will, construe it all together, and give the words their natural meaning (or, if they have acquired a technical sense their technical meanings), unless, when applied to the subject matter which the testator presumably had in his mind, they produce an inconsistency with other parts of the will, or an absurdity or inconvenience so great as to convince the court that the words could not have been used in their proper signification, and to justify the court in putting on them some other signification which, though less proper, is one which the court thinks the words will bear. The great difficulty in all cases is in applying these rules to the particular case; for to one mind it may appear that an effect produced, by construing the words literally, is so inconsistent with the rest of the will, or produces an absurdity or inconvenience so great as to justify the court in putting on them another signification which to that mind seems a not improper signification of the words, whilst to another mind the effect produced may appear not so inconsistent, absurd, or inconvenient as to justify putting any other signification on the words than their proper one, and the proposed signification may appear a violent construction. Grey v. Pearson (6 H. L. Cas 61; 26 L. J. 473 Ch.) is an example of this. Lord Cranworth, Lord St. Leonards, and Lord Wensleydale laid down the general rule in terms not substantially differing from each other; but when they came to apply them to the case in hand, there was a marked difference of opinion; We apprehend that no precise line can be drawn, but, that the court must, in each case, apply the admitted rules to the case in hand; not deviating from the literal sense of the words without sufficient reason, or more than is justified; yet not adhering slavishly to them, when to do so would obviously defeat the intention which may be collected from the whole will. Let us then, in the first place, see what were the material circumstances known to the testator in the present case. The state of the testator's family at the time he made his will, was as follows: He had one son alive, Francis (afterwards the second baronet), who was married and had then living two sons; Francis (afterwards the third baronet), and Robert, and three daughters, Elizabeth, Isabella, and Sarah. These were all young children at the time of their grandfather's will. The testator also had a daughter, Isabella, alive and unmarried. He had also either four or five grandchildren, the issue of a deceased daughter, Sarah, who had married a Mr. Reed, the eldest of whom was a son, John Reed, then in his twenty-first year. The statment in the case leaves it doubtful whether a fifth grandchild, Isabella Reed, survived the testator or not. Having made the earlier provisions in his will, the testator, if he recollected all these facts and understood the effect of his previous limitations, would have known that he had then in existence at least four grandchildren, the issue of his deceased daughter, Sarah, to whom nothing would come under the previous limitations in his will. He would also have known that it was very likely that the children of his son Francis might have daughters who might have descendants, and that the different tenants in tail male to whom he had limited estates, and his daughter, Isabella, might have daughters who might have descendants, and that the four children of his daughter Sarah might have descendants. He, therefore, knew that there were four persons, issue of his body, in existence, and a fair probability of a large number of persons, issue of his body, coming into existence who would take nothing under the previous limitations in his will. He also knew, or ought to have known, that when all the estates in tail male which he had created had died out, there was at least a probability that his estate, if not otherwise disposed of, would descend to coheiresses, and he has in his will, declared that it was his desire " to prevent, as far as may be, the dispersion of my estates amongst several persons." Such being the state of things, he devises his estates, in default of such issue (that is issue who would take under the several estates in tail male already created), "to the use and behoof of all and every other the issue of my body, and for default of such issue to my right heirs for ever." And the question which the court has to answer, we apprehend, is what intention do these words express when used by a testator with reference to such a state of the family, and in a will containing such previous limitations and such a declaration of the testators desire to prevent the dispersion of his estates amongst several persons. The Court of Exchequer came to the conclusion that the intention expresssd by the testator was, that his estates, as an entirety, were to go to all the issue of his body successively according to their order, and that the only means of effecting that intention was to apply the doctrine of Mandeville's case (Co. Litt. 26 b.), and construe the will as creating what has been sometimes called a quasi entail, as if the estate had been conveyed to the testator himself and the heirs of his body. If this be correct, there was a vested remainder in tail general created, which descended on Sir Francis Blake, the third baronet, and, who has executed a disentailing deed.and all the previous estates having expired, his devisees, who are the defendants, have the title, and all the plaintiffs fail. The plaintiffs' cases now before us dispute the propriety of this decision.
Allgood v Blake — Allgood v F. Blake.
These two actions are brought to recover different portions of property from different defendants, but are in truth one. Mr. Manisty, who appeared for the plaintiffs in both those actions, contended that the effect of the penultimate clause was to create a devise to a class, namely, to all the issue of the testator's body who should be in existence at the time when the last estate in tail male should expire, from the dying out of all the issue who took under the previous limitations. He argued that this devise vested the remainder in the four children of Sarah who were living at the testator's death, and that the class would open to receive each fresh person born afterwards, who was the issue of the testator's body, not being one of those who might take under the previous limitations in the will. As the devise is of the "estates" of the testator, these parties (if this construction is to prevail), would have taken the remainder in fee among them as joint tenants, had it not been for the devise over, in default of such issue, to the testator's right heir. This made it necessary to contend that they took separate undivided portions in the estates, each as tenants in tail general. In the events which have happened the result would be that, on the death of Mrs. Stag, the last tenant in tail under the previous limitations, the estates were to go to eight different persons as tenants in tail general of undivided parts in the whole; and also that several of those, being children of living parents, took estates tail in parts at the same time that their parents took estates tail in other parts. It is obvious that no testator was likely to wish to produce this result, and it is quite certain that this testator, who in the same will declares his desire "to prevent, as far as may be, the dispersion of my estate amongst several persons," did not wish to do so; and Mr. Manisty did not dispute this, and he admitted that it produced a very natural prejudice against his clients, which he said was only a prejudice, for the testator had used words (according to his argument), which expressed an intention to make this devise; and in effect he argued that the court below, instead of interpreting his will, had made a will for him. We think that the utmost that he succeeded in showing was, that a devise to "the use and behoof of all and every other the issue of my body" may, from the context or otherwise, be construed to mean a devise to such persons as answer that description as a class. But we thought that the word "issue" is, at least, quite as naturally used in the sense of heirs of the body as a word of limitation; and, consequently, that the decision of the court below, in these two cases of Allgood and others v. Blake, and Allgood and others v. F. Blake was right, and we therefore did not think it necessary to hear the counsel for the defendants in these two cases, but gave judgment in them, affirming the judgment below.
