The English reports
Renton, Alexander Wood, Sir, 1861-1933 | Great Britain. Parliament. House of Lords
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A suit having been instituted in 1805 for a partition of the Daly Estate, a decree was accordingly made therein, and by an indenture dated the 30th of September, 1809, one third part thereof, decreed and allotted to Lady Elizabeth (then Duffield) in severalty, was conveyed to a trustee, to hold upon the same trusts and purposes, on which her undivided third part of the same estate theretofore stood limited. A bill was filed in 1812 by T. Lancray and others, representatives of the surviving trustee of the term of [197] 1000 years, created by the deed of 1779, against Lady Elizabeth (then Duffield) and her son (the respondent) and his children and others, for sale of the lands comprised in that term, for payment of the scheduled debts thereby secured. The plaintiffs made claim to the whole of the lands allotted to Lady Elizabeth in severalty, as comprised in the said term. Lady Elizabeth, by her answer, insisted that one-fourth only of the one-third of the Daly Estate was affected by the trusts of the deed of 1779, but the Master, in pursuance of an inquiry directed before him, reported that the said trust term extended over the whole of the one- third. That report, unexcepted to, was confirmed, and a decree was pronounced in July 1820, for the sale of the whole, or a competent part, of the one-third of the Daly Estate which had been allotted to Lady Elizabeth, and parts thereof were accordingly sold for the residue of the said term, for the purposes of the trusts thereof. Doubts having arisen whether the town lands of Clooncony, Cloonfagny, and Dereen, which were among the lands sold, were included in the deed of 1779 and in the term of 1000 years, by a deed dated January 1825, Lady Elizabeth and her then husband Joseph Russell, conveyed the whole of Lady Elizabeth's one-third part of the Daly Estate allotted to her in the partition, and also her one undivided third part of the Birmingham Estate, to Henry Maxwell Miller, as tenant to the pteciiJe, in order that recoveries might be suffered, and it was thereby declared that such re- coveries should enure, as to such of the said several divided and undivided parts, shares, purparties, lands, hereditaments and premises as were com-[198]-prised in the deed of 1779, to the uses and for the estates therein declared and in confirmation thereof and of the term of 1000 years in particular; and after reciting that the said three town lands, of which Lady Elizabeth was, at the time of the execution of the indenture of 1779, seised or entitled unto in tail, in remainder, or otherwise, were not comprised therein ; and reciting the proceedings in the said suit of Lan- cray V. Duffield and others, and that Lady Elizabeth had agreed to make the said three town lands subject to the said term; it was (by the deed of 1825) further declared that the said recoveries should enure, as to the said town lands, to the use of the trustees of the said term, for the trusts and purposes of raising payment of the said scheduled debts pursuant to the decree in tlie said suit, and to give effect thereto and to the proceedings thereunder and to any sale that had taken place ; and from the determination of the said term, and subject thereto, to such further uses, as to the said town lands, as Lady Elizabeth should by deed or will appoint ; and as to all the lands and hereditaments comprised in the deed of 1779, to such fjirther uses as had not been thereby declared concerning the same, as the said Lady Elizabeth should by deed or will appoint. Two recoveries were, in pursuance of this deed, duly suffered by Lady Elizabeth and Joseph Russell. The monies produced by the lands sold were a^jplied in dis- charging the said scheduled debts, and the term of 1000 years was determined as to the other lands comprised in the deed of 1779. A partition was made of the Birmingham Estate in 183i, and one third part thereof, the share of Lady Elizabeth Russell, was conveved to the uses of the deed of 1779. [199] Lady Elizabeth, liaving survived her husband, J. Russell, died in 1838, having, by her will, dated August 1834, devised all her real estates in fee to her grand- son, Francis Sewell Cole (the appellant), the only child of Elizabeth Blake Sewell. In 1840, F. S. Cole filed his bill in Chancery in Ireland, claiming under the said devise three fourths of the whole of Lady Elizabeth Russell's one third share of the Daly Estate, against the respondents, namely, T. B. D. H. Sewell and his three daughters, and the cliildren of a deceased daughter (see pedigree, supra, p. 196), 1068 COLE V. SEWELL [1848] II H.L.C. 200 and other persons who were interested under the tmsts of the terms of 1500 years and ."5000 years created by the deed of 1779. The bill stated, among other things, the deeds of 1752 and 1779, and that the hitter and the fines