v. [ *630 ] not of limitation; and the plaintiffs, as the children of the tenant GREENWOOD for life, take the fee as tenants in common in remainder. This ROTHWELL. construction, which there is no rule of law to defeat, effectuates the plain intention of the testator who expressly devises the estate to Jonas, for and during his natural life. This shows the termination of his estate, and the following words: "from and after his decease" show the commencement of another estate. The defendants will contend that the devisee took an estate tail, and applying *the rule in Shelley's case (1), they will make the words, "for and during the natural life of the said Jonas Greenwood" of no avail; they must also expunge the words, "share and share alike as tenants in common, and the heirs of such issue." The latter words would be superfluous or repugnant if an estate tail had been previously given. They were intended to dispose of the whole estate, which it was the manifest intention of the testator to do; but the construction contended for on the other side would leave the fee undisposed of. In order to give a meaning to the words, "all and every the issue," the defendants must adopt the doctrine of cy pres, and contend that they must mean "all and every the issue successively." There is no case in which the word “issue' has been held to be a word of limitation, where, as in this case, there were also words of division and distribution-such as, "share and share alike, as tenants in common "-or superadded words of limitation-as "heirs of such issue "-or, where there was no limitation over. The devise over is to the "issue of the body" of J. G., not to the "heirs of the body," which primâ facie are words of limitation; nor to the "children," which is a word of purchase. "Issue of the body" is an intermediate expression which may be interpreted either way, so as to best to carry out the intention of the testator. Lees v. Mosley (2), and the cases there cited of Hockley v. Mawbey (3), Doe d. Cole v. Goldsmith (4), and Loddington v. Kime (5), are distinct authorities to show this flexible quality of the word "issue." Even if the words had been "heirs" (instead of issue) "of the body" still the devisee would have taken only an estate for life, according to Doe d. Long v. Laming (6); which has never been overruled, though its authority is certainly doubted in Jarman on Wills (7). But the present case (1) 1 Co. Rep. 88, 93. (2) 41 R. R. 348 (1 Y. & C. 589). (3) 1 R. R. 93 (1 Ves. Jr. 143; 3 Br. C. C. 82). (4) 17 R. R. 487 (7 Taunt. 209; 2 Marsh. 517). (5) 1 Salk. 224; 1 Ld. Ray. 203. (7) Page 287, Vol. 2. [ *631 ] v. over. GREENWOOD is much stronger. Jesson v. Wright (1), and Doe d. Bosnall v. ROTHWELL. Harvey (2), will be relied upon for the defendants, as showing that words of distribution are not sufficient to defeat the rule in Shelley's case; but in the former case the devise over was to the "heirs of the body" of the first devisee; and in both cases there were no words of superadded limitation, and there were limitations The presence or absence of a limitation over has always been considered material as assisting in the construction of a will. And it is reasonable that it should be so. If the testator limits over, it is strong to show that he intended to give only an estatetail. If he does not it is equally strong to show that he intended to give the whole estate. If the words at the end of the present devise had been "the heirs of the body of such issue," instead of simply "the heirs of such issue;" some difficulty might have arisen, as the plaintiffs then must have asked the Court to imply cross remainders. [632] Channell, Serjt. (with whom was W. Rogers) for the defendants: The first devisee took an estate-tail. It is impossible to give effect to all the words in the devise. Some are repugnant and others inoperative. The words "issue of the body" must be taken as nomen collectivum. Prima facie they import an estate tail; and, as observed by THURLOW, L. C. in Hockley v. Mawbey, they are perhaps the aptest which can be used to introduce such estate. The testator here does not devise to his relations by *blood. His object is to benefit Jonas Greenwood, and his issue, and that the estate should revert to his own right heirs, but not till the failure of such issue. The word "issue" is to be taken in an indefinite sense, as a word of limitation; for if Jonas Greenwood took only an estate for life, and had children, who had issue, and the children died during the life of the testator, the grandchildren would take nothing, as they could only take by way of remainder, and the estate would have lapsed; but according to the construction contended for on the part of the defendants, the grandchildren would take an estate-tail. (MAULE, J.: According to your view, the same construction would follow if Jonas Greenwood died, living the testator, when the whole estate would lapse.) (1) 21 R. R. 1 (2 Bligh, 1, overruling Doe d. Wright v. Jesson, 5 M. & S. 95). (2) 4 B. & C. 610, per nom. Bagnall v. Harvey, 7 Dowl. & Ry. 78. v. The argument is only intended to show that the object of the GREENWOOD testator was, to benefit the issue indefinitely, and not the children ROTHWELL. merely. The ground of the decision in Hockley v. Mawbey was, that there was a power of appointment to distribute the shares, showing that the objects of his bounty were not intended to take as tenants in tail, but in fee. Doe d. Cole v. Goldsmith turned upon a similar point. Doe d. Long v. Laming is inconsistent with the more recent authorities of Doe d. Bosnall v. Harvey, and Jesson v. Wright. But even assuming it not to be so, the peculiar language of the will in that case will prevent the application of the decision as a general principle. Goodright d. Lisle v. Pullyn (1), Wright v. Pearson (2), Denn d. Geering v. Shenton (3), Roe d. Dodson v. Grew (4), Doe d. Blandford v. Applin (5), Denn d. Webb v. Puckey (6), Frank v. Stovin (7), Mogg v. Mogg (8), Ward v. Bevil (9), *and more particularly Tate v. Clark (10), are authorities for the defendants. Loddington v. Kime is not reconcilable with King v. Burchell (11). Byles, Serjt., in reply: Tate v. Clark is hardly an authority upon this point. Doe d. Bosnall v. Harvey (which was decided after Jesson v. Wright), expressly recognises Doe d. Long v. Laming; where the words "heirs of the body," were held to be words of limitation, upon the ground that if they were construed to be words of purchase, many objects of the testator's bounty would be deprived thereof. The defendants, in this case, have failed to show that "issue" must of necessity be a word of limitation. They ask, in effect, that the whole estate shall be given to the eldest son by striking out the words of distribution. The following Certificate was afterwards sent: "This case has been argued before us and we are of opinion that Jonas Greenwood took an estate for life in the devised premises under the will of John Mitchell. 