Reed V. Blake.
The plaintiff in this action is the heir male of the - body of John Reed, the eldest son of Sarah, the daughter of the testator, who died in his lifetime. Mrs. Roach, who is the plaintiff in the remaining action, is the only daughter of Mrs. Stag, the last tenant in tail male under the previous limitations of the will, and is also heir of the body of the testator. These two plaintiffs agree with the defendants in contending that the estates went, under the penultimate devise, as an entirety to some one who would take an estate in remainder, after the estate in tail male in Mrs. Stag; they agreed with each other in contending that the effect of the word "other" was to prevent this remainder from coming to Sir Francis, the third baronet; but they differed from each other as to who it was who took that estate tail. Mr. Bristowe, who argued for Mr. Reed, contended, not only that the word " other" did not include the issue absolute under the previous limitations, and who, by the supposition of the will, had failed before the penultimate limitation came into effect; but also that it did not include Mrs. Roach, who certainly was one of the issue of the body of the testator, who took no estate under the previous limitations, and who has, in no sense of the word, failed, but is now alive. We thought this not a tenable proposition; and as, in our opinion, Mrs. Roach's title, whether preferable to the defendant's or not, was preferable to Mr. Reed's, we did not call upon the counsel for the defendants to argue in this case, but affirmed the decision of the court below.
Roche V. Blake.
We felt more difficulty in this case, which we heard argued fully and very ably by the Solicitor General for the plaintiff, and Mr. C. Hall for the defendant, but after taking time to consider, we are all of opinion that in this case also the judgment of the court below was right, and ought to be affirmed. The words "other the issue of my body," used as they are immediately after speaking of the failure of particular issue, do, in their prima facie natural sense, mean issue different from those who have been spoken of before. It is, we think, not so accurate to say that the word other excludes those mentioned before, as to say that it does not include them. The Solicitor-General argued that the word had more force of exclusion, and Mr. Hall did not admit that it had so much. But the testator has been here speaking of the event of the failure of the issue to whom he had previously limited the estates, when the estate which he created by the penultimate limitation would vest in possession. And if he had in contemplation that time only, the issue of his body (who had by supposition died out) and all and every other the issue of his body, would together constitute the whole issue of his body. It is a very common thing to read words creating an estate in remainder which are such as prima facie refer to the expiration of the previous estate (and so would create an estate contingent till that event happened) as creating a vested estate in remainder from the time of the testator's death; cases to that effect will be found collected in 1 Jarman on Wills, 3rd edit. 764. They are all cases in which some violence is done to the words used, because of the great convenience of making the estate vested instead of contingent, and of the probability that the construction really effectuates the intention of the testator. And we think that in this case the intention of the testator clearly is that every one of the other issue should take, and if it is necessary, in order to effectuate that intention, we think the court are fully justified in construing the word "other " as being used with reference to the time of vesting in possession, and as a word not intended to be operative, but rather intended to be demonstrative; not intended to produce any effect, but to make the idea in the mind of the testator clearer, an intention which, no doubt, it fulfils very ill. The Solicitor- General with considerable reason said that a decision as to the construction of one will can rarely be a guide as to the construction of another not in the same words, but it seems to me that the counsel for the defendants are justified in their contention that the words of this devise are so similar to those used in the will set out in the special verdict in Burchett v. Durdant (2 Vent. 311), that the decision of the House of Lords in that case, that those words created an estate tail (the reasons for which are unfortunately not reported), must have proceeded on some principle applicable to the present case. But the main argument of the Solicitor-General was that it was in no way necessary to put any violence on the words, for that full effect could be given to the intention of the testator to give an estate to each and every of the other issue, without construing the words as creating a vested estate tail general, which would descend to and vest in Sir Francis, the third baronet, as heir of the body of the testator. Two ways in which this might be done were suggested. The first was by construing them as intended to create an estate in the testator, and the heirs of his body, exclusive of those heirs of his body who would take any estate under the previous limitations in the will. So that, if Sir Francis, the third baronet, had had a son and a daughter, the estate tail, which would have been suspended till the birth of that daughter, would have vested in her, subject to an estate tail vesting in any daughters of the son who might thereafter be born, and who would come in before her, which again would be subject to be divested on the birth of a niece, the daughter of her brother, if she had one, and so on as long as any male issue of Sir Francis, the third baronet existed. This the Solicitor-General called an estate in special tail; but no such estate ever has been known up to the present time. We do not think any such estate could be created; and we think it impossible to suppose that the testator intended to create such an estate. The other mode was what my brother Bramwell, in his judgment below, states was what he thinks the testator probably wished to say, though he thinks he did not say it. It was said we ought to construe this word " other" as meaning that an estate in tail general should be given to the daughters of the sons of his eldest grandson, or those who were the heirs of their bodies at the time when the estates in tail male expired, being contingent, as to the persons who were to take until that event happened. And, inasmuch as in the event of there being more than one such daughter, the estate would be divided amongst them as coheiresses, contrary to the testator's express desire to prevent the dispersion of his estates among several persons, it was suggested that such daughters were to take in succession, and on failure of their issue a new set of contingent limitations were to be implied, which, in the events that have happened, would have been forty-eight in number, and might have been many more. Perhaps, if the testator had given instructions to an able conveyancer, such as framed the earliest part of this will, to prepare a settlement for him to the effect which my brother Bramwell suggests, that conveyancer might have been able to frame limitations which would have effectuated his intentions. It would not have been easy, and the limitations would, when expressed, have probably been very voluminous; but it might, perhaps, have been done. But we think that, when we are asked to crowd into the one word "other" the whole of such a complicated limitation, we are asked to put a far greater strain upon the word than can be said to be put upon it by adopting the construction of the Court of Exchequer. Moreover, the construction contended for on behalf of the plaintiff makes all these numerous remainders contingent, whilst the other construction makes one vested remainder, which alone is a strong reason in favour of the latter. We therefore think that the judgment of the court below should, in this case, also be affirmed. Judgments affirmed.