levied in pursuance thereof did not affect any other interests in the said estates than such as were then vested in Lady Elizabeth Sewell, namely, one fourth of her mother's one third share; that in consequence of the deaths of persons, as before mentioned. Lady Elizabeth was, at the time of the execution of the deed of partition, in 1809, entitled to one-third of the land comprised in the deed of 1752, and the estate and interest which she had in tlie entirety of the one-third allotted to her by the partition and previous to the sale under "the decree in Lancray v. Duffidd and others, was three fourth parts thereof in fee simple, the remaining fourth part being subject to the term of 1000 years, and the other trusts of the deed of 1779 ; chat the part sold under the said decree was considerably more than one fourth of the share of the Daly estate allotted to Lady Elizabeth, and, consequently, part of her undivided three-[200]-fourtlis of a third share was sold in exoneration of a com- petent part of the Birmingham estate from the trusts of the said term, the said three-fouiths not being at all subject thereto. The bill, after submitting that Lady Elizabeth, at the time and in consequence of the said sale, became entitled to the re- sidue of the one-third of the Daly estate allotted to her in the partition, and the same passed to the plaintiff under her will, prayed that the will might be established, and that directions might be given to ascertain what portion (if any) beyond the one fourth of the one third of tlie Daly estate, was sold under the said decree, and that the plaintiff might be declared entitled, as devisee of Lady Elizabeth, to an estate in fee simple, in severalty, in an equivalent portion of certain lands, part of the Daly estate, comprised in the decree for sale, but remaining unsold, and that he might be declared entitled in fee simple to and be put in possession of three fourth parts of the whole one third of the Daly estate. The respondents, by their answers, submitted that the whole of the one third of the Daly estate, allotted in severalty to Lady Elizabeth, was comjirised in the settle- ment of 1779, and that she had no disposing power at her death over any of the lands that remained unsold, and they referred to the proceedings and decrees in the par- tition suit and in tlie cause of Lancray v. Duffidd and others, and to the deed of January 1825, and the recoveries then settled as conclusive against the appellant's case. Upon the hearing of the cause in June 1842, an order was made by Lord Chan- cellor Sugden, for sending a case for the opinion of the Judges of the Court of Common Pleas, upon three questions therein stated. [201] Tliese learned Judges, after hearing the case argued, certified their opinions (see 5 Ir. Law Rep. 190) : First, that at the time of the execution of the settlement of the 2.3d of February, 1779, Lady Elizabeth Sewell was entitled, under and by virtue of the limitations of the settlement of the 5th of February, 1752, to a vested remainder in tail in one fourth of her mother Lady Louth's one third of the Daly estate, expectant upon the decease of her mother without issue male, and of her aunts, without issue, and to a con- tingent remainder in tail in one fourth of each of the respective one thirds of her aunts Lady Kerry and Lady Kingsland of the said Daly estate, expectant upon their decease respectively without issue, and the decease of Lady Louth without issue male. Secofully, having regard to tlie settlements of the 30th of December 1749, and the 5th of Februaiy, 1752, they were of opinion that all the estates and interests, to which the said Lady Elizabeth was so entitled under the limitations of the settle- ment of 1752, passed under and were bound by the settlement of 23d February, 1779, and the fines levied in pui-suance thereof. Thirdly, that the whole of the one third of the Daly Estate, which was allotted in severalty to Lady Elizabeth by partition (save only the three omitted town lands) j.va8 limited and made subject to the uses of the settlement of the 23d of February, 1779, by the deed of the 1st of January, 1825, and the recoveries suffered in pursuance thereof. The cause was again heard before the Lord Chancellor, on this certificate and for further directions, in April 18-13, when his Lordship, adopting the opinions of the Judges, decreed that the bill be dismissed (4 Dru. and War. 1). 