1812.

MITCHELL against

STAVELEY.

award was good. Now here it does not appear that the arbitrators did not notice the defendant's claim to an indemnity: but if they had not, it is not available by way of plea, but was only ground of application to the Court, not going to the entire justice of the award. The negotiable bills were accepted by the plaintiff; he therefore was the person first liable to the holders, and consequently, as between these parties, was entitled to be credited with the amount in account.

Lord ELLENBOROUGH, C. J. At any rate this was a matter in difference between the parties, which was submitted to the arbitrators under the reference of all matters in difference. And without saying at present how far the award is good upon the other matters which they have decided, it is sufficient to say that the 7th plea states that a certain other matter not noticed in the award was in difference between them, of which notice was given to the arbitrators, but that their award is altogether silent upon the subject. They were called upon to act on a matter in controversy, and have not acted. The award therefore is not only not final, but there is no award at all respecting one of the matters in difference referred, which is stated to have been notified to the arbitrators. It was a condition of the submission that they were to award upon all matters in difference between the parties. That is an important difficulty against which the plaintiff has to contend, and it would be to no purpose to amend the pleadings.

LE BLANC, J. The submission was of all matters in difference; and it is stated that the indemnity of the defendant as a drawer of certain bills accepted by the

plaintiff,

plaintiff, and then outstanding, was at the time of making the submission a matter in difference between these parties, and that it was notified to the arbitrators; but there is nothing stated in the award respecting the outstanding bills, or any indemnity against them.

Per Curiam,

Judgment for the Defendant

1812.

MITCHELL

against STAVELEY.

on the 7th Plea.

RIGHT, Lessee of GEORGE DAY, against JOAN

T

DAY.

HIS ejectment, which was brought to recover certain lands called West Sugworthy in the parish of Roborough in the county of Devon, was tried at the last assizes at Exeter before Graham, B. when a verdict was found for the plaintiff, subject to the opinion of the Court upon the following case.

Thomas Day, being seised in fee of the premises in question, by his will duly executed and attested, after devising to his wife Elizabeth Day an annuity for six years, and after the expiration thereof, an estate called Fillafin for her life, and giving pecuniary legacies to his daughter Frances Day, and other persons severally, devised as follows: "All the rest, residue, and remainder of my estates, lands, goods, and chattels, I give and bequeath unto my son George Day, whom I make my sole executor. But in case my son shall die under the age of 21 years, or shall leave no issue male or female, then I give all my said lands and estates unto my said daughter Frances Day, she being surviving, and her heirs male or female. But in case my son and daughter shall both happen to leaving no issue, then I give and bequeath my lands and

F 2

die,

estates

Friday, June 5th.

Under a devise

to the son of

the testator of the residue of

the testator's

estates, &c.;
shoulddieunder
21, or (which
is to be read as

but in case he

and) should

leave no issue

male or female,

then to the tes

tator's daugh ter surviving,

and ber heirs

male or female;

but in case his

son and daugh

ter should both

die, leaving no

his cousin and his heirs; the

issue, then to

son takes a fee

with an executory devise to

the daughter, upon the event under 21, and without leaving issue; with another executory

devise over.

1812.

RIGHT,

Lessee of
DAY,
against
DAY.

estates unto my cousin George Day and heirs, paying unto my wife 201. yearly out of the said estates: but then she is to relinquish her right to Fillafin. But then it is my will, and I bind the said George Day, to pay unto my cousins J. D., F. B., and H. C., and my daughter-in-law M. H. 501. each, to be paid them by the said George Day in one year after he shall inherit or occupy the said estates and lands." Upon the death of Thomas Day the testator, George Day his son entered and became possessed of the premises; and having attained his age of 21 years, and having lawful issue, namely, the said George Day, the lessor of the plaintiff, and other children, by his will duly executed and attested, devised to his wife Joan Day (the defendant) all his messuage or tenement, with the appurtenances, called West Sugworthy, for her life; she keeping the premises in good repair. Geo. Day, the son, afterwards died, leaving Geo. Day, the lessor of the plaintiff, his eldest son and heir at law, and other lawful issue, and the defendant Joan Day his widow; which latter after his death was possessed of the premises. If the lessor of the plaintiff were entitled to recover, the verdict was to stand: otherwise, a nonsuit was to be entered.

Bayley argued for the lessor of the plaintiff, that George Day, the son of the devisor, took only an estate tail, and not the fee. He admitted that the words first used were large enough to pass the fee; but he contended that the subsequent words, "But in case my son and daughter, shall both happen to die, leaving no issue," then over to the cousin, restrained it to an estate tail in the son.

W. Courtenay for the defendant, contended that George Day, the son, took in fee, with an executory devise over,

to

to take effect in the event of his dying under 21, and without issue. But the Court thought the case too clear for argument.

Lord ELLENBOROUGH, C. J. A multitude of decisions, such as Fairfield v. Morgan(a), Eastman v. Baker(b),and Denn v. Kemeys (c), following Sowell v. Garrett, which is reported in Moore, 422. 2 Rol. Rep. 282. and other books, have established that the disjunction word or, in a devise of this kind, is to be construed as the copulative and, to avoid the mischief which would otherwise happen of carrying over the estate if the first devisee died under the age of 21, though he had left issue; when it was the apparent intention of the devisor that both events should happen, the dying under 21, and without issue, before the estate should go over. Then at the age of 21 the testator contemplated that the devisee would take the fee, and consequently the power of disposing of the estate in what way he pleased; the testator leaving it to the devisee, after his attaining 21, to make what provision he pleased for his issue, if he had any but only providing in the event of the devisee dying before 21, that the estate should not go over from the issue.

GROSE, J. agreed.

LE BLANC, J. If the question had rested merely on the operation of the words relied on by the plaintiff's counsel, it would have been very different; but here the residue of the testator's estates, &c. is first given to the son; but in case he should die under 21, or (which the

(a) 2 New Rep. 38. (b) 1 Taunt. 174.

(c) 9 East, 366.

1812.

RIGHT, Lessee of DAY,

against

DAY.

courts

1812.

RIGHT, Lessee of DAY, against DAY.

courts have read and) should leave no issue, then to the daughter surviving, and her heirs male or female. He thereby provides that the estates should not go over to the daughter but in the event of the son dying under 21, and without leaving issue: and then he makes provision in case both his son and daughter should die leaving no issue, that the estates should go over to his cousin; that is, if the son died under 21 and without issue, and if the daughter died without issue. The event therefore on which the estate was to go over did not happen.

BAYLEY, J. The words, dying without issue, as they occur in this will, do not mean a dying without issue indefinitely, but under such special circumstances as would enable the estates to go over to the daughter after the son's death; that is, in case he died under 21 and without issue; and to the cousin after the death of the daughter without issue.

Postea to the Defendant.

BORASTON