Attorney for the plaintiffs in the first and fifth actions, W. G. Jennings, 18, Bennett's Hill, Doctor's Commons, E.G., agent for J. and N. G. Clayton, Newcastle-upon-Tyne.
Attorney for the plaintiff in the second action, W. G. Jennings, agent for G. M. Arnold, Gravesend.
Attorney for the plaintiff in the third action, W. G. Jennings, agent for Fenwick and Phillips, Newcastle-upon-Tyne.
Attorrey for the plaintiff in in the fourth action, Nicoll, Burnett; and Newman, 8, Howard-street.
Attorneys for the defendants in the four first actions, Gray Johnston,and Mounsey, 9, Staple Inn.
Attorney for the defendant in the fifth action, G. Knox, Bloomsbury-square, W.C., agent for J. Saunderson, Berwick-upon-Tweed.
For future reference I have extracted the text for this discussion.
Transcriber: Elizabeth Kipp
Recorded: 24 Mar 2014
Source: The National Archives, PROB 11/1656/302
Testator: Sir Francis Blake, Baronet
Place: Twisel Castle, Durham, England
Type of Record: Will
Date of document: 6 Aug 1808, probated 9 May 1822
Condition: 19th century English, legible copy
[Margin]: Sir
[Margin]: Francis
[Margin]: Blake
[Margin]: Baronet
[Margin]: 72
1 This is the last Will and Testament
2 of me Sir Francis Blake of Twisel Castle in the County of Palatine
3 of Durham Baronet First I give and bequeath all my personal estate
4 of what nature or kind soever except such parts thereof as are hereafter
5 specifically disposed of unto the Right honourable Earl Grey of Howick and
6 William Alder of Horncliffe in the said County palatine of Durham
7 Esquire their Executors Administrators and assigns upon trust to apply
8 the same and even part thereof (except as hereinbefore excepted) for or
9 towards payment of my just debts funeral expences and the pecuniary
10 legacies given in and by this my will or to be given by any codicil
11 or codicils to be by me added thereto next I give devise and bequeath
12 all and every my castles moneys messuages lands Tenements tythes
13 fisheries hereditaments and real estates whatsoever whether in possession
14 revision remainder or expectancy whereof I have any disposing
15 unto and to the only proper use and behoof of the said Earl Grey and
16 William Alder their heirs and assigns Upon trust that they or the survivor
17 of them or the heirs and assigns of such survivor do and shall with all
[Page 2]
18 convenient speed after my decease by mortgage sale or other disposition of
19 my said real estates or a competent part thereof levy and raise so much
20 money in and of my personal estate as shall be sufficient to fully answer
21 and pay the whole of my just debts funeral expences and the legacies
22 in and by this my Will given and bequeathed by any codicil or to be
23 give and bequeathed by any codicil or codicils to be by me added thereof
24 and do and shall in like manner in case there shall be a deficiency of my
25 personal estate levy and raise any sum or sums of money not exceeding in
26 the whole the sum of three thousand pounds of lawful money of Great Britain
27 and pay the same or any part thereof unto such person or persons at such
28 time or times and in such proportions and manner in all respects as my
29 dear Wife shall by any deed or deeds writing or writings with or without
30 power of revocation and new appointment to be by her sealed and delivered
31 in the presence of and to be attested by two or more credible Witnesses
32 or by her last Will and Testament in writing or any codicil or codicils
33 thereto to be by her respectively executed in the presence of and to be
34 attested by the like number of Witnesses shall direct or appoint and in
35 default of such direction and as to so much of the said sum of three
36 thousand pounds whereof no such direction or appointment shall be
37 made the same to sink into my real estate and not to be raised or paid
38 and for facilitating the levying and raising of such sum or sums of money
39 as shall be necessary for the purposes aforesaid by sale or mortgage
40 of my said real estates or a competent part thereof I do hereby
41 declare that the receipt of receipts of the said George Earl Grey and William
42 Alder or the survivor of them or the heirs or assigns of such survivor shall
43 from time to time be a good and sufficient discharge or good and sufficient
44 discharges to any purchaser or purchasers mortgagee or mortgagees of my
45 said real estates or any part or parts thereof and that such purchases or
46 purchasers mortgagee or mortgagees his her or their heirs Executors Admors
47 or assigns shall not after payment of his her or their purchase or mortgage
48 money and obtaining such receipt or receipts for the same as aforesaid
49 be bound or obliged to ascertain the quantum of money necessary to
50 be raised or to see to the application thereof or answerable or accountable
51 for any loss misapplication or nonapplication thereof and as to such
52 so much and such parts and part of my said real estate as shall
53 remain unsold or undisposed of for or towards pursueing the purposes
54 aforesaid and as to the Equity of redemption of such part or parts
55 thereof as shall be mortgaged for or towards answering the same
56 purposes upon trust to stand seized thereof in the first place for the
57 further and better serving to my said dear Wife the payment of
58 the jointure or jointures secured or intended to be secured to
59 her by the settlements executed upon our marriage and which by
60 several acts done by her since that period for my accommodation
61 touching or concerning the estates comprised in the said settlements
62 some parts thereof she may have weakened or endangered and in the
63 next place in trust for my eldest Son Francis Blake and his assigns
64 for the term of his natural life without impeachment of waste and
65 immediately after his decease in trust for the first second third fourth
66 and all and every other the Son and Sons of my said Son Francis
67 Blake lawfully to begotten severally and successively according to
68 seniority of one and the several and respective heirs male of the body
69 and bodies of all and every such son and Sons lawfully issuing and for
70 default of such issue in trust for my said second son Robert Dudley
71 Blake and his assigns for the term of his natural life without
72 impeachment of waste and from and after his decease in trust for the
73 first second third fourth and all and every other the Son and Sons of my
74 said Son Robert Dudley Blake lawfully to be begotten severally and
[Page 3]
75
76
77
78
79
80
81
82