1069 II H.L.C., 202 COLE V, SEWELL [1848] [202] The ajDpeal was brought against, that decree. Mr. Turner and Mr. Malins for the appellant: The appellant claims, as general devisee of Lady Elizabeth Sewell, to be entitled in fee simple to three fourths of a third of the Daly estate; another one fourth of one-third, in which she took, under the valid limitations of the settlement of 1752, a vested estate tail in- remainder, expectant on the determination of prior estates, passed and was bound by the deed of 1779, and the fines that were then levied. There is no dispute about that part; but, as to the other parts or shares of Lady Elizabeth in the Daly estate, the appellant has to contend that she took them by descent as one of the co-heiresses of Peter Daly, and of his three daughters, and not by virtue of the limitations of the settlement of 1752. The first question is, as to the validity of those limitations. It is admitted that they are valid down to^ the limitation over, " and in case one or two of the said daugh- ters of Peter Daly," etc. {vide sujyra, pp. 189 and 190), " and in case" all of them died without issue, which is void, as tending to^ a perpetuity; because the preceding valid limitations to the first and other sons of the daughters and the heirs male of their respective bodies, might be exhausted, without ex- hausting their issue ; as, for instance, the first and other sons might have daughters, who or whose descendants could not take under the preceding limitation, yet while they or their descendants lived, the limitation over, on general failure of issue, could not take effect, and therefore it was void for remoteness. It is no answer to say that, in the [203] events which happened, there was no infringement on the rule agai'nst remoteness ; the limitation must be valid in its creation, and not because the event has accidentally happened (Tollemache v. Coventry, 2 CI. and Fin. 626) ; as Lord Lyndhurst said in the late case of Lord Dungannon v. Smith (12 CI. and Fin. 623), " unless it is absolutely certain that the event must happen within the period prescribed, it is quite clear tliat the rule of remoteness applies." It will be argued here, as it was in the Courts of Chancery and Conunon Pleas in Ireland, that this limitation over was not a springing or secondary use, as the appellant contends, but a contingent remainder, and therefore there was no violation of the rule against perpetuities, because such remainders may be barred by the tenants of the preceding particular estates. The only authority in suiajDort of that argument is the case of Jack v. Fetherstone (2 Huds. and B. 320), which certainly resembles this in some respects ; but which appears, from the report of Chief Justice Bush's judgment, to have been determined on the particular expressions found in the instrument. The Court of Common Pleas would not permit that decision to be questioned on the argument in this case, considering themselves bound by it as the decision of a Superior Court (the Exchequer Chamber in Ireland) ; but no such effect can be attributed to it here; in fact it is under appeal in the present case. Sir Edward Sugden, in his judgment, expressed much surprise to hear the objection of remoteness pressed on him, and observed that before the rule against perpetuities was established, " while contingent remainders were the only species of executory estate known, and [204] springing and shifting limitations were not invented, the law did speak of remoteness and mere possibilities as an objection to a re- mainder ; but since the establishment of the rule as to perpetuities, no question ever arises with reference to remoteness ; for if a limitation is to take effect as a spring- ing, shifting, or secondary use, not depending on an estate tail, and it is so limited that it may go beyond a life or lives in being, and twenty-one years and a few months, equal to gestation, then it is absolutely void " (4 Dru. and War. p. 28). That is the position for which the appellant contends in this case. But Sir E. Sugden holds this limitation not to be a springing, shifting, or s^condaiy use, but " one of the most regular technical contingent remainders that can be conceived," and that it falls under Mr. Fearne's second class of. contingent remainders (p. 6 (8th ed.) ). The process of reasoning by which he arrives at this conclusion is not very clear or satisfactory. The validity or invalidity of a contingent remainder de- pends on the event on which it is limited ; if the event be too remote, the limitation, though taken as a contingent remainder, is void. Mr. Fearne in another part of his book says (p. 502), "that any limitation in future, or by way of remainder, of lands of inheritance, which in its nature tends to a perpetuity, even altliough there be a preceding vested freehold so as to take it out of the description of an executory devise, is by our Courts considered as void in its creation ; as in the case of a limita- 1070 COLE V. SEWELL [1848] II H.L.C., 205 tion of lands in succession, first to a person in esse, and after his decease to his u'l- born children, and afterwards the children of such unborn children, this last re- mainder is absolutely void." [205] Here are limitations first to the daughters for life, then to their sons in tail male — under which no daughter of a son could take — next, to the daughters of the daughters in tail general, and then, on failure of issue generally of any or all of the daughters, comes this limitation, which