tail or an estate for life, with remainder in tail to her children. Either, therefore, in this case, John Liversage took an estate tail or an estate for life, remainder in tail to his children. In either event, there has been no forfeiture, and the defendant is entitled to the judgment of the Court. ABBOTT C. J. I am of opinion, that a life estate only passed under the will to the daughters of the testator's nephew, John Liversage. It is very probable that the testator, like many other persons unacquainted with the law, may have thought that a real estate in fee simple would pass by the same words as would be sufficient to the absolute interest in a case of personal property; pass but in this he laboured under a mistake. In this will there are no words to be found, either connected with the persons intended to take, or with the thing devised, so as to shew the quantum of interest intended to be given. In the case of Hodges v. Middleton, the testator, by his will, bequeathed "all his real estate in the parish of Barking," which shewed the quantum of interest intended to pass under the will; but in this will there are no such words; nor are there any words applied to the persons, the objects of his bounty, to shew that they were to take an estate of inheritance, as would be the case if the words "heirs of the body" or "issue" had been used. The expressions in the will are "all and every the child and children of the said John Liversage, lawfully begotten or to be begotten, whether sons or daughters, they, if more than one, to take as tenants in common, in equal shares and proportions." I cannot say, that under these words, the testator meant to include grandchildren, or more remote descendants. Then there 1822. Doɛ dem. 1822. Doɛ dem. LIVERSAGE against VAUGHAN. there follow the words, "and for want of such issue, to my own right heirs;" but these words will not enlarge the estate previously given; for it appears, from the authority of Hay v. Lord Coventry, and the other cases cited, that the words "such issue," must refer to the previous words, "child or children." If, indeed, the word "such" had been omitted, it might have been contended, that, by implication, an estate tail passed under the will. I am, therefore, of opinion, that in this case, the plaintiff is entitled to judgment. HOLROYD J. (a) I am of opinion that by this will, J. Liversage took an estate for life, and that his children took only estates for life, as tenants in common. This is very distinguishable from those cases, where the words of the original limitation were sufficient of themselves to carry an estate tail, and where the only question was, whether they could be controuled by the subsequent words of the will. There it has been held, that the general intention could not be carried into effect, without giving to those words their ordinary signification; and for that reason, the Court have rejected the other words, which were inconsistent with it. But here, there are no such words to be found, unless the words "child and children" are to be considered as nomen collectivum. It may be admitted, that a devise to a man and his children may, in some cases, give an estate tail, if it can be collected that such was the intention of the testator. But it is clear, in this will, that the testator did not use the words "child or children" in that sense, for he speaks of them as sons and daughters, which shews that he only contemplated the immediate descendants of J. Liversage; (a) Bayley J. had left the court. and and he gives them an estate as tenants in common. Nor do the words "for want of such issue," carry the matter further; for they only refer to the words "child or children." I think, therefore, that neither expressly nor by implication, did an estate tail pass by this will. BEST J. I am clearly of opinion, that under this will, J. Liversage and his children took only estates for life. It is true, that in some cases, the word children may be taken as equivalent to the word issue; and it was so received in Seale v. Barter. But in that case, it seems to me that Lord Alvanley gives the key to the determination of the present case. There, the testator had bequeathed all his lands and estates to his son John and his children, lawfully to be begotten; and Lord Alvanley, in giving judgment, says, "Now, we are of opinion, upon all the authorities, that the words children lawfully to be begotten, in this case are not to be considered as words of purchase, but that the intention of the testator was to give his estate to his son, and the issue of his body generally." In this case, however, it is clear that the words "child or children" are not to be taken as words of limitation, but as words of purchase; for, by the will, they are to take, as tenants in common, in equal shares and proportions. The word children, as it seems to me, therefore, was intended by the testator to be confined to the immediate descendants of John Liversage. If so, the case of Hay v. Lord Coventry is in point, and shews that the words "such issue" must be confined to the previous words, "child or children,” and cannot carry the case further. I am therefore of opinion, that the plaintiff is entitled to our judgment. Judgment for the plaintiff. 1822. DoE dem. against VAUGHAN, 1822. Tuesday, January 29th. When a de once written his acceptance with the inten tion of accept ing a bill, afterwards changes Cox and Others against TROY. fendant, having ASSUMPSIT upon a bill of exchange for 938l., dated 20th May, 1820, drawn by Stephen and James Roch, upon the defendant and W. T. Robarts, since deceased, by the names and firm of Messrs. W. T. Robarts and Co. London, payable 61 days after sight to Michael Murphy, and indorsed by him to the plaintiffs, and alleged to have been accepted by the defendant and W. him, obliterates Tierney Roberts, payable at Messrs. Robarts, Curtis and his acceptance Co. The first count stated these facts, and a present his mind, and before it is communicated to the holder, or the bill de livered back to Held, that he is not bound as acceptor. ment for payment when due, and refusal to pay at Messrs. Robarts, Curtis, and Co. The second count was on a general acceptance; and the third was special, stating that the bill was delivered to the defendant and W. T. Robarts, to determine, within a reasonable time, whether or not they would accept the same; and that they promised to take due care of the same, and return the same without defacing or spoiling it, which they did not do, but returned the same bill in a defaced and injured state. The declaration also contained the usual money counts. Plea, general issue. The cause was tried at the sittings after Trinity term 1821, before Abbott C. J. when a verdict was found for the plaintiffs, subject to the following case. It was admitted on the trial, that the bill of exchange mentioned in the declaration was drawn by Messrs. T. and J. Roch on the defendant and W. T. Robarts, since deceased, as stated in the declaration, and that the same was duly indorsed to the plaintiffs by the payee. The plaintiffs in London received received the bill from Cork on the 24th May, 1820; The Chitty for the plaintiff. In this case the acceptance, when once made, could not be revoked by the defendant. It is so laid down in Marius, p. 83. although that is only a loose dictum. But in Molloy, book 2. c. 10. s. 28. it is said, that when a party has once subscribed, he cannot afterwards blot out his name And the Hamburgh ordinance lays it down in general terms, that an acceptance once made cannot be revoked. Trimmer v. Oddy, cited in Bentinck v. Dorrien (a), is an authority in point. (a) 6 East, 200. Chitty on Bills, 160, S. C. There 1822. Cox against TROY. |