1805. CARR against The Earl of ERROL and Others. *[66] I 67 1 eldest son, then under age, and the said Wm. Hay; but in 1778 she had issue a third son, James Hay, who died in 1797, at the age of 19 years. At the decease of the testator, Wm. Hay, the second son of Lady Errol *, was an infant five years old, and consequently the trustees of the term of 1000 years, or the Earl and Countess of Errol, with their concurrence, entered into possession of the testator's mansion-house, with the heir-looms therein, and into the re ceipt of the rents and profits of all other the real estates of which the testator was seised at the time of his death; and they, or one of them, continued in such possession and receipt until 1795, when Wm. Hay, having attained his age of 23 years, and the several sums directed to be raised under the trusts of the term of 1000 years having been satisfied, was let into possession of the mansion-house, with the heirlooms and furniture therein, and into receipt of the rents and profits of all other the testator's real estates. James, Earl of Errol, the husband of the testator's daughter, Lady Errol, died in 1778, and at his descease, George Lord Hay, his eldest son and heir at law, became Earl of Errol. In 1798, George, Earl of Errol, the testator's grandson, died without issue, leaving Wm. Hay, his brother and heir at law, who thereupon became, and now is, Earl of Errol. At the death of George, Earl of Errol, Isabella, Countess of Errol, the testator's daughter, not having any issue male, except William, now Earl of Errol, and his eldest son, James, Lord Hay, Lady Charlotte Hay, who had intermarried with William Holwell, clerk (who afterwards took the name and arms of Carr, by virtue of his Majesty's licence granted to him and his heirs) claimed to be entitled to the possession of the estates by virtue of the last-mentioned proviso, in the same manner as if Wm. Hay (now Earl of Errol) was dead without issue male; but Lady Charlotte and her brother, the present Earl, agreed that he should continue in the receipt of the rents and profits of the estates, and that the rents should be divided equally between them; and which was so done to the time of the death of Lady Charlotte Carr, which happened in Feb. 1800, when she left an only son, the present plaintiff, then above a year old. It being considered on the part of the infant, that by virtue of the proviso in the testator's will, he became entitled on the death of his mother to the rents and profits of the estates, as tenant in tail under. the the limitations of the will of the testator, a bill in Chancery was filed in Easter Term, 1801, in the name of the plaintiff by his next friend, against the parties, stating the matters aforesaid, and praying that the plaintiff might be declared, in the events that had happened, to be entitled to the heirlooms and the real estates of the testator devised by his will; and that Wm. Earl of Errol might be decreed to deliver up possession thereof, and for further relief. To this bill the defendants put in their answers, and admitted the facts gene rally stated in the bill, and particularly the will of the testator, and the death of George, Earl of Errol without issue, and that thereupon the defendant, the present Earl, succeeded to the title and estate of his brother; but the defendant, the Earl of Errol, insisted that the real estates of the testator were vested in the trustees to preserve contingent remainders for the benefit of himself during his life. A receiver was appointed to collect the ients and profits, and pay them into the bank without prejudice; and a case was directed to be made by the Lord Chancellor for the opinion of this court upon the question, Whether the plaintiff, Wm. Holwell Carr, was, under the will of the testator, Sir Wm. Carr, entitled at law to any, and what estate in possession in the premisses in question, subject to the trusts of the term of 1000 years created by the will of the testator? Dampier, for the plaintiff, contended, that the plaintiff, in the event which had happened of the title of Earl of Errol having devolved upon Wm. Hay, took an estate tail in possession, such devolution of the title being by the express terms of the proviso in the will, equivalent to the natural death of Wm. Hay without issue male. Whether the trustees took a vested or contingent remainder under the will; yet in this event it cannot take effect in possession, without violating the whole intention of the testator. What would have been the case if Wm. Hay had determined his estate by forfeiture, is another question. The general intent is plain, that no person who was Earl of Errol should ever have any beneficial interest in the Carr estate: yet to ex clude the plaintiff's claim it must be contended, that though Wm. Hay had only a life estate, subject to be defeated upon the devolution of the Earldom of Errol upon him, yet he shall have the same beneficial interest now he is Earl of Errol VOL. VI. E 1805. CARR against The Earl of ERROL and Others. [ 69 ] Errol which he had before. The proviso says, that if Wm. Hay, or any other taker of the estate under the several limitations in the will, should thereafter become Earl of Errol, the use and estate limited to every such person shall cease, and be utterly void to all intents and purposes, as if such person were dead without issue, &c. Now if Wm. Hay, the present Earl of Errol, were dead without issue, the trustees to support the contingent remainders would not be the next in remainder, but the plaintiff would certainly take; then Wm. Hay cannot be dead to one intent, as he must be taken to be under the proviso, and alive to another intent, in order to take under the prior limitation to him, naturally dead as to the cessor of his estate, but not naturally dead, so as to take the rents and profits. The case of Doe d. Heneage v. Heneage (a), will be relied on by the defendants; but it differs materially from this. There, one devised to his son George for life, remainder to trustees to preserve contingent remainders, remainder to