might be in- definitely postponed, because it could not take effect while any daughter of a son or any issue of such daughter existed. All the preceding limitations might fail, without general failure of i^^sue. What can remoteness or perpetuity be if that limitation be not one? Such limitation might be got over in wills, but not in deedr".. One of the circumstances stated by Fearne, on account of which a limitation intended as a contingent remainder might fail, is " the remote possibility of the contingent event " (Cont. Rem. pp. 2-18, 250). " It is requisite that the possibility on which a re- mainder is to depend should be a common possibility, and potentia projnnqua at death, or death without issue, or coverture, or the like. The position laid down by the Lord Chancellor of Ireland, that a contingent remainder can never be affected with the vice of remoteness (4 Di-u. and War. 28), is not sustainable without qualification; that matter has never received direct judicial adjudication; it is not within the rule of remoteness when it is preceded by a vested estate tail, because that may be barred, and thereby the contingent remainder is destroyed; Gulliver v. Aslihy (4 IBurr. 1929). The rules of law, that no limitation is to be construed to be a shifting or springing use, if it can take effect as a re- mainder Carwardine v. Carwardine (1 Eden, 27) ; and that a remainder must vest, if at all, during the continuance of the preceding freehold estate, or at the moment of its determination, are not denied ; but attempts have been frequently made to limit remainders after several preceding freehold estates, including limitations to persons unborn, so that, as to some of these, the remainders must be too remote ; Hopkins v. Hopkins (Cas. temp. Talbot, 44 ; 1 Atk. 580) ; Seaward v. Willcock (5 East, 198). Several examples of the sort are given by Mr. Fearne (Cont. Rem. 251 ; Ex. Dev. 502), Mr. Preston (2 Abs. 114, 147), Mr. Jarman (On Wills, pp. 226, etc.), and other text writers (Lewis on Perp. 408). The ground on which the Lord Chan- cellor of Ireland held the limitation in this case to be a good contingent remainder was, tliat it was supported by an estate tail. But contingent remainders may be created without [207] estates tail to support them. Cases may be put, without end, to shew that tlie correct rule for judging of the validity of limitations is by looking to the terms of them. When a contingent remainder is created by deed, it is necessary that some time be pointed out by the terms of it when it would take effect, in order to prevent a perpetuity. The instrument creating the contingent remainder should point out the event on which the contingency would depend. The limitation in this case, depending on the general failure of issue of any of tlie daughters of Peter Daly, transgresses the rule against perpetuity as mucli as any of the common examples given to illustrate void limitations : As, if you give an estate for life or in tail to A., and if B. die without issue, then over, which is a void limita- tion ; but if to the words " without issue," be added, " in the lifetime of A.," or other words restrictive of issue, so that the gift over may take effect during the continuance of the estate to A., then it is valid. Even in wills, limitations over, after failure of issue, must be read in the restrictive sense, as by prefixing the word " such " to " issue," to denote the issue before mentioned in the will ; Morse v. Lord Ornwnde (5 Maddock, 99 ; and 1 Russ. 382), EUicomhe v. Gompertz (3 Myl. and Cr. 127). But 1071 II H.L.C., 208 COLE V. SE WELL [1848] there is no case in which such a construction has been put on a similar limitation in a deed, in which not a word can be added or altered. In Bristow v. Boothhy (2 Sim. and Stu. 465), it was held, that a power created by deed, to take effect after a general failure of issue, the previous limitations not exhausting the whole issue, — just like the present case, — was void for remoteness ; and so was a limitation of rents of real estate, after failure of issue of a [208] stranger to the preceding limitations, and behind them; Uartopp v. Lord Carhery (1 Sand. Uses, 197); and so is any estate or charge, limited after an indefinite failure of issue, not inheritable under the pre- ceding limitations in the deed ; Lady Lanesborough v. Fox (Cases temp. Talbot, 262 ; and Fearne's Ex. Dev. 447 (8th ediit.)), Jones v. Morgan (Feame's Ex. Dev. p. 451 ; and Appendix, No. iii. ; also, 7 Bro. P. C. 130), Lytton v. Lytton (4 Bro. C. C. 441). The mistake in the judgment of Lord Chancellor Sugden arose from his attending more to the events that happened than to the terms creating the limitations. An estate is limited, after the life estates of the daughters of Peter Daly, to their first and other sons in tail male, no estate being given to the sons' female issue; but it must have been assumed at the date of the settlement that there would be female issue of the