83 and respective heirs male of the body and bodies of all and every
84 such Son and Sons lawfully issuing and for default of such issue
85 in trust for my third Son William Blake and his assigns for the
86 term of his natural life without impeachment of waste and from
87 and after his decease in trust for the first second third fourth and
88 all and every other the Son and Sons of my said Son William
89 Blake lawfully to be begotten severally and successively in like
90 manner and the several and respective heirs male of the body and
91 bodies of all and every such Son and Sons lawfully issuing and
92 for default of such issue in trust for my eldest daughter Elizabeth
93 Blake for the term of her natural life without impeachment of
94 waste subject nevertheless to the proviso or condition hereinafter
95 contained in regard to any husband she may marry assuming the
96 name of Blake and from and after her decease in trust fore the
97 first second third fourth and all and every other the Son and Sons
98 of my said daughter Elizabeth lawfully to be begotten severally
99 and successively according to seniority of age and the several and
100 respective heirs male of the body and bodies of all and every such
101 Son and Sons lawfully issuing and for default of such issue in
102 trust for my second daughter Isabella Blake for the term of her
103 natural life without impeachment of waste subject nevertheless
104 to the same proviso or condition in regard to any husband she
105 may marry and from and after her decease in trust for the first
106 second third fourth and all and every other the Son and Sons of
107 my said daughter Isabella lawfully to be begotten severally and
108 successively in like manner and the several and respective heirs
109 male of the body and bodies of all and every such Son and Sons
110 lawfully issuing and for default of such issue in trust for my
111 third daughter Eleanor Ann Stag for the term of her natural life
112 without impeachment of waste subject nevertheless to the same
113 proviso or condition in regard to her present husband or any
114 husband she may hereafter marry and from and after her decease
115 in trust for the first second third fourth and all and every other
116 the Son and Sons of my said daughter Eleanor Ann lawfully
117 to be begotten severally and successively in like manner and the
118 several and respective heirs male of the bodys and bodies of all and
119 every such Son and Sons lawfully issuing and for default of such issue
120 in trust for my own right heirs for ever provided always and I do
121 hereby declare my will to be that my said real estates hereinbefore
122 devised or limited to my said daughter Elizabeth Blake and to the
123 first and others Sons and the heirs male of the respective bodies of
124 such Sons and to my said daughter Isabella Blake and to her first
125 and other Sons and the heirs male of the respective bodies of such
126 Sons and to my said daughter Elleanor Ann Stag Blake and to her first and
127 other Sons and the heirs male of the respective bodies of such Sons
128 so devised or limited upon this express condition that they my said
129 several daughter and the husband of my said daughter Eleanor Ann
130 Stag and the several and respective husband of such of them as shall
131 marry and their respective Sons and issue male who are to take by
[Page 4]
132 virtue of and under the limitations hereinbefore contained do and shall when
133 and as they shall respectively come into and be in the actual possession of
134 my said real estates or any part thereof by virtue of or under this my
135 Will and during such time as they respectively shall be in possession of
136 the same estates and premises or any part thereof and for ever thereafter
137 assume and take upon himself herself and themselves respectively and
138 continue to use the surname of Blake only and no other surname and
139 bear the Coats of Arms of that family and shall in all deeds writings
140 Letters and other instruments of writing be stand and called by the
141 surname of Blake only and set and subscribe and write his her and
142 their surnames respectively Blake only to all and every such deeds
143 writings letters and other instruments and that in case such person or
144 persons as aforesaid shall neglect or refuse so to do for the space of
145 Six calendar months next after he she or they shall become so intitled
146 to the said estates as aforesaid the person so neglecting or refusing shall
147 not have or take any benefit estate or interest under or by virtue of
148 this my Will of or in the said estates and premises and that in such
149 case the person who by virtue of the limitations aforesaid is to take
150 next in remainder after the person or persons so neglecting or refusing
151 shall enter upon have and enioy all the said estates and premises in
152 as full and beneficial a manner as if the person or persons so
153 refusing or neglecting were actually dead provided that such person in
154 remainder to take by virtue or in consequence of such neglect or
155 refusal shall assume and take upon him or her and continue and use
156 the surname of Blake only and bear the Coat of Arms of Blake as
157 aforesaid provided also and I do hereby declare that it shall and may
158 be lawful to and for my said Sons Francis Blake Robert Dudley
159 Blake and William Blake and my daughters Elizabeth Blake Isabella
160 Blake and Eleanor Anne Swag Blake respectively from time to time when and
161 as he or she shall respectively be in possession or intitled to the rents
162 and profits of my said estates by virtue of this my Will by indenture or
163 Indentures to be sealed and delivered by him or her in the presence of and
164 attested by two or more credible witnesses to make any demise or lease
165 demises or leases of all or any part of parts of my said manors and
166 premises with their appurtenances to any person or persons for any term
167 or number of years not exceeding fifteen years from the time of
168 the making thereof so as there be reserved to every such demise or
169 lease the best and more improved yearly rent to be incident to the
170 immediate reversion of the premises to be demised that can or may
171 be reasonably had or obtained for the same without taking any fine
172 premium or benefit or sum or sums of money or other thing for the
173 making thereof and so as these be contained in every such demise or
174 lease a condition of reentry on nonpayment of the rent or rents thereby
