1754.

BELCHIER

agt. PARSONS.

Wood gave notice of his claim was after the commission; it is not shewn but that he might have had the bill of sale, had he required it; the contract with the commissioners of the navy could not prevent his taking possession, the ownership continued in the contractor. Mrs. Parsons' ie, CHANC. ceiving the money from the commissioners, is an instance of the great inconveniences that might be occasioned by Wood's laches, in not endeavouring to obtain the visiblę ownership, for, if their argument be true, Mrs. Parsons had no right to receive it. It is plain he has not complied with the rules I mentioned, which were so solemnly established in that case, that the court will do nothing to enervate them. The cases cited are not similar: in Brown v. Heathcot, the pledgee had used the utmost diligence to obtain actual possession: he did every thing possible to obtain it; and as there is so vast a quantity of property which does not lie in livery, actual possession might be dispensed with, where every thing possible had been done to obtain it. Wood was so far from doing this, that he left the vendor, (for Mrs. Parsons, standing in the place of the bankrupt, must in this respect be considered as the bankrupt himself) to transact the affairs relative to it with the commissioners of the navy, &c.

Here the court said, as Mr. Clarke laid so great a stress on Mrs. Parsons receiving the money of the commissioners, they enquired in what right she received it; and it appeared it was as a purchasor, and after the mortgage was paid off; the sale being on the 10th, the mortgage paid off the same day, and the application to the commissioners afterwards.

Mr. Henley insisted, the mortgagee ought to have given immediate notice to the master that the property of the ship was transferred to him, for on the knowledge of

the master the reputation of ownership entirely depends: it would then have been known to be Wood's ship, and Holden could not have obtained a false credit by it.

Mr. Sewell observed, that one of the contracts with the government was subsequent in point of time to the mortgage, and therefore one of the ships was entirely out of the reasoning the gentlemen went on, so that of that he might have delivered actual possession: and as to the two others, the mortgagee might have applied to the commissioners, as Mrs. Parsons did after, and been received with them as owner.

LORD CHANCELLOR. This is a material distinction. Apply yourselves to this ship, and consider against Monday whether any other possession might have been delivered of it; give yourselves no further trouble about the others.

1754.

BELCHIER

agt.

PARSONS.

CHANC.

1754. April 25.

After an express limitation in a will

of an estate for life, with

remainders over, these words, "and

LETHIEULIER agt. TRACY.-CHANC,

THIS cause, which was ordered to stand over, now came on again on the same exception, and on a supplemental bill, filed by a son of Mr. and Mrs. Tracy, born since that time.

The question which the Chancellor made in delivering in case M.D. his opinion was now argued.

(the tenant

for life) dies without issue," will not operate to make the

remainders contingent, or create an estate tail in

the tenant for life. 3 Atk.

774 and 784. S. C. Ambler, 204 and 220. S. C.

For the plaintiff were cited the cases of Lodington v. Kime, 3 Lev. 431, Shaw v. Weigh, Eq. Ca. Ab. 183, Bamfylde v. Popham, 2 Vern. 427, to prove that where there is an express estate for life given, and limitations to issue, &c, and then it is added, that "if tenant for life dies without issue, or the like, it shall go over;" this shall

not be construed to enlarge the estate of tenant for life, but shall be deemed relative to such issue to whom preceding estates had been limited.

That such construction would be most agreeable to the testator's intention, and ought here to take place the rather for that this was a devise not of lands, but of money to be laid out in lands; so that this was a trust executory, and ought to be executed according to the testator's intention, a distinction which was allowed by the court in the case of Papillon v. Voyce, 2 P. Wil liams, 478.

LORD CHANCELLOR.-Such a distinction was taken in that case, but the determination was not founded on it.

The general rule, that no implication shall take effect against an express limitation, is going too far, and has been since dispensed with: Lord Trevor, who concurred in Bamfylde and Popham, 1 P. Williams, 56, was one of the judges who certified in Langley v. Baldwin, Eq. Ca. Ab. 185, whence it may be inferred, notwithstanding there seems a difference in the grounds on which those two cases were determined, he did not apprehend there was any contrariety in them.

Mr. Wilbraham.-Where the words from which the implication is contended to arise have any terms of reference, as, in default of such issue,' I do not know that these words have ever been held to create an estate tail by implication. The case of Langley v. Baldwin, and the Attorney General v. Sutton, were limitations to a certain number of sons, and, in default of issue generally, limitation over: and, to be sure, whatever number of sons are named, be it even to the 20th nomination, as long as a possibility remains of more being born, it would be an estate tail, however remote that possibility be, for it could not be intended that the testator meant to disinherit any of his grandsons: but in Attorney General v. Sutton, P. Williams, 760, it was argued, if I remember right, that had it been such issue' it would have been otherwise.

LORD CHANCELLOR.-In Langley v. Baldwin, though they were sons of the first taker, they were great grandsons of the testator.

Mr. Wilbraham. There is a case however of Blackburn v. Edgley, 1 P. Williams, 605, where daughters were omitted, and yet the court would not construe it an

1754.

LETHIEU

LIER

agt. TRACY.

CHANC.

1754.

LETHIEU

LIER

agt. TRACY.

CHANG.

estate tail: it was a devise to A. for life, remainder to his first, and other sons, in tail male, remainder to his daughters, in tail general," and if A. die without issue "of his body," not "such issue," remainder over; and it was held not to give him an estate tail, for that it did not appear the testator intended the daughters of A.'s sons should take.

On the same side was cited the case of Turke v. Frencham, Dyer, 171: and, as the argument for raising an estate tail by implication in Mrs. Tracy was founded on the improbability of the testator's intention to prefer a stranger to the issue female of his grandsons, it was observed, that parental affection was not considered in law as extending forcibly further than grandchildren: that the legislature, in 43 Eliz., require a provision only for children, and grandchildren; and that this court does not go so far, for in the case of a bequest of a legacy to grandchildren, to go over in the case of their dying under age, there have been several cases where the court has refused to allow maintenance out of the interest, but ordered it to accumulate, and go over, if the legacy itself did.

That in the cases of Langley v. Baldwin, and the Attorney General v. Sutton, the implication arose on account of the preceding limitations being to a limited number of sons, lest any other son should be disinherited.

Mr. Attorney General (Murray) e contra.

We agree that a mistake must have arisen in drawing this will: and the gentlemen on the other side suppose it to have been not in confining the limitation to the