sons, yet, while such issue, or their descendants, male or female, existed, the event, — the failure of issue of Peter Daly's daughters, — on which the limitation over was to take effect, could not possibly happen. If, for those reasons, the limitation over be void for remoteness, the appellant's right to one-fourth of the Daly estate is perfectly clear, having arisen in this way : — The fee simple of the whole estate, subject to the valid limitations, was reserved to the settlor, on whose death it descended to his three daughters, as co-parceners. On the death of Lady Kingsland, in 1784, without issue, the two survivors took her third share, for their lives, as tenants in common, by virtue of the valid limitations, and they then had the descended reversion in fee in the entirety. The Countess of Louth, one of [209] the survivors, had four daughters, each of whom was entitled, under the settlement, to a vested estate tail in remainder, expectant on their motlier's death, in a fourtli part of her original third share; but not in the moiety of the otlier one-third, which accrued to the motlier in 1784, and vested in her in fee, in case the limitation over, and the cross-remainders under it, were void. On the death, in 1788, of Lady Louth's eldest daughter without issue, her remainder in onei-fourth of the one-third, equal to one-twelfth of the whole Daly estate, vested in Lady Louth, in fee ; who therefore, besides having a life estate in a moiety, or six- twelfths, of the whole estate under the settlement of 1752, had also the fee of three- twelfths, which, upon her death in 1793, without disposing of the same, descended to her three surviving daughters, as co-heiresses of her and of Peter Daly, each of them taking onentwelfth in fee. In 1799, upon the death of the countess of Keriy, intestate and without issue, the moiety, or six-twelfths, held by her for life, descended to the three co-heiresses, share and share alike, so that Lady Elizabeth Sewell, one of tliem, then took three-twelfths altogether, or one-fourth of the Daly estate, in fee simple, which she afterwards devised to the appellant ; the other one-twelfth, in which she had a vested remainder in the year 1779, passed by the settlement of that date. But supposing, without admitting, the limitation, " in case one or two of the daughters of Peter Daly," etc., died " without issue," to be a good contingent re- mainder, and also to carry cross-remainders in Lady Kingsland's share of the estate among Lady Louth's daughters, still the appellant submits that they could not, under that limitation to the issue of " survivors or survivor," take remainders in the share of Lady [210] Kerry, who was herself the last survivor, there being no gift of the share of a surviving daughter, dying without issue, to the issue of a pre-deceased daughter. Cross remainders are not to be raised in a deed by implication ; Doe v. Dorvell (5 T. Rep. 518), Edwards v. Alliston (4 Russ. 78). But it may be argued here, as it was argued and decided in the Court below (4 Dru. and War. 22, 23), on the authority of Doe v. Waineivright (5 T. Rep. 427), that " survivors and survivor " must be read " others and other." In that case, which is distinguishable from this, the sequel and context of the will and clear indication of the testator's intention required that meaning to be put on the words ; they are here manifestly used in their primary and ijatural sense, the same sense which they naturally bear in the prior limitations to the male issue of the daughters, and which must govern the construction of them in the subsequent limitation. The other is a forced construction, and repugnant to the current of authorities; Milson v. Audry 1072 COLE V. SKWELL [l848j II H.L.C., 211 (5 Ves. 465), Davidson v. Dallas (1-4 Ves. 57)5), Croivder v. Stone (3 Russ. 223), Croniek V. Lumh (3 You. and C. 565) Leemi/ng v. Sherratt (2 Hare, 14). Tlie dictum in Barlow v. Salter (17 Ves. 482), holding " survivors " to be " others," does not aflfect the authority of those cases. Tiie whole therefore of Lady Keriy's original third share, and also the one-twelfth, which accrued on the death of Lady Matilda Birmingham, in 1788, dropped into the revei-sion, and all the parts tliat Lady Elizabeth Sewell took, as co-heiress of her mother and Lady Kerry, were well devised to the appellant. [211] The next question, in case tlie limitation over was not void, is as to the effect of the deed of 1779, and the fines that were then levied. That deed, and the fines, could not affect any contingent estate of Lady Elizabeth Sewell. The recitals in the deed expressly referred to the remainder and reversion then vested in her. Her only vested estate at the time being the one-fourth of lier mother's share, that was all that was bound by tlie deed The fines operated on her vested remainder, but not on her con- tingent interests in the shares of her aunts. Those interests, although assignable in equity, Wrig/it v. Wright (1 Yes. sen. 409); and devisable, Roe dem. Perry v. Jones (1 H. Bl. 30), are incapable of alienation in law, Weale v. Lower (PoUexf. 