Davidge v. Chaney

4 H. & McH. 393

Opinion

Chase, Ch. J.

The court are of opinion, that where the words in a will would create an estate-tail in lands either expressly or by implication, that the limitation over of personal property is not good, unless indefinito expressions, dying without issue, or heirs of his body, are restricted by some expressions or words in the will indicative of an intention that the first estate should cease on the first taker’s dying without leaving issue at the time of his death.

Judgment upon the case stated for the defendant,

Footnotes

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(a)

Opinion of the late Daniel Dulany9 Esquire, upon the samo question.

eí I am of opinion, that the limitation to T. B. Hodgkin is good. There are a great variety of cases on this subject; and general rules have been laid down by reporters, where the determinations have been on the particular penning of wills. Where there is a limitation over of personal estate upon a dying without issue, unless there be some words in the will to restrain the meaning to a dying without issue living at the death of the person to whom the bequest is first made, the limitation over is void; for where the words of the will are general and unrestrained, issue is nomen collectivum, and ex vi termini takes in the whole question In the case oFinbury and FUIcin, the chancellor construed the words after her decease, as at her decease, and relative to the decease. The case of Atkinson and Hutchinson. was of a term for life, remainder to the children A. shall leave at his death, &,c. The whole bequest was coupled, and on the particular penning of the will, the devise over was held good by Lord Talbot. In the case of Forth and Chapman, the words were, if the nephews, should die and leave no issue, &c. which Lord Macclesfield said related to the time of their deaths. In the case of Nicholh and Hooper* the words were, to be paid within six month after the death of the sur-> vivor, &c. which restrained it to a dying without issue at the time of the death.

In the case of Beauclerk vs. Dormer, the above cases, and many, others upon the same head, are remarked upon by Lord Hardwicke9< whose opinion is, that a dying without issue, without some restriction arising from the words of the will, are not to be understood dying without issue living, &c. and he observed, that he did not know of one instance of it, and cited the case of Green and Rod against it.” But upon the particular penning of the present will, I think it pretty clear, that the limitatirn over is good. The bequest for life to T B. and after his decease to any child he should have, and in case of his death without usue, &c. i. e. without having any ch Id By the plain words of the will immediately upon, or at the decease of ,T. B. such child would take, and in case of no such child to take, then T. B. Hodgkin was to take, so that his taking depended upon T B’s. having no issue to take., i. e. having no issue living at the time of his decease.”