1) 2 Ld. Ray. 1437; 2 Stra. 729. (4) 2 Wils. 322; Wilmot, 272. "N. C. TINDAL. "T. ERSKINE. "C. CRESSWELL." (7) 3 East, 548. (S) 15 R. R. 185 (1 Mer. 654). [*633] 1843. May 11, [ 639 ] [640] BORRADAILE . HUNTER. (5 Man. & G. 639-669; S. C. 5 Scott, N. R. 418; 12 L. J. C. P. 225; 7 Jur. 443.) A policy of life insurance contained a proviso (inter alia) that in case "the assured should die by his own hands, or by the hands of justice, or in consequence of a duel," the policy should be void. The assured threw himself into the Thames and was drowned. Upon an issue whether the ' assured died by his own hands, the jury found that he "voluntarily threw himself into the water, knowing at the time that he should thereby destroy his life, and intending thereby to do so; but that at the time of committing the act he was not capable of judging between right and wrong: " Held (TINDAL, Ch. J. dissentiente), that the policy was avoided, as the proviso included all acts of voluntary self-destruction, and was not limited by the accompanying provisoes to acts of felonious suicide. COVENANT by the executor of the Rev. William Borradaile, upon a policy of insurance effected by the London Life Association (of which Society the defendant and George Dorrien, since deceased, were two of the trustees) upon the life of the deceased W. B. for the payment of 1,000l. within three months after proof of his death. Averment of regular payment of the premium and performance of all covenants and conditions on the part of the deceased; that he died on the 16th of February, 1838, of which notice was given to the Society. Breach, non-payment. Profert of letters testamentary. Plea, craving oyer of the policy, which was dated 30th of May, 1828, and witnessed that, whereas the Rev. *W. B., jun., vicar of Wandsworth, had agreed to become a member of the Society called, &c., according to a deed of settlement bearing date, &c.; and whereas the said Society had agreed to assure to W. B. the sum of 1,000l., to be paid to his executors, &c., after his decease, at the annual premium of 331. 15s.: it then stated the payment of the first premium by W. B., and his agreement to pay the annual premium in every succeeding year. The trustees then covenanted that if the assured should continue to pay the premium, and should well and truly perform and keep all covenants, conditions, &c. contained in the said deed of settlement, and all orders, rules, &c., made at any general Court of the Society, they, or the trustees for the time being, covenanted, within three calendar months after proof of the death of the assured, to pay to his executors, &c., the sum of 1,000l.:" provided, and it is hereby declared to be the true intent and meaning of this policy of assurance, and the same is accepted by the said assured upon these express conditions, that in case the assured shall die upon the seas (except in such passages HUNTER. as are allowed by the rules of the Society), or go beyond the limits BORRADAILE of Europe, or enter into or engage in any naval or military service whatsoever, unless licence be obtained from a court of directors of the said Society, or shall die by his own hands, or by the hands of justice, or in consequence of a duel, or if the age of the said assured does now exceed thirty-six years, or if the said assured be now afflicted with any disorder which tends to the shortening of life, or if a certain declaration bearing date the 28th day of May instant, made and signed by or on behalf of the assured, and forming the basis of the contract between the said assured and the Society contains any untrue averment, this policy shall be void." Signed by George Dorrien, and the defendant. The plea then continued thus: "that true it is that the said W. B. died as *in the said declaration mentioned; but that the said W. B., after the making of the said instrument or policy of assurance, to wit, on the 16th day of February, A.D. 1838, so died by his own hands, whereby the said instrument or policy of assurance became void.” Verification. Replication, that the said W. B. did not die by his own hands, modo et formá; upon which issue was joined. The cause was tried before Erskine, J. at the London sittings after Michaelmas Term, 1841; when it was proved on the part of the defendant, that on the night of the 16th February the deceased threw himself from Vauxhall Bridge and was drowned; and it was contended that it was not competent to the plaintiff to go into any question as to the insanity of the deceased, inasmuch as if his death was in fact occasioned by his own hand or act the policy was void, and that it was immaterial whether he was sane or insane. On the part of the plaintiff it was argued that the real question to be tried was, whether the deceased had committed suicide, such being the sense of the words "shall die by his own hands; " and that the question to be considered was, whether the assured was or was not in a sane state of mind at the time he committed the act; or, in other words, that it must have been the intentional act of a sane man having the control of his will, to bring it within the condition in the policy. The learned Judge expressed his opinion that if the deceased's mind was so far gone that he did not know the consequences of the act and the mind was not moving to the act, it was not within the proviso; but his Lordship said that in case this might not be the true construction of the proviso, the question had better be [ *641 ] |