54). Mr. Fearne's statement, " that a contingent remainder may, before it vests, be passed by fine, by way of estoppel, so as to bind the interest which shall afterwards accrue by the contingency '' (Cont. Rem. 365), must be taken in a restricted sense, as in the examples of leases put in Coke's Commentary (Co. Litt. 45 a, 47 b). The Court of Common Pleas in Ireland (5 Ir. L. Rep. 190), and Sir E. Sugden (4 Dru. and War. 19), felt coerced on this point by the case of Doe v. Oliver (10 Barn, and Cr. 181). That case was very different from the present case, for in that the party levying the tine had no other interest but the contingent remainder. Where an interest actually passes by fine, estoppel does not ajjply ; Bensley v. Burdon (2 Sim. and Stu. 526), Right V. Bucknell (2 Barn, and Ad. 278), Helps v. Hereford (2 Barn, and Aid. 242), Doe V. Musgrave (1 Mann, and Gr. 625). And so where, as here, there was a [212] vested estate tail for the fine to operate upon, tiie contingent remainders could not pass nor be affected by estoppel — [The Lord Chancellor. — Notwithstanding that the parties intended to bind all their interests?] It does not appear that these parties did intend to pass contingent interests. In the recitals in the deed, Lady Elizabeth Sewell's remainder is described, more than once (supra, p. 192), as " vested in her; " first, in the recital of the relinquished in- denture of 1776, it was witnessed that, " in order to bar the estate in remainder or reversion expectant, and to take eft'ect as aforesaid, then vested in her " (supra, p. 192). And in the subsequent recital, that description of her estate is twice used, and it is preserved in the o^jerative part by the words of reference " as aforesaid," which, following " remainder or reversion expectant and to take effect," must be taken to refer to the remainder " then vested in her." The word ' vested " was used in contra-distinction to " contingent ; " Russell v. Bucha7ian (7 Sim. 628 ; 2 Cro. and M. 561). The latter word alone would describe Lady Elizabeth's expectant interests in the shares held by her aunts. It is therefore submitted, that one-fourth only of one^ third, that is, one-twelftli of the entirety, of tlie Daly estat.e, was made subject to the trusts of the deed of 1779. The next and last question is. what was the effect of the deed of 1825 upon the whole of Lady Elizabeth Sewell's one-third share, then actually vested in her in severalty, in possession. The appellant submits that it did not extend to, or bring within the uses of, the deed of 1779 any estate or interest or possibility that was not comprised in that deed, except the three denominations [213] of land, which were omitted from the enumeration of the hereditaments therein mentioned. The express object of the deed was to correct that omission. They were sold under the decree in Lancray v. Duffield, and in order to give the purchaser a clear title, Lady Elizabeth and her then husband conveyed, first, her whole third share, not only of tlie Daly, but also of the Birmingham estate, to a tenant to the praecipe, for the purpose of suffering recoveries to enure " as to such only of the undivided parts or shares as were comprised in tlie deed of 1779, to the uses thereof, and particularly of the trusts of the term of 1000 years." How can it be contended that, so far the deed of 1825 affected, in the least degree, any other lands or interests of Lady Elizabeth than were 1073 IIH.L.C., 214 COLE t'. SEWELL [1848] previously subject to the trusts of the term? The deed then recites that three town lands, of which Lady Elizabeth was seised in remainder in tail in 1779, were not com- prised in the deed of that date, and that she agreed to make them subject to the trusts of the said tenn ; and it was declared accordingly that tlie recoveries should, as to those town lands, also enure to the use of the trustees of the term ; and subject thereto to such further uses, as to these lands and all the lands comprised in tlie deed of 1779, as Lady Elizabeth should by deed or will declare. It is quite clear, upoxi the face of the deed, that it was not the intention of the parties' to do more than subject the three omitted denominations of lands to the trusts of the term, and it cannot be construed to operate upon any property that was not before subject to the uses of the deed of 1779. Sir E. Sugden himself expressed, in his judgment (4 Dru. Mr. Tinney and Mr. Shapter for the respondents. — The claim of the respondents to the whole of Lady Elizabeth Sewell's one-third of the Daly estate has been affirmed by the Court of Common Pleas and the Lord Chancellor of Ireland, both holding that the limitation over in the deed of 1752, was a good contingent remainder ; that cross- remainders had been ci*eated, not by implication, but by legal construction, and