175 to be reserved and so as the respective lessees or Grantees to whom
176 such demises or Leases shall be made do execute counterparts of their
177 respective leases and do thereby covenant for the due payment of the
178 rents thereby to be reserved and so as all such demises or leases be
179 so framed as there be not contained therein any Clause or Clauses whereby
181 any power or authority shall or may be given to any Lessee or Lessees
182 to commit waste or to exempt him or them from punishment for committing
183 waste and that the several lessees their Executors Administrators and
184 assigns be thereby obliged to observe a due course of husbandry with
185 regard to the lands to be to them respectively demised and whereas
186 my late father Sir Francis Blake Baronet by his Will dated the eight
187 day of January one thousand seven hundred and eighty after giving
188 several specific and pecuniary Legacies devised all the residue of his
189 personal estate unto and among my younger Children in the following
[Page 5]
190 words that is to say and thus charged and chargeable with these
191 several legacies and orders I make the younger children of my said
192 Son Francis Blake as residuary Legatees intitled unto the remainder and
193 reversion of my personal estate share and share alike and appointed
194 me and my said Sister Isabella Executors of his said Will But I
195 alone proved the same and possessed my self of the clear residue of
196 his personal estate which according to the highest estimate did not
197 exceed six thousand pounds in value and there being no direction in
198 my said fathers Will respecting the application thereof or of the
199 interest or annual produce thereof during the minority of my younger
200 children I have even since retained the same in my own lands and
201 whereas I had five younger children living at the decease of my said
202 father and I have now the same number But one of those who were
203 living at the death of my father namely Sarah soon afterwards
204 departed this life an infant of tender years and one of my present
205 younger children namely Eleanor Ann was born after his decease
206 whereby doubts are entertained whether she is entitled to any part or
207 share of his residuary personal estate but I have been advised that
208 I am entitled to the share of my said daughter Sarah who died
209 an Infant after the decease of my said father as her next of kin
210 and that I have a right to retain give the same to my daughter
211 Eleanor Ann should she not be entitled to a part of share in such
212 residuary estate with my other younger children under my said fathers
213 Will and I have also been advised that I have a right to retain
214 the interest and annual produce of the same residuary estate during
215 the minority of my said younger children towards their maintenance
216 and education but this latter right and even other right in or to the
217 said residuary personal estate I wish to relinquish so as my said
218 daughter Eleanor Ann may partake thereof equally with my other younger
219 children which I believe was the real intention of my said father that
220 all my younger children should share alike and in order to avoid all
221 arguments after my decease and all disputes in respect of the residue
222 of my said fathers personal estate or the application thereof or of
223 the interest or annual produce thereof I have upon the marriage of
224 my daughter Eleanor Ann with Bethel Earnshaw Stag Esquire
225 secured the sum of two thousand pounds to and for and in lieu of
226 her part of share of my said fathers residuary personal estate where
227 upon she and her said husband executed to me a release of all claims
228 and demands in respect thereof and I have given or mean to give
229 bonds to all my other children for payment of two thousand pounds
230 a piece in lieu of their said respective shares of my said late
231 fathers residuary personal estate and the interest and annual produce
232 and increases thereof up to the date of the said respective bonds and
233 which they have agreed to accept in full satisfaction thereof and
234 they have executed or intent to execute releases to me of all
235 claims and demands in respect of such residuary estate and the
236 interest annual produce and increases thereof Now I do hereby subject
237 and charge my real estate with the payment of the said sums of
238 two thousand pounds a piece from the date of the said Bonds given
239 or intended to be given for the same and in case no bond shall
240 be given then from the date of this my Will to my said younger
241 children except the said Eleanor Ann who hath already received any security for
242 hers upon condition that they respectively release all my estates real
243 and personal of and from all claims and demands in respect of my
244 said fathers residuary personal estate and the interest annual produce
245 and increase thereof in case such releases shall not be given and
246 executed by them in my lifetime and whereas I have in pursuance of
[Page 6]
247 a power given to me in and by the said respective settlements executed
248 upon or previous to my marriage of appointing two sums of ten thousand
249 pounds each or thereabouts to and among my younger children in such
250 proportions as I should think proper appointed four thousand pounds or rather
251 two sums of two thousand pounds each making together four thousand pounds
252 part of the said two sums of ten thousand pounds each to my Son
253 Robert Dudley Blake as and for his part or share of the said last
254 mentioned sums and I have since the making of such appointment paid
255 to him the said sum of four thousand pounds and taken an assignment of
256 his interest therein whereby I am become entitled to that sume in my
257 own right and upon the marriage of my said daughter Eleanor Ann with
258 the said Bethel Earnshaw Stag I also executed an appointment of the like
259 sum of four thousand pounds or rather two sums of two thousand pounds
260 each as and for her part or share of the said two sums of ten thousand
261 pounds each and also advanced and secured to her besides the sum
262 of four thousand pounds so as to make up her fortune with her share
263 of her Grandfathers personal estate the full sum of ten thousand pounds
264 and it is my intention to execute a like appointment of four thousand
265 pounds or rather of two sums of two thousand pounds over to my two
266 unmarried daughters Elizabeth and Isabella and to my only other
