SWAN v. BROOME. 485, Comyns and Boyer. In the present year, 1764, out of 17 general return days, 9 (the greater part) are on Sundays:7 must always be so. In all cases, unless prohibited, Sunday is a good legal day. Cro. Jac. 59; the Term was adjourned on a Sunday. Dyer, 154 a; entry of an essoign shall be on the [ *498 ] Sunday, and not on the Monday following. The stat. 29 Car. 2, c. 7, s. 6, is confined only to serving writs or executing judgments on Sundays (m). And the prohibition proves what the rule was before the prohibition made. Vide etiam Alsop and Nicholls, Common Pleas, 1 Barnes, 207 (n), et cas. ibi citat. Thus far upon technical reasons; but if we consider recoveries in their more enlarged and sensible construction, as the mode of conveyance by tenant in tail, who in his life-time had completed every material act, the present case will be entitled to favour; and the Court will avail themselves of technical niceties to substantiate this mode of conveyance. [ *499 ] Hewit, Serjeant, for the plaintiff in error, argued, 1st. That when the writ of summons issues, the party cannot be intended to appear either in person, or by attorney, till the day of the return; 1 Leon. 86. 2dly. That there can be no judgment, but on the appearance or default of the parties, on the return day of the writ of summons. For the not answering the writ of summons was a breach of the feodal duty, and the lord thereupon might seize the lands and give them to the demandant, who became his tenant; and thereupon the writ of grand cape is founded. See for the process on default on recoveries; Rastal. Entr. 240, 286; Booth's Real Actions, 43, 44, c. 17. 3dly. That no judgment can be intended to be given on the precise day of the return, which is Sunday, and therefore dies non; but on the morrow, being Monday, the day after Edward Swan died. To support which, he cited 6 Mod. 196, Salk. 626; 6 Mod. 250, Davy and Salter (o); Cro. Jac. 16; Cro. Car. 11, where it is held, that Monday is always considered as Tres Trin. in contemplation of law. Plowd. 265 a; proclamations of a fine on a Sunday are ill, because the justices cannot sit in bank on a Sunday. 1 Ventr. 7; an original tested on a Sunday is bad. 2 Saund. 291; Court Leet cannot be held on a Sunday. Wynn and Wynn (p), alias Wynn and Apperley, Trin. 18 Geo. 2; held, that when the party died before [the return of] the writ of summons, the recovery was wholly bad, and could not relate back to the first day of the Term. *Walker, in reply, allowed, that judicial writs must be returnable on such day within the Term, as the Court sits upon; because the Court did not anciently sit on every day, but appointed certain special days for the parties to appear and answer. Wherefore, if judicial writs are tested or returnable on a Sunday, they are bad. But he insisted, that the law was (m) See Brookes v. Warren, post, 1273, and cases there referred to. (n) Pa. 293 (8vo. ed.). (0) So a writ of enquiry cannot be executed on a Sunday; Hoyle v. Cornwallis, 1 Stra. 387, Fort. 373. (p) 1 Wils. 35, 42, Willes, 563. S. P. Sheepshanks v. Lucas, 1 Burr. 410; Gibbons v. Stevenson, post, 1224. otherwise of original writs, the Court being always supposed o sit on the general return-day; which distinguishes them rom the by-acts of the Court, such as proclamation of a ine, &c. Lord MANSFIELD, C. J.-When the Terms were first framed, and so many return-days were made on Sundays, can it be supposed, that the Court did not then usually sit on Sundays? I nyself have sate in Parliament on a Sunday. In Venice they it on Sundays to administer justice. The Rota sits on Sundays. Ulterius concilium. [S. C. Post, 526.] "N. B. It appears from the Journals of the Commons, that, upon the sudden death f his late Majesty, King George the Second, both Houses of Parliament met at two 'clock, die Dominico, 26 Octobr. 1760, pursuant to the statute of Queen Anne; but he Lord Steward not appearing to administer the oaths, they departed without proeeding to business, or making any formal adjournment."-Note by the Reporter. SWAN บ. BROOME. EVANS on Demise of BROOKE v. ASTLEY. S. C. 3 Burr. 1570. SPECIAL verdict in ejectment at the Great Sessions of A devise to A.'s three sons successively in tail his will, written with his own hand; and thereby " gave, male; remainder granted, devised, limited, and appointed all his manors, to all and every lands, and tenements, in Over-Tabley, &c. in the county of other son of A., without naming 'Chester, and all other his manors, &c. wherein he had any any estate; remanner of estate, in the said county of Chester, to Samuel mainder for 'Duckenfield, son of Charles Duckenfield, of Mobberly, Esq. want of such during his natural life, and the heirs male of his body, law-500 1 ] fully to be begotten: and for want of such issue, to Charles tail male: [the ' and John Duckenfield, two other of the sons of the said after-born sons Charles Duckenfield, successively, in the same words: and of A. take an issue to B., in estate in tail for want of such issue, then to every son and sons of the said male; post, Charles Duckenfield, Esq. which shall be begotten on the 523.] body of Sarah, his now wife: and for want of such issue, "then to William Hulton (and