that all the interests Lady Elizabeth had in 1779, contingent as well as vested, were bound by the deed of that date. Supposing that the one-thirty-sixth part, which ultimately devolved on her as her share of her sister Matilda's vested remainder in one-fourth of the one-third, in which her mother had a life estate, [215] was not comprised in the deed of 1779, as Matilda was then living; yet it is submitted, that upon the true construction of the deed of 1825, this part also was made subject to the trusts of tlie deed of 1779. That was certainly Lord Chancellor Sugden's opinion, although doubt- fully expressed in his judgment (4 Dru. and War. 36-7). The first question raised on the appeal is, whether, after the limitations to the sons and daughters of Peter Daly's daughters, — which did not exhaust their whole issue, — ^the limitation over, upon the death of any of them without issue, was valid as a contingent remainder. It falls within the second class of contingent remainders as defined by Fearne (Cont. Rem. p. 6), " where some uncertain event, unconnected with and collateral to the preceding estate is, by the nature of the limitation, to pre- cede the remainder." That definition he illustrates by examples, first, from. Coke (Co. Litt. 378), " as if a lease be made to A. for life, remainder to B. for life, and if B. die before A., remainder to C. for life ; here the event of B.'s dying before A. does not in the least affect the detennination of the particular estate ; nevertheless it must precede and give effect to C.'s remainder ; but such event is dubious ; it may or may not happen, and the remainder depending on it is therefore contingent." Then follows another example taken from Leonard (4 Leon. 237), and equally aiDplicable here. The contingency, on which the limitation over in this case depends, is the death of the daughters without issue, an event which may or may not happen. That limita- tion does not derogate from, or in the least d6-[216]-gree aft'ect, the prior estates limited to the particular class of isue of the daughters ; they continue until their natural determination ; the remainder over is to take effect on an event collateral to their determination, viz., deatli without issue; but the nature of the event is im- material. The ])oint was decided in the case of Jack v. Fetherstone (2 Huds. and Br. 320. Judgment affirmed in this House, 3 CI. and Fin. 67), in the Irish Courts of King's Bench and Exchequer Chamber, where it was held, that a limitation depending on 1074 COLE V. SEWELL [l848] II H.L.C., 217 a general failure of issue, was a good contingent remainder, and that case is quite in point here. If a limitation, contingent on a collateral event, may take effect as a remainder, it shall operate as a remainder, and not as a shifting use or executory devise ; if it can vest in possession during the continuance of the particular estate, or immediately on its termination, it is a good remainder, if not, it fails ; Garwardint v. Carwardine (1 Eden. 27, 3-i), Gilbert on Uses (page 173, Sugd. ed.). Doe v. Morgan (.i Term Rep. 763). If this limitation then be a contingent remainder, there is no ground for the objection of remoteness ; because, admitting it to be a positive rule of law that an estate cannot be limited to the child of a person unborn, as a purchaser, — which was not attempted in this case, — the rule against remoteness or perpetuity does not apply limitations by way of particular estate and remainder at coimnon law, so as to limit the event on which a legal remainder may be made to depend. Death, therefore, without issue of a person whose male issue only is included in prior lin) Stations, is an event on whick a remainder may be made to depend. The limitation o^'er in this case, depending on [217] a general failure of issue of one or more of the daughters of the settlor, was on the execution of the deed creating it a contingent remainder, which would necessarily become vested within the period prescribed by the rule against perpetuity, or would have been preceded by an estate tail vesting in possession within that period. In the former event, the remainder would have become vested within the lawful period in the owners thereof, who might then immediately alienate it, or would have become liable, within the same period, to be barred by the tenant in possession of the preceding estate tail. Mr. Butler, in his edition of Fearne, obsei-ves, (p. 523), " that when Mr. Uses, p. 197), Tregonwell v. Sydenham (3 Dow. 194), Bristoir v. Boothhy (2 Sim. and Stu. 465), and Morse v. Lord Ormonde (1 Russ. 382), all of which turned on the same point, are distinguishable from the present case. Hopkins v. Hopkins (Gas. temp. Hard. 606), does not at all apply. The point there in which Lord Hardwicke erred, was corrected by Mr. Fearne, pointing out the distinction between estates executoiy and estates executed. Although there is no direct judicial decision that limitations, taken as remainders at common law, may be destroyed by suffering recoveries, it is now too late to struggle against the unanimous opinions, not only of distinguished text writers, but also of eminent Judges, from Lord Nottingham, in the Duke of Norfolk's Case (2 Swanst. 