267 younger Son William as and for their respective parts or shares of
268 the said two sums of ten thousand pounds each when and as they shall
269 severally marry or have occasion for the same in my lifetime and
270 in the interim I do by this my Will in pursuance of the powers given
271 and reserved to me by the said respective settlements direct limit
272 and appoint the sum of two thousand pounds out of each of the said
273 respective sums of ten thousand pounds to each of my said two
274 daughters Elizabeth and Isabella and to my Son William as and for
275 their respective parts or shares of the said two sums of ten thousand
276 pounds each secured for the portions of my younger children by my
277 said marriage settlements and I give and bequeath to my said
278 daughter Elizabeth over and above the appointed shares of the said
279 sums of ten thousand pounds and her share of her grandfathers personal
280 estate the sum of four thousand pounds of lawful money of Great Britain
281 so as to make up her fortune the full sum of ten thousand pounds I
282 give to my dear Wife the use of any house that I may possess at
283 the time of my decease together with all the Offices Stables and
284 other appurtenances thereunto belonging and the use also of all such
285 furniture plate books paintings and prints as may be therein for
286 the space of six months next after my decease I also give and
287 bequeath to my said dear Wife absolutely for her own use and at
288 her own free will and disposal all my horses and carriages table
289 and other linen and also all my Jewels plate furniture prints books
290 and other household effects whereof I have power to dispose I give
291 the family pictures and all my paintings and books of every kind to
292 the person who for the time being shall be entitled to and in possession
293 of the Estates settled in and by my said fathers Will to go along with
294 such estates as heir locus as far as the rules of Law or Equity will
295 admit and I give unto the said Earl Grey and William Alder the
296 Trustees of this my Will one hundred pounds a piece as a small
297 Testimony of my regard and my will is that they my said Trustees
298 or either of them or the heirs Executors or Administrators of either of
299 them shall not be answerable or accountable for any sum or sums
300 of money or other effects which shall be had and received under
301 and by virtue of this my Will but such only as shall actually come
302 into his and their hands respectively and that the one of them shall not
303 be answerable or accountable for the other of them of for the acts
[Page 7]
304 receipts neglects or defaults of the other of them or for the misbehavior
305 neglect default failure indecency or insufficiency of any person to be
306 by him or them employed respectively as or in nature of a Bailiff
307 receiver Steward Collector or agent (all which persons my said Trustees
308 and hereby authorized to employ accordingly or in any other capacity in
309 or about or in any wise concerning the said premises or any part
310 thereof) nor for any other misfortune loss or damage except the same
311 shall happen by or through their or his own wilful default and also
312 that they my said Trustees and each of them their and each of their heirs
313 Executors Administrators and assigns shall by and out of my real and
314 personal estates reimburse themselves and himself and allow to his co
315 Trustees all such necessary costs charges damages and expences as they
316 either or any of them shall or may suffer expend disburse bear or be
317 put unto in or about the execution of the said trusts hereby in them
318 reposed or in any wise relating thereto and I do hereby nominate
319 constitute and appoint my said dear Wife sole Executrix of this my
320 last Will and Testament and lastly I do hereby revoke all former and
321 other wills codicils and other testamentary dispositions by me at any time
322 heretofore made and I do declare this only to be and contain my last
323 Will and Testament In Witness whereof I the said Sir Francis Blake
324 have to two parts of this my last Will and Testament both of the
325 same tenor and date and each part contained in ten sheets of paper
326 set my hand and seal respectively (that is to say) my hand at the
327 bottom of each of the nine preceding sheets and my hand and seal
328 to the last sheet and my seal at the top where all the said
329 sheets are fastened together this sixth day of August in the year
330 of our Lord one thousand eight hundred and eight Francis
331 Blake Signed sealed published and declared by the said Testator
332 Sir Francis Blake as and for the last Will and Testament in the presence
333 of us who at his request and in his presence and in the presence of each
334 other have subscribed our names as Witnesses thereto An[thon]y Lambert
335 J Lambert John Burrell
336 Whereas I Sir Francis Blake of Twizel Castle
337 in the County Palatine of Durham Baronet have made my last Will
338 and Testament bearing date the sixth day of August last whereby I
339 have given devised and bequeathed all and every my castles Manors
340 messuages Lands Tenements tythes Fisheries hereditaments and real
341 estate whatsoever unto the right honourable Earl Grey and William
342 Alder Esquire their heirs and assigns upon such trusts and to and for
343 such intents and purposes as therein mentioned of and concerning
344 the same now I do hereby reserve retain and except out of the said
345 devise to dispose of hereafter as I may think proper all that my
346 Tenement or farmhold called Fowberry Moor Farm the deer park of
347 Fowberry and all such other part and parts of the Manor or reputed
348 Manor of Fowberry in the county of Northumberland as I have not sold
349 and conveyed to Matthew Culley Esquire and also all my parts and
350 shares of and in the several farmholds Lands and Tenements in the
351 County of Durham commonly called the Ayton Estate the same having
352 come by and descended from my Mother Isabel Ayton and subject to
353 such reservation I do hereby confirm the said devise so made to the
354 said Earl Grey and William Alder upon the several trusts respecting
355 the same and I do hereby give and bequeath unto my Son Robert
356 the further sum of two thousand pounds in addition to the provision
357 made for him by my said Will which with the sum of two
358 thousand pounds secured or intended to be secured by Bond as
359 mentioned in my said Will and the sum of four thousand pounds
360 already
[Page 8]
