DOE d. CADOGAN C. EWART. [ *665 ] | *666 ] twenty-four, *this was a vested interest in him, descendible to his heir-at-law." "And I conceive that there can be no doubt on this question. It has been argued, that it depended on a condition precedent, and that not having happened, that the estate never vested in Michael Lea." "The only case cited in support of it is that of Brownsword v. E lwards (1) but it must be remembered that the words there are very different from the present. There it was 'if he should attain the age of twenty-one:' but the words in this case only denote the time when the beneficial interest was to accrue." The other two Judges in Court, Mr. Justice ASHHURST and Mr. Justice GROSE, gave their opinions to the same effect. There is also on this point the case of Doe d. Morris v. Underdown (2). We think these cases quite sufficient to show that the estate tail of Isabella was vested on the death of the testator, her mother having died in his lifetime (3). We may here observe that this may perhaps be the last time of the question, as to the effect of dying without issue, being agitated for, by the Act 7 Will. IV. & 1 Vict. c. 26, s. 29, which takes effect at the beginning of this year, all these expressions of "die without issue," or "die without leaving issue," or any other words which may import a failure of issue, shall be construed to mean a want or failure of issue in the lifetime of the party; and therefore the fifty-seven cases alluded to by Lord ELLENBOROUGH, in Doe d. Ellis v. Ellis (4), as having been mentioned by Lord THURLOW in *Pigge v. Bensley (5), as having occurred on this head, as well as several others since that time, may be considered as out of our reports, except as to wills made before the present year. The second question is, assuming Isabella to have a vested estate tail, whether the recovery suffered by her was sufficient to bar the estate tail: and, to do that, it is necessary to consider what estate the trustees took under the will. This Court had the authorities mentioned in the judgment. (4) 9 East, 386. (5) 1 Br. C. C. 190. (1) 2 Ves. Sen. 243. (2) Willes, 293. (3) On this point, Driver d. Frank v. Frank, 15 R. R. 385 (3 M. & S. 25), was cited in argument, besides occasion, a short time ago, to consider the question, what estate trustees took under a will, in the case of Doe d. Shelley v. Edlin (1); in which they adopted the rule laid down by Mr. Justice BAYLEY and Mr. Justice HOLROYD in Doe d. Player v. Nicholls (2), where Mr. Justice BAYLEY says, that "It may be laid down as a general rule, that where an estate is devised to trustees for particular purposes, the legal estate is vested in them as long as the execution of the trust requires it, and no longer, and therefore, as soon as the trusts are satisfied, it will vest in the person beneficially entitled to it." And Mr. Justice HOLROYD, in the same case, says that "A trust estate is not to continue beyond the period required by the purposes of the trust." But the COURT goes on (3) to say that, "if the rules above mentioned, as laid down by these Judges, be confined so as to say that the trustees originally take only that quantity of interest which the purposes of the trust require as far as is expressed by the words used in the instrument itself, or by the apparent intention of the maker of the instrument consistent with the language of it, then I *admit the rule to be correct. But if it be meant to apply to all cases in general where the trusts are no longer capable of being carried into effect, but yet the instrument, by the legal construction of it, already gave an estate which might continue for a longer period than that during which the objects of the trust had an actual existence, then that in my mind will admit of a different consideration. I admit that, for a great number of years past, the Courts have held that trustees take that quantity of interest which the purposes of the trust require; and the question is, not whether the maker of the instrument has used words of limitation or expressions adequate to convey an estate of inheritance, but whether the exigencies of the trust require a fee, or can be satisfied by a less estate." We acquiesce in what the COURT there said; and we will now consider what estate the trustees took under the will, as qualified by the rule laid down in that case. The first thing to notice is the interest they took before Isabella attained her age of twenty-five years: that was only an (1) 43 R. R. 432 (4 Ad. & El. 582). (2) 25 R. R. 398 (1 B. & C. 336). (3) Doe d. Shelley v. Edlin, 43 R. R. 437 (4 Ad. & El. 589). DOE d. CADOGAN v. ᎬᎳᎪᎡᎢ. [ *668 ] estate for years, determinable upon her attaining that age or dying before; and that was not a freehold, but a term of years; and it would not prevent Isabella from suffering a recovery, as she had the first immediate estate of freehold; and as the devise to her gave her the legal estate as far as the mere devise to her went, that would be a legal recovery. Another trust, imposed upon the trustees by the will, is to pay the rents and profits of the estate to the wife of the testator for her life, or during her widowhood: that would give them a freehold interest in the estate; but, as she died in the lifetime of the testator, it never took effect. And, as the duration of their estate for that purpose is limited by the will, it would fall within the general rule that, the object ceasing, the estate of the trustees ceases also. We do not enter into any consideration, whether the words in the will would give the legal estate to the trustees; but, if it did not, the wife of the testator would have had the legal estate; but, the estate being gone altogether, it is no objection to the recovery. The next thing is the annuity to Jane Dalston Hodgson. If an annuity be left charged upon the real estate, and the