254) called " the case of perpetuities." * to Sir Edward Sugden in the present case. [The following cases, and others before mentioned, were cited on this point:— 5«r«ow v. Nichols (Litt. R. 315 ; Cro. C. 363), Doe v. Ferryn (3 T. Rep. 470), Dop V. Morgan {id. 763), Mogg v. Mogg (1 Meriv. 654), Phillips v. Deakin (1 Mau. and S. 744). [219] The limitation over being valid as a contingent remainder, cross-remainders were thereby well limited among the daughters of Lady Louth, not only as to her original share, but also in the accruing shares of her sisters. The words are, " in * For the origin and history of Perpetuities, Lord Bacon's Law Tracts, 145 ; Co. Litt. 124 ; Gilb. on Uses, 301 : 2 Harg. Jur. Arg., 27 : and Lew. Perp., were cited. 1075 II H.L.C., 220 COLE V. SEWELL [1848] case one or two of the daughters of P. Daly " should die without issue, " then, as to the share or shares of such daughter or daughters so dying without issue, to the use of all and every the daughters and daughter of such survivors or survivor, share and share alike, as tenants in couuiion in tail of the respective shares of such survivors in case of two survivors, and to the daughter and daughters of such survivor, in case there be but one." The only objection to that limitation carrying cross- remainders to the daughters of Lady Louth is, that as Lady Kerxy was the last survivor, her share could not pass to the daughters of her pre-deceased sister, under the words " survivors and survivor."' But it is plain, on the true construction of the deed, and regard being had to the intention of the settlor, and to the manner in which the same words are introduced in a preceding limitation, that tliese words were not intended to make the contingency of one sister surviving another, a condition essential to the children of that sister taking by way of cross-remainders. The words " survivors and survivor " meant simply " others and other ; " they have been so construed in all cases in which such construction became necessary to support the intention of the settlor or testator ; Doe V. IV a i new right (5 T. Rep. 427), Davkhon v. Dallas (U Ves. 578), Barlow v. Salter (17 Ves. 482), Curshaw v. Xewlund (2 Beav. 145). The next question is, whether the whole of Lady [220] Elizabeth Sewell's interest in the Daly estate, under the deed of 1752, was bound by the deed of 1779, and the fines levied in pursuance of it. The difficulty, if any there be, on this point, arises from the confusion in the recitals, and from the use of the word " vested." The deed recites, that by virtue of the deeds of 1749 and 1752, Lady Elizabeth Sewell was " seized or entitled in remainder or reversion, expectant and to take effect in posses- sion, after the determination of certain prior uses," etc., of and in both the estates comprised in those deeds. Then follows a recital of the relinquished deed of 1776, and that she being desirous to secure payment of certain debts, and subject thereto to provide for her son and daughter, " and subject thereto to settle and assure the said remainders or recoveries expectant and to take effect as aforesaid, of her said parts, etc., for the benefit of her said children," she therefore proposed and agreed to settle and assure the said parts, etc.," and all her right and interest in the premises, to the uses " after mentioned. These recitals demonstrate an intention to settle all her estates and interests, contingent, as well as vested. The use of the word " vested," in the next recital, cannot be held to restrict the generality of the words before used, " in order to carry such intention into execution, and to bar the estate tail in remainder or reversion expectant upon and to take effect as aforesaid, then vested in her." Then comes the operative part, by which she and her husband covenanted to levy fines of all her undivided shares in remainder or reversion, expectant and to take eft'ect as afore- said, and all the rights, estates, and interests of her. Lady Elizabeth, etc. These compreliensive terms, corresponding with the recitals, instead of limiting the opera- tion of the deed to the vested remainder in tail, [221] in the one-fourth of her mother's one-third share, extended to all Lady Elizabeth's interests. The term " vested " has not acquired a technical meaning, — it has been construed to mean '' payable ; " Sillick V. Booth (1 You. and Coll. 124). " Leases (0.) " ) ; Co. Litt. (pages 45 a, 47 b, 252 b) ; Binsley v. Burdon (2 Sim. and Stu. 519), Right v. Bucl-nell (2 Barn, and Ad. 278). Tlie covenant by Mr. Sewell, at the foot of the deed of 1779, shews that he and Lady Elizabeth were dealing with interests not then vested in her {supra, p. 194). 