361 already paid to him and for which he has granted releases and the sum
362 of two thousand pounds left to him by the Will of my late Sister Isabella
363 Blake make together the sum of ten thousand pounds and is in full of
364 the provision intended for him and I do hereby give and bequeath
365 unto my daughter Isabella the further sum of three thousand pounds
366 which with the provision made for her by my said Will and a
367 legacy of one thousand pounds left to her by the last Will of the late
368 doctor Hewitt make together the sum of ten thousand pounds and is in
369 full of the provision or fortune or intended for her and I do hereby
370 give and bequeath unto my Son William the further sum of two
371 thousand pounds which with the provisions made to him by the said Will
372 of my said late Sister make together the sum of ten thousand pounds
373 and is in full of the provision intended for him it being my will
374 and intention that each and every of my children except an eldest Son
375 shall have a fortune or provision made for them to the extent of
376 ten thousand pounds a piece and not more from whatever source
377 the same may be derived and it is my Will in case my Son Robert
378 shall become an eldest Son by the death of his brother Francis before
379 the legacy of two thousand pounds given by this codicil to my Son
380 William shall become payable then I do hereby revoke the said legacy
381 or bequest so hereby given to my said Son William as he will in
382 such event become entitled to the sum of four thousand pounds instead of
383 two thousand pounds under the said Will of my said late Sister and in
384 case my said daughter Elizabeth and my said younger children Robert
385 Isabella and William or any of them shall die before their respective
386 legacies of four thousand pounds given by my said Will to my said
387 daughter Elizabeth and of two thousand pounds given by this my codicil to
388 my Son Robert three thousand pounds to my daughter Isabella and two
389 thousand pounds to my Son William shall severally become payable then
390 the said legacy of her him or them so dying will lapse and not be or
391 be liable to be raised or paid but it is my will in case any of them
392 so dying shall happen to have any issue lawfully begotten living at the
393 time of their death or born in due time afterwards then the legacy
394 of him her or them so dying shall go to and be paid to such issue
395 respectively it being my intention that such several legacies of four
396 thousand pounds two thousand pounds three thousand pounds and two
397 thousand pounds shall respectively lapse and sink unto the residuum of
398 my estate only when such of the said legatees shall die without
399 leaving legitimate issue as aforesaid and I do hereby declare this writing
400 to be a codicil to my said Will and to be accepted and taken as part
401 thereof as fully and effectually to all intents and purposes as if the
402 same had been actually inserted therein In Witness whereof I the said
403 Sir Francis Blake have to this Codicil or writing contained in this and
404 the two preceeding sheets of paper set my hand to the first and second
405 sheets and my hand and seal to this third and last sheet thereof the
406 seventeenth day of September in the year of our Lord one thousand
407 eight hundred and eight Francis Blake This writing was signed
408 and sealed by the above named Sir Francis Blake and by him published
409 and declared as a Codicil to his last Will and Testament in the presence
410 of us who in his presence at his request and in the presence of each
411 other have hereunder subscribed our Names as Witnesses Rob[er]t Thompson
412 Hen[r]y Brumell J Lambert
413 Whereas I Sir Francis Blake Baronet have
414 by my Codicil hereinbefore written and duly executed by me bearing
415 date the seventeenth day of September one thousand eight hundred and
[Page 9]
416 and eight given unto my Son Robert the further sum of two thousand pounds
417 in addition to the provision made for him by my Will refered to by such
418 Codicil and unto my daughter Isabella the further sum of three thousand
419 pounds and unto my Son William the further sum of two thousand pounds now
420 I do hereby expressly will and declare that the said three several legacies of
421 two thousand pounds three thousand pounds and two thousand pounds so
422 given by my said Codicil to my said three children Robert Isabella and
423 William respectively are given upon and subject to the express condition
424 that they shall have severally granted releases to me of all claims and
425 demands in respect of the residuary estate of my late Father and in
426 case any of them shall neglect or refuse to execute and shall not execute
427 such release then I do hereby revoke and make void the said respective
428 legacy of him her or them who shall not have executed such release as
429 aforesaid and do confirm the legacy of him her or them who shall have
430 executed the same and I declare this writing to be a further and
431 second Codicil to my Will In Witness whereof I the said Sir Francis Blake
432 have to this Codicil or writing subjoined to the former Codicil set my hand
433 and seal this seventh day of February one thousand eight hundred and ten
434 Francis Blake This writing was signed and sealed by the above
435 named Sir Francis Blake and by him published as a further Codicil to his
436 last Will and Testament in the presence of us who in his presence at his
437 request and in the presence of each other have hereunder subscribed our
438 names as Witnesses An[thon]y Lambert James Darling Matthew Hall
439 A Codicil to the last Will and Testament of me Sir Francis
440 Blake of Twizle Castle in the County palatine of Durham Baronet whereas
441 upon the death of my dear daughter Elizabeth Blake Spinster intestate
442 I became intitled as her sole next of kin to all the portion or fortune
443 provided for her as one of my children under and by virtue of my marriage
444 settlement but which it is my wish to sink into the estate charged
445 therewith now therefore I do hereby remove and release the person or
446 persons who for the time being shall be entitled to the estates charged
447 with the said portion or fortune or with any part thereof and also the
448 same estates and every part thereof of and from the payment of the
449 same portion or fortune and of every part thereof and of and from all
450 interest in respect of the same and also of and from all actions and suits