afterwards to Samuel Goldston "and James Goldston, successively, in the same words) during "his natural life, and the heirs male of his body, lawfully to "be begotten: and for want of such issue, to the right heirs "of the said Samuel Daniel for ever." With a proviso, "that "the estates so limited to the said Samuel Duckenfield and "others should be on condition (q), that he, and they, and "their descendants, to whom the premisses shall come, shall procure an act of Parliament to take and use the name and arms of Daniel." And, by the said will, he gives power to every person in possession to let leases for three lives, on certain terms therein mentioned, and to make a jointure, not exceeding 2001. per annum: and makes sundry other provisions for payment of his debts and legacies, to the end that no part (9) See Gulliver v. Ashby, post, 607. EVANS บ. ASTLEY. AN of the estate might be sold, or the timber cut down, or the deer-park disparked. And Sir Samuel died 24th December, 1726. At the making of the will, Charles Duckenfield had only three sons, Samuel, Charles, and John; but afterwards, and before the testator's decease, he had another son named William, born 25th March, 1725. John died a minor and without issue, 3d November, 1729; Samuel, 29th November, 1729; and Charles, 3d December, 1729. And William (afterwards Sir William, Baronet,) the only surviving issue of Charles Duckenfield, came of age 25th March, 1476, and, the same year, obtained an act of Parliament, 19 Geo. 2, to take the name and arms of Daniel. The 4th of September, 1756, Sir William Duckenfield Daniel suffered a recovery of the premisses in the Court of Chester, the uses of which were declared to himself in fee; and by his will, dated 8th December, 1756, and republished 30th October, 1757, devised them to Dame Penelope, his wife, and her heirs, and died 11th January, 1758, without [501] issue male, but leaving one daughter, Henrietta. Sir William was himself, in right of his mother, a co-heir of Sir Samuel Daniel; and Sir Richard Brooke, the lessor of the plaintiff, was a devisee in trust of all the estates of Samuel Minshull, the other co-heir. Wherefore, this ejectment was brought to recover a moiety of the premisses; and the sole question was, what estate passed to Sir William Duckenfield on the death of his three elder brothers, without issue male of their bodies. Blackstone, for the plaintiff, argued, that he took only an estate for life; and he laid down these general principles:1. That devises are to be expounded according to the intent of the testator, without requiring any technical phrases, or formal arrangement of clauses. 2. That this intent must be collected from the whole will taken together, and not from detached parts of it. But, to prevent confusion from constructions merely conjectural, 3. This intent must not be collected from barely possible implications, but from such as are necessary, or at least highly probable. And therefore, 4. The words which shall disinherit an heir at law must not be ambiguous, but have a plain, apparent intent. And, lastly, that where an intent cannot be collected to the contrary, by express words, or by necessary or probable implications, there the will shall be expounded according to the letter, and the technical rules of law. And he insisted, that, from the whole will taken together, there appears no intent of the testator, (either express, or arising from necessary or probable implication), that Sir William should have a greater estate than for life; and therefore, as the words in their technical import convey only a life estate, (Co. Lit. 42), more shall not be given him, to the disinherison of the heir at law. The power of leasing, of jointuring, and the cautions taken to prevent waste, make it probable, that Sir Samuel never intended any thing more than an estate for life to any of the devisees specifically named in his will. Admit, it has been 502 ] *frequently held, that these circumstances (occurring singly) EVANS V. ASTLEY. shall not reduce a plain devise in tail into an estate for life. But juncta juvant; the more such circumstances, the greater is the probability. And though the probability is not so strong as to pull down the estates tail, that are already well and legally created in the former part of the will, yet it will be sufficient to prevent the erection of a new entail upon other supposed probabilities. It will rebut any other arguments to induce a belief, that he meant an estate tail where he has only expressed an estate for life. Though the Court will supply legal words to aid a testator's intention, it will not supply them to defeat it; or, even if dubious, to decide it in prejudice of an heir at law. If it be supposed, Sir Samuel meant an estate tail to the afterborn sons of Charles Duckenfield; it must be either, 1. Because he has given what the law determines to be estates tail to the three devisees next preceding, and the three which succeed this devise, and his intent shall be supposed to be uniform. But this will not be contended to be a necessary implication in the strict legal sense; nor is it such a probable one as the law requires: since mere uniformity is not a reason sufficient to do violence to the words of a will. There is nothing absurd, unjust, or inconsistent, in giving one brother an estate tail, and another an estate for life. Can the Court declare, that a testator shall not be kinder to one man than another? Or that he had not, in fact, a greater kindness for those children of his niece whom he knew, than for those which were then unborn? Where a devise is to different persons by different expressions in different clauses of the will, we should rather conclude the intention was different, than that it was one and the same. Beviston and Hussey, Skinn. 