1833. TIBBITS against YORKE. ought to be considered the real proprietor. I think, therefore, that enough appears to support the present action. PATTESON J. I am entirely of the same opinion. The formal objections are clearly answered; and the only question is, what is the meaning of the word "proprietor" under the act of parliament? The argument, that a person, to be such proprietor, must have the legal estate, appears to me wrong; I think the word proprietor is not used in that strict sense in the act. The facts are, simply, that Mrs. Squire having an interest in the tolls, grants annuities to two persons in 1778, and for the purpose of securing these annuities she leases the tolls to Smithson for life and for ninety-nine years. In 1779 she grants two further annuities by another deed to the same persons; and it is clear there must have been a subsequent deed in 1781, which is not set out in the case, by which the four annuities are consolidated; for such a deed is recited in the deed of 1782. Under that deed of 1782 the defendant takes all the interest that was left in Mrs. Squire. She certainly must be considered to have been a proprietor of these tolls, though she had granted a lease of them for securing the annuities: it was, in fact, merely a charge upon the tolls: in substance she was a proprietor. Why, then, is not the defendant, who takes all her interest, a proprietor? He is, in truth, the proprietor of the tolls, taking them for her benefit, and to distribute among her creditors, and having the equitable interest vested in him for that purpose. The case seems to me to come directly within the meaning of this act of parliament. Judgment for the Plaintiff. 1833. DOE dem. JOHN ANDREW GALLINI against seised in fee of lands, devised fee, upon trust, to trustees in EJECTMENT for manors, lands, &c. in the county Testator being of Berks. Plea, not guilty. At the trial before Bosanquet J., at the Summer assizes for the county of Berks, 1832, the jury found a special verdict, stating as follows: Sir John Andrew Gallini, Knight, being seised in fee simple of the manors and other hereditaments, one fifth part whereof is sought to be recovered by the lessors of as to part, to permit his eldest son to receive the profits for life, and as to other parts, to permit his two daughters to receive the profits for life; and also, upon trust, during the lives of his said children, to preserve contingent remainders: And after the decease of any or either of his said children, he devised the estate to him or them limited for life as aforesaid, unto all and every his, her, or their child or children living at the time of his, her, or their parents' decease, or born in due time afterwards, for their lives as tenants in common; but, nevertheless, with an equal benefit of survivorship among the rest of the said children, if more than one, and any of them should die without leaving issue, the child or children of each of his said sons and daughters taking the rents and profits of his, her, or their parents' estate only: And from and after the decease of all the children of each of his said sons and daughters without issue, he devised the estates to them respectively limited as aforesaid, unto and among all and every the lawful issue of such child or children (during their lives) as tenants in common, and to descend in like manner to the issue of his sail sons and daughters respectively, so long as there should be any stock or offspring remaining: And for default or in failure of issue of any of his said sons and daughters, he devised the estates so limited to him, her, or them dying without issue, unto the survivors of his said sons and daughters, during their respective lives, in equal shares as tenants in common; and after their respective deaths he devised the same to the children of the survivor of his said sons and daughters, during their respective lives, as tenants in common, with such benefit of survivorship as aforesaid; and after the decease of all of them, to the issue of such children, in like manner as he had before devised the original estate of each of his said sons and daughters: And for default or in failure of issue of all his said sons and daughters except one, he devised all his said estates unto his only surviving son or daughter in fee. Held, that under this will, the eldest son of the testator did not take an estate tail (unless in remainder), but an estate for life; that his children took estates tail in undivided shares, as tenants in common. The doctrine that, in construing a devise, the general intent is to be preferred to the particular intent, is incorrect and vague; the true rule of construction is, that technical words, or words of known legal import, must have their legal effect, even though the testator use inconsistent words; unless the inconsistent words are of such a nature as to make it clear that the technical words are not used in their proper sense. 