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1821.

DoE dem.

against

BRAZIER,

situate and being in New Brentford, (save and except the house mentioned as then in the occupation of ANNANDALE R. Tunstall,) and expressly devised to the said Charles Brazier for the term of his life, and of which the testator died seized. The defendant, Charles Brazier, is the son-in-law of the testator, and the residuary legatee and devisee mentioned in his will, and was at the time the ejectment was brought, and still is, in possession of the premises sought thereby to be recovered. The lessors of the plaintiff (the Annandales,) were the surviving nephews of the testator, and legatees mentioned in the above will. Thomas Dewell, the other lessor, intermarried with the niece. The lessors of the plaintiff were not the heirs at law of the testator.

The question for the opinion of the Court was, whether the lessors of the plaintiff were entitled under the will to the premises belonging to the testator, situate in New Brentford, during the life of the defendant.

Treslove was to have argued on the part of the plaintiffs, but the Court called upon

Chitty, contrà. No interest passed to the nephews and niece of the testator by this will, until after the death of Brazier. The testator, after giving one house for life to the defendant, proceeds, "and from and after the decease of C. Brazier, I give and bequeath the same rents, &c. together with the rents, &c. of my other houses, to my nephews and niece." Now it is perfectly clear, that the latter could take no interest in the one house bequeathed expressly to the defendant, until after his death, and the words, together with, cannot be rejected from the will, and if they be allowed to stand,

then

1821.

Dog dem.

against BRAZIER.

then they refer not merely to the bequest, but to the time when the bequest is to take effect. The will operates therefore as a specific devise of specific property, to ANNANDALE take effect only upon the death of Brazier. That being so, and as the trustees named in the will took no estate until after the deccase of the survivor of the nephews and niece, the life interest in all the testator's houses in New Brentford, passed to the defendant under the residuary clause in the will.

BAYLEY J. (a) We have no right to make a will for a party, but it is our duty to lock to the whole of the will, and to extract from it what, on the fair construction of the will, appears to have been the intention of the testator. And of the intention of the testator, in this instance, I have no doubt. It seems to me, that his object was to give one house to Charles Brazier, and to give the reversion of that, and the immediate possession of all his other houses, to his nephews and niece for their respective lives. If the words," and from and after the decease of the said Charles Brazier," be confined in construction to what had before been given to Charles Brazier for life, then there is no difficulty in the construction of the will. The proper way of reading it is this, "I give to my son-in-law, Charles Brazier, that house, and after his decease, I give and bequeath the rents, issues, and profits of that house to my three nephews and niece, together with the rents, issues, and profits of my other houses," applying the words "together with" as a repetition of the words of gift and bequest; not meaning to postpone the interest in the other houses till after the decease of Brazier, but giving to him the immediate interest in

(a) Abbott C. J. was sitting at the Old Bailey.

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1821.

ANNANDALE

against BRAZIER.

that house. It might happen in the course of events, Dor dem. according to the construction contended for, that every one of these persons might be disappointed, because, if Charles Brazier survived them, they would take (according to that construction) no interest at all in any of the houses, and their children even would take no interest. until Brazier died; nor until that event happened, would the trustees be entitled to sell. Whereas they are directed to sell immediately after the death of the survivor of the nephews and niece. Such a construction, therefore, seems to be at variance with the provisions of this will. The case of Cooke v. Gerard (a) is an authority in point. In that case, the testator had two estates, one in possession, and another in reversion expectant on the death of A. B. He devised the former to his widow for one year, and then he devised both to the lessors of the plaintiff, to hold immediately after the expiration of the year from his decease, and the decease of A. B. Therefore, the lessor of the plaintiff was, according to the words, to hold from, and immediately after the expiration of one year after the death of the testator, and the decease of A. B. The question was, whether the whole was postponed until after A. B. died. The Court decided not, but that the words were to be taken distributively, and that "after the decease of A. B.," was only to be applied to that estate in which A. B. had an interest. And so in this case, these words, "after the deccase of Charles Brazier," may fairly be confined to that house,

the rents, issues, and profits of which had previously been given to Charles Brazier for his life; but as to

the residue, it is a present and immediate devise.

(a) 1 Saund. 181.

HOL

HOLROYD J. I think that we should defeat the manifest intention of the testator, if we were to decide this case in favour of the defendant. It seems to me, that at the very time when the testator was devising one house to C. Brazier, he had in his mind his other real property. For, immediately after giving the life estate in the one house to the defendant, he goes on and says, and from, and immediately after the decease of the said C. Brazier, I give the said rents, issues, and profits, together with the rents, issues, and profits of my other houses, to my nephews and niece. It is clear, that the testator meant Brazier to take a life estate in one house only, and yet that he meant in this part of the will to dispose of his property in the other houses. Now, that intention of the testator cannot be effected without giving an immediate interest in the latter to his nephews and niece. It is said that the words "together with" incorporate not only the gift, but the time when that gift was to take effect. I think, however, that it was the manifest intention of the testator in this case, that these words should apply only to the gift, and not to the time when that gift was to take effect. I think it quite clear, therefore, that the testator in this part of his will intended to give an immediate estate for the lives of his nephews and niece, and the life of the survivor, and therefore, that there should be judgment for the plaintiff.

BEST J. I am of the same opinion. It is evident that the testator did not intend, that the defendant, to whom he had expressly devised one house, should take an immediate interest in the other houses, and it is equally clear, that he did not intend these houses to

1821.

Doɛ dem. ANNANDALE against BRAZIER.

1821.

Dog dem.

against

BRAZIER.

go to his heirs at law, for he has, by the residuary clause, given away all his estates whatever. Then if he inANNANDALE tended, that these houses should not go to the defendant or his heirs at law, it is quite clear, that he must have intended, that they should immediately upon his death go to his nephews and niece. It has been said, that the words "together with" must necessarily refer to the time when the gift is to take effect. Looking, however, to the whole context of this will, I think that we shall best attain the intention of the testator by construing those words to refer to the property bequeathed, and not to the time when the bequest is to take effect. I think, therefore, that there must be judgment for the plaintiff.

Judgment for the plaintiff.

Friday,

October 26th.

CAZENOVE and Another, Assignees of POWER and WARWICK, Bankrupts, against PREVOST and Others.

4., a foreign ASSUMPSIT by the plaintiffs, as assignees of the

merchant, pur

chased in his

own name, but

estate and effects of J. Power and R. Warwick, of

on account and London, merchants, against the defendants, who were

with the money

of B., a British merchant, certain bank shares in the French funds. The latter drew bills upon A., which he accepted, on the security of those shares standing in his name; and these bills were assigned by B., for a valuable consideration, to C., a British subject. Before they became due, B. authorised A. by letter to sell the bank shares, in order to reimburse himself against the bills. Before that letter arrived, A. had stopped payment, and afterwards became bankrupt, and the bills were dishonoured; B., also, afterwards became bankrupt. C., by process in the foreign country, attached the bank shares still standing in the name of 4. for the debts due to him upon the bills; and the court there decreed that the bank shares should be sold, and that the proceeds should be applied, first, to pay a debt due from B. to A., and afterwards to retire the bills. Under this decree, C. received a certain sum of money on account of the bills: Held, that the assignees of A. could not recover back this money as money belouging to B.

mer

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