the first and other sons of George in tail male; remainder over: with a proviso, that if his son George, or any son or sons of his, should succeed to his uncle's estate, the limitation to him, or any son or sons of his so come into possession, &c. should cease, and the next in remainder should take as if his son George, or any such son or sons of his were dead: and upon George's succession to his uncle's estate before he had a son, it was holden that the limitation to the trustees took effect so as to support the contingent remainders during George's life. Now there the testator's intention would have been wholly defeated, and both estates vested in the eldest son of George to the exclusion of his second son, if the limitation to the trustees had not taken effect; whereas here it appears that the testator's intent would be defeated by such a construction. The principles and reasoning of Lord Kenyon, in giving judgment in that case, would also apply to govern this; but the circumstance of the Lord Chancellor's sending this case for the opinion of the Court, shews his own doubts upon that doctrine, and his desire to have it reviewed. The words too of the proviso are stronger in this case than in the former one. The devolution of the (a) 4 Term. Rep. 13. title is not only annexed to the cessor of the estate in possession, but to the vesting of the succeeding one. And in Doe v. Heneage the proviso was, that in the event contemplated the next in remainder, "according to the uses of this my will," shall succeed, &c. which words are not in the present case. But it may be said that the estate to the trustees is not made subject to the proviso. It is not in words indeed, but it must be so in effect. The whole will must be taken together. Their estate would have taken effect on the determination of Wm. Hay's life estate by forfeiture, or if he did not take the name of Curr, or if he did any act incon sistent with the nature of a life estate; but the estate could not vest in them upon the event of the devolution of the title of Errol on him, because that was to operate as if he were naturally dead, and their estate was only limited for his life; therefore it must vest in the next in remainder, as in case of his natural death without issue male. It is an exception arising necessarily from the whole context of the will, all of which is governed by the proviso. If then in this event Wm. Hay's life estate be gone, it would be very absurd and inconsistent to say that the permission to the trustees to let him take the rents and profits during his life applied to this case. [Le Blanc, J. It must be argued on the other side, that Wm. Hay loses the estate, because he is in the same situation as if he were naturally dead, and yet that the trustees are to take the estate as if he were alive.] The very trust annexed to the estate of the trustees, that they should permit him to take the rents and profits during his life, shews that the testator could not have intended their estate to vest in possession in the event marked in the proviso for the estate to go over to the next in remainder; for it could never be meant that Wm. Hay should lose the estate by the testator's own condition annexed to it, and yet receive the rents and profits. Besides, the estate of the trustees to preserve contingent remainders does not attach on the estates tail, but only on those for life; and therefore if the title of Errol were to devolve on the plaintiff, it must be admitted that his estate would be divested immediately: yet it cannot be supposed that the testator meant that the tenants for life should be in a better situation than the tenants in tail, in respect of the rents and profits of the estate. It may be said 1805. CARR against that there are contingent remainders to the third, fourth, and other sons of the testator's daughter, the Dowager Countess of Errol, and that the estate given to the trustees was necessary The Earl of for the purpose of supporting those remainders; but the tesERROL and Others. tator did not regard who was next in remainder at the time of the devolution of the title of Errol on any of the persons to whom his estate was limited, but only that the estate should in that event go over immediately to the next in remainder, whoever he might be. Holroyd, contra. The question here is not What estate the Earl of Errol has? but Whether the plaintiff be entitled to recover the possession? for if he be not, it is immaterial what is to become of the rents and profits in the bands of the trustees during the life of the Earl, that being a question for the Court of Chancery hereafter to determine. Then, as to the legal estate, the case of Doe v. Heneage (a) is directly in point for the claim of the trustees. All the limitations to Wm. Hay, and the other persons of his family, are made subject to the proviso, but not the limitations to the trustees to preserve contingent remainders during the life of each tenant for life: which pointed omission shews plainly the intention of the testator that the estate of the trustees should in no event be subject to the condition therein contained but unless the trustees are to take during the life of Wm. Hay, on whom the title of Errol has devolved, all the [72] contingent remainders will be defeated, which it clearly was the object of the testator to uphold: for it is not until de fault of the issue male of his daughter generally, that the estate is given over to Lady Charlotte Hay, his grand. daughter: but by the construction contended for, any younger son of his daughter born after the title devolved on Wm. Hay, would be excluded from taking. [Lawrence, J. Little or no stress can be laid on the omission of subjecting to the proviso the limitations to the trustees; for it would be absurd to suppose that the testator looked to the contingency of either of them or their heirs becoming Earls of Errol. Lord Ellenborough, C. J. It being a peerage in fee, there was only a bare possibility that the any of the heirs of the trustees. title might devolve on (a) 4 Term Rep. 13. however, |