451 in respects thereof to the end and intent that the said portion or fortune
452 may not be raised but sink into the estate or estates charged therewith for the
453 benefit and advantage of the owner or owners thereof for the time being
454 and I do hereby moreover revoke and recall all and every other codicils
455 or Codicil heretofore made by me to my said last Will and Testament
456 Witness my hand and seal this twenty seventh day of February in the
457 year of our Lord eighteen hundred and seventeen Francis Blake Signed
458 sealed and published by the said Sir Francis Blake as and for a Codicil
459 to his last Will and Testament in the presence of us who have subscribed
460 our names as Witnesses in his presence John Renton of the City of Edinburgh
461 Writer to the Signer Joseph Grant of the said City Writer to the Signer Hen[r]y
462 Sprot of the said City apprentice to the said John Renton
463 A Codicil to be added to and adjudged and taken as part of the
464 last Will and Testament of me Sir Francis Blake of Twizle Castle in the
465 County of Durham Bar[one]t whereas my daughter E. A. Stay having some time
466 since by causes sufficient and well grounded I believe separated from
467 her husband and returned to my family where she now resides I am
468 desirous of making some certain provision for her from the time of my
469 decease during the continuance of such separation or until she shall
470 have obtained from her husband by mutual agreement or consent or by
471 due
[Page 10]
472 due course of Law or otherwise a suitable and adequate separate allowance
473 or provision over and above her present money of two hundred pounds a
474 year now I do by this Codicil give and bequeath to my said daughter
475 one annuity or clear yearly sum of five hundred pounds of lawful
476 british money clear of all deductions whatsoever to commence from the
477 day of my decease if my said daughter shall be then living separate
478 from her said husband and to continue payable to her for her own
479 sole and separate use during such separation by equal half yearly
480 payments and the first half yearly payment thereof to be made
481 within one month after my decease and I subject and charge all my
482 real estate with the payment of the said annuity of five hundred
483 pounds and direct the Trustees of my Will whom I also make Trustees
484 for my daughter of this annuity to pay the same accordingly but in
485 case my said daughter shall be living with her husband at the time of
486 my decease (whereby the said annuity cannot then take effect) and she
487 shall afterwards separate from him then it is my Will that the said
488 annuity shall commence from the day of such last mentioned separation
489 and be paid and payable half yearly during the continuance thereof
490 and so from time to time as such an Event may happen but only during
491 the period of separation it being my will and meaning that the said
492 annuity shall cease from and during the time of the cohabitation of my
493 said daughter with her said husband or from the time she shall have
494 received or recovered from her said husband an adequate and suitable
495 separate allowance or provision by which I mean an allowance or
496 provision equal at least if not superior to the said annuity over and
497 above her pin money and in case a less sum shall be awarded or
498 allowed then I desire that the deficiency may be made good and raised and
499 paid out of my real estate In Witness whereof I have to this codicil
500 set my hand and seal this eighth day of January in the year of our Lord
501 one thousand eight hundred and eighteen Francis Blake Signed
502 sealed published and declared by the said Sir Francis Blake as and for
503 a Codicil to be part of his last Will and Testament in the presence of us who have
504 subscribed our names as Witnesses thereto in the presence of the said Testator
505 Tho[ma]s Wright of Louth house Edin[burg]h Rob[er]t Strachan of Edinburgh Writer
506 to the Signer Jas J Darling of Edin[burg]h Apprentice to the above Rob[er]bt Strachan
507 On the 9th May 1822 Admon with the Will and four Codicils annexed
508 of the Goods Chattels and Credits of Sir Francis Blake late of Twizel Castle
509 in the County of Durham Baronet deceased was granted to Sir Francis Blake
510 Baronet the Son one of the persons intitled to the undisposed residue of
511 the personal estate and effects of the said deceased being first sworn
512 duly to adm[iniste]r dame Elizabeth Blake Widow the Relict and sole Executrix
513 named in the said Will having first renounced as well the probate and
514 execution of the said Will and Codicils as also the letters of Admon with
515 the said Will and Codicils annexed of the Goods of the said deceased as
516 the Relict and one of the persons intitled in the distribution to the
517 undisposed residue of the personal estate of the said deceased as by
518 the Acts of Court appear
519 On the 23rd December 1865 Admon (with the Will annexed) of the personal estate and effects
520 of Sir Francis Blake late of Twizel Castle formerly in the County of Durham but now in the County
521 of Northumberland Baronet deceased who died 2nd June 1818 at Cornhill in the said County of
522 Northumberland left unadministered by Sir Francis Blake Baronet deceased whilst living
523 the natural and lawful Son and one of the next of kin of the said deceased was granted to Helen
524 Blake Widow the acting Executor of the Will and Codicils of the said Sir Francis Blake (the Son) she
525 having been first sworn. Dame Elizabeth Blake the lawful Widow and Relict of the said deceased the
526 sole Executrix named in the said Will having renounced the Probate and execution of the said Will
527 and Codicils No Residuary Legatee being therein named The Right Honorable Charles Earl Grey and William
528 Rowland (in the said Will written William Alder Esquire) the Residuary Legatees in Trust named
529 in the said Will and Robert Dudley Blake the natural and lawful Son also and one of the next of kin
530 of the said deceased being dead Eleanor Ann Blake (formerly Stag) Widow the natural lawful daughter and only
531 other next of kin of the said deceased having been duly cited with the usual intimation but not having in any
532 wise appeared And the said Dame Elizabeth Blake Sir Francis Blake (the Son) Robert Dudley Blake
533 and Eleanor Ann Blake being the only persons entitled in distribution to the personal estate and
534 effects of the said deceased not disclosed of by his said Will
No comments:
Post a Comment