estate be devised to trustees, that alone does not give the legal estate to the trustees; but, if they are directed to pay the annuity, then they have the legal estate for that purpose. This is fully illustrated by Lord ALVANLEY in Kenrick v. Lord W. Beauclerk (1), as to payment of debts; and annuities stand upon the same footing. And then, inasmuch as the will directs the trustees to pay the annuity, there appears to be an estate of freehold in the trustees which precedes the estate of Isabella the daughter, and consequently would prevent her suffering a valid recovery. The next trust to be noticed is, that the trustees are to sell to pay debts, in case of deficiency of the personal estate. It appears from the case there was such deficiency; consequently, the trustees had an estate in fee to enable them to sell: and they have, in fact, sold part of the estates accordingly: and I presume (though it is not so stated in the case) that they have sold enough to pay the debts, and that, therefore, there does not remain any thing more to be done by them in that respect. Then a question arises, whether, as the objects of that part of (1) 6 R. R. 746 (3 Bos. & P. 175). the trust have been performed, there was any estate remaining in the trustees *which had been created for the purposes of this trust; and, therefore, it might appear, according to the case of Doe d. Player v. Nicholls (1), that, the object of the trust being performed, the estate of the trustees in fee-simple should cease also: but, inasmuch as the power of the trustees as to this arose upon a contingency, and that contingency has happened, they had a full power to sell any part of the premises: and then, as the will does not confine their power to sell so much as should be sufficient to pay the debts, and also as there is no devise over of such parts as should remain unsold, we are of opinion that the trustees retained the fee-simple created by the will in the whole of the estates of the testator, according to the qualification of the rule in Doe d. Shelley v. Edlin (2). It is true that the beginning of the language of the power to sell says "any part" of the estate, and does not say the "whole" or any part; but the latter part of the power says "the same premises or any part thereof;" and we think the legal effect of this, taken altogether, is to extend the power over the whole. The case of Warter v. Hutchinson (3) was, in some respects, the same, as to the limitations, as the present; and, though there was a devise in fee to the trustees, this Court held they only took a chattel interest; but the limitations were very complicated, and we consider the decision as having turned on the particular circumstances, and not on the general point of the trustees taking the fee. And we do not think that case sufficient to vary what we *consider the general principle, so as to give a chattel interest only to the trustees. Then, as the trustees, in our opinion, have a general fee simple in the whole of the estate, it is to be considered how that affects the recovery; and, upon that, we think such fee simple absorbs the freehold which they had for the payment of the annuity to Jane Dalston Hodgson, though not as a regular merger, and that the case is to be considered as upon the estate in fee being in the trustees; and, upon that, that they have the legal estate in fee. (1) 25 R. R. 398 (1 B. & C. 336). and see Warter v. Hutchinson, 23 R. R. DOE d. CADOGAN v. EWART. [ *669 ] [ *670 ] DOE d. CADOGAN v. EWART. 1838. *[698] And Isabella has an equitable estate in tail; and therefore she may suffer an equitable recovery, which will have the effect of barring all equitable remainders over, though it would not bar legal remainders. Then, is the remainder to the lessor of the plaintiff and Jane Dalston Hodgson a legal or an equitable remainder? We are of opinion that it is an equitable remainder. It is of the same quality in that respect as the estate to Isabella; and the trustees. have the legal estate; and therefore the remainder over is barred. We are of opinion, therefore, that the lessor of the plaintiff is not entitled to recover; and the judgment will be entered as agreed in the case. Nolle prosequi entered. RICHARDS v. FRY (1). (7 Adol. & Ellis, 698-707; S. C. 3 N. & P. 67; W. W. & D. 116; 7 L. J. (N. S.) Q. B. 68; 2 Jur. 641.) Trespass for chasing and detaining cattle. Plea, that defendant was possessed of a messuage, &c., and that he and all occupiers thereof for the time being, for thirty years next before the time when, &c., had of right had, and been used, &c., to have common of pasture in the locus in quo, that the cattle were depasturing, &c., to the disturbance of such right of common, and that defendant distrained, &c. On special demurrer, for that the right was not claimed to have been used, &c., thirty years before the commencement of the suit: Held, 1. That, as a plea under stat. 2 & 3 Will. IV. c. 71, the plea was bad, for not claiming the right either so, or as used, &c., thirty years before the commencement of some suit. As to which latter averment, quare, 2. That the plea could not be construed as claiming right of common simply by virtue of possession, assuming that, if so construed, it would have been good. TRESPASS. The declaration charged that defendant, on &c., broke and entered plaintiff's closes (described by names, abuttals, &c.), did damage there, and drove plaintiff's sheep, ewes, and lambs, &c., then depasturing and being in and upon the said closes of plaintiff, from and off the said closes to places at a distance from plaintiff's said closes, and kept and detained the said sheep, &c., and afterwards drove them to other places still more distant, &c. (1) Cited in the judgment of the Court of Appeal delivered by LINDLEY, L. J., in Hollins v. Verney (1884) 13 Q. B. D. 304, 306, 53 L. J. Q. B. 430, 432.-R. C. |