1833. DOE dem. the plaintiff in this action, duly made and published his last will and testament in writing, bearing date the 19th day of October 1799, and thereby devised unto certain trustees and their heirs, all his manors, farms, lands, tenements, and hereditaments situate at Yattenden or elsewhere in the county of Berks; also two messuages in Hanover Square in the county of Middlesex, in the several occupations of Dr. Osborne and William Mainwaring, with the appurtenances; and also his estates in France, therein described; habendum to the uses or upon the trusts, and for the intents and purposes thereinafter expressed; that is to say, as for and concerning his manors, lands, &c. in the county of Berks, upon trust to permit his son Francis Cecil Gallini to receive the rents, issues, and profits thereof (except certain timber) for his natural life, his said son thereout paying or providing for the maintenance, support, and necessaries of testator's wife Lady Gallini, for her life; and as for the messuage in Hanover Square, in the occupation of W. M., upon trust to permit testator's daughter Jesse to receive the rents and profits for her life; and as for the messuage in Hanover Square, in the occupation of Dr. Osborne, upon trust to permit testator's daughter Louise to receive the rents and profits for her life; and as for his estates in France, upon trust to permit his son John to receive the rents and profits for his life, subject to interest on the mortgage thereof. The will then proceeded as follows:— "And from and after the determination of the several and respective estates of my said sons and daughters of and in the said manors, farms, lands, messuages, tenements, and hereditaments in England, and the said estates estates in France, I give and devise the same estates unto the said trustees and their heirs during the several lives of my said children, upon trust to preserve the contingent remainders hereinafter limited from being defeated or destroyed, &c.; but nevertheless to permit and suffer my said sons and daughters to receive and take the rents, issues, and profits of the several estates devised in trust for them respectively for and during their natural lives (except in case of the forfeiture hereinafter declared): And from and immediately after the decease of any or either of my said children Francis, Jesse, Louise, and John, or in case of such forfeiture, I give and devise the estate or estates to him, her, or them respectively limited for life as aforesaid, unto and among all and every, his, her, or their child or children lawfully begotten, which shall be living at the time of his, her, or their decease, or born in due time afterwards, for and during their natural lives, as tenants in common and not as joint tenants; but nevertheless with an equal benefit of survivorship among the rest of the said children, if more than one, and any of them shall die without leaving issue; the child or children of each of my said sons and daughters taking the rents and profits of his, her, or their parent's estate or estates only: And from and after the decease of all the children of each of my said sons and daughters without issue, I give and devise the estate or estates to them respectively limited as aforesaid unto and among all and every the lawful issue of such child or children (during their lives) as tenants in common, and to descend in like manner to the issue of my said sons and daughters respectively so long as there shall be any stock or offspring remaining; And for default or in failure of issue of any of my said S s 4. sons 1833. Dox dem. against GALLINI. 1833. Dog dem. sons and daughters, I give and devise the estate or estates so limited to him, her, or them dying without issue, unto the survivors of my said sons and daughters during their respective natural lives, in equal shares as tenants in common, subject to the forfeiture hereinafter declared; and after their respective deaths, I give and devise the same to the children of the survivor of my said sons and daughters during their respective lives as tenants in common, with such benefit of survivorship as aforesaid; and after the decease of all of them, to the issue of such children in like manner as I have before devised the original estate of each of my said sons and daughters; and for default or in failure of issue of all my said sons and daughters except one, I give and devise all my said freehold estates unto my only surviving son or daughter, to hold to him or her, and his or her heirs and assigns for ever." "Provided always, and I do hereby declare it to be my will, and direct, that my said sons and daughters, or any of them, or any of their issue, shall have no power or authority whatsoever, either at law or in equity, by virtue of this my will, or the trusts thereof, to bargain, sell, assign, release, or convey their respective interests in my said freehold estates for their respective lives, or any other term, right, or interest therein, either by way of sale and purchase, mortgage or otherwise, neither shall any annuity, yearly rent-charge, or any other sum or sums of money whatsoever be granted, assigned, or made payable out of the said freehold estates, or any parts or shares thereof to which they may become eventually entitled, or the rents and profits thereof, or any part thereof, by my said sons and daughters, or any or either of them, or the issue of any or either of them, to any person |