385, 562: a devise to Henry, son of Thomas, and his heirs, and if he die before twenty-one, then to the next son of Thomas; and if Thomas had no son, then to Henry, the son of William, and his heirs: held, to be only an * estate for life in the second son of Thomas, [ *503 on the authority of Middleton and Swain (r), which is reported Skinn. 339; but more fully, Show. Parl. Cases, 207, Swain and Fawkener: devise to seven younger children respectively, and their heirs, of seven shares in the New River; and, if any of them died under 21, the testator devises his share to the survivors, share and share alike. Upon the death of one of them under age, it was held, that the survivors took his share as tenants in common for life only, and not in fee: affirmed in Dom. Proc., because adding the word "heirs" in the first clause, and omitting it in the second, shews the testator to have a different meaning in the first from what he had in the second.-2. It may be said, the words immediately following this devise," And for want of such issue, then with remainder "over," will raise an estate tail by implication. But, in all the variety of cases, where estates tail have been raised by these or similar words subjoined to a devise for life, the person, on ailure of whose issue the next remainder is limited, hath (r) Or Swail, reported also in Comb. 201. always taken some estate in the preceding part of the will, on which the subsequent words shall operate by way of enlarge ment. But here Charles Duckenfield the father takes no estate at all, though the remainder be limited on failure of issue of his body. Gardner and Sheldon, Vaugh. 259. So a devise to the issue of B., and for want of such issue to C., gives the issue of B. only an estate for life; Cook and Cook, 2 Vern. 546 (s). "For want of such issue," refers grammatically to the issue last named before (t), which are all and every the sons of Charles Duckenfield: "For want of such issue," is therefore the same as saying, "and if Charles Duckenfield has no sons;" which brings it in terminis within the case of Beriston and Hussey, which I rely on, as in point upon both parts of the question. Supposing (for argument only) that it is proper to raise an estate-tail in these after-born sons, it cannot be done but by supplying other words. And what words is it proper to supply? Heirs of the body, or heirs-male of the body? Are they to be tenants in common with cross remainders? or jointtenants? or to take successively, by seniority of age and priority of birth? Which of these words will you supply, and why one set rather than another? If therefore Sir William took only an estate for life, his recovery was void (v), and a moiety of the estate, at his death, devolved to the lessor of the plaintiff. Harvey, for defendant, argued-That in all the modern cases, the general rule has been to effectuate the intent of the testator; and admitted the positions laid down by the plaintiff's counsel. He admitted also, that to persons unbiassed by legal knowledge, it would seem, that Sir Samuel Daniel meant only mere estates for life to the three eldest sons. But, as the law makes a construction of one to be estates tail, it will of the other also; for the meaning in both is the same. Or take it the other way; if the testator meant only an estate for life to the three eldest sons, then by devising to the after-born sons in different words, he must mean a different estate. By directing all the takers and their descendants to use the name and arms of Daniel, the testator intended to give estates to all the descendants; else the estate given is not equal in duration to the condition imposed upon it; Robinson and Robinson, King's Bench, 1756 (u): devise to Lancelot Hicks for life, and no longer, provided he takes the name of Robinson; and after, to such son as he shall have, who shall take the name of Robinson; and, in default of such issue, remainder over: held, an estate tail in Lancelot Hicks. Nothing need be supplied, to (s) "For they shall take only as persons described."-And see Goodright v. White, post, 1010. (t) See Ives v. Legge, Fearne, C. R. 376, 3 T. R. 488, n. (a); Doe v. Perryn, Id. 484, 491; Doe v. Dacre, 1 Bos. & P. 250. (v) Inasmuch as the remainders over were vested. For if it could have been contended, that the words would give the children of Sir William a fee as purchasers, such fee would be contingent, and the remainders over also contingent, and they would all have been barred by the recovery of the tenant for life: according to what is said in Doe v. Holme, post, 777, and cases there cited. (u) 1 Ld. Ken. 298, 1 Burr. 38; S. C. in Canc. 3 Atk. 736; 2 Ves. S. 225. |