Godson, 8 DeG. M. & G. 152; Shaw v. Ford, L. R. 7 Ch. D. 669; Jarm. on Wills, 4th ed., vol. 2, p. 14.

T. S. Plumb, for the defendants, children of the plaintiff. The word "children," in this will, is a word of purchase and not of limitation. The plaintiff, consequently only takes a life estate, with remainder to his children as tenants in common in fee. The only case where the word "children" is construed as a word of limitation is when the devisee has no children living at the date of the devise: Wild's case, 1 Tudor's L. C. 3rd ed., p. 669; Guthrie's Appeal 37 Penn. 9; Bouverie v. Bouverie, 2 Ph. 349; Jarm. on Wills, 5th Am. ed., vol. 3, p. 174 and 176. It is, in this view, unnecessary to consider whether or not the clause restraining alienation is good as a restraint upon alienation, it is rather to be considered as a clause. limiting the estate to be taken by the plaintiff, and its effect is to cut down the estate in fee, apparently given to Jeffrey v. Scott, 27 Gr., 314

the plaintiff, to a life estate. is expressly in point.

J. Bethune, Q. C., in reply. Wild's Case does not apply. If the plaintiff took a mere life estate, as contended by the other side, then the defendants only take a life estate in the remainder, and there is an intestacy as to the fee. Such a construction the Court should not readily adopt. By the construction contended for by the plaintiff the whole estate is disposed of, and that is to be preferred where the will is doubtful.

January 27th, 1883. BOYD, C.-I have difficulty in defining precisely the manner of the testamentary devolution of the estate in question in this case, because the construction of the will was not argued with reference to that specifically; but, upon the general question presented on the pleadings, I have come to the conclusion that the plaintiff cannot, by his own conveyance, confer an indefeasible estate upon the intending purchaser. The will was made in 1866, at which time the testator's son John had several children who are yet alive. Some have been born subsequently to

the will, but as a class they were then existing. The testator wrongly describes the land in question as being in the seventh concession of York, while it is, in fact, in the second concession. There is no seventh concession in the township of York, and the property is otherwise sufficiently identified as being his farm on which he lived. The only clause relating to the land in question reads as follows, (the learned Chancellor read the clause above set out). The internal evidence supplied by this language, indicates that the will was the production of a draftsman unlearned in the law. The limitation of the land is to "John Dixon, to his heirs and executors." The inartistic expedient of prohibiting mortgaging or selling, is employed with a view to keep the farm for the use of his children after his death. The clear intention of the testator is, while giving the farm to his son, to provide "that it shall be to his (the son's) children after his decease." The first words give unquestionably an estate in fee simple absolute to the plaintiff. The last words as plainly declare, without resorting to technical language, that the son's children are to have the place after their father dies. The whole of the clause is to be read together, and if possible, effect is to be given to every part of it. If there is to be any preference in regard to conflicting limitations, the leaning of the Court should be in favour of that which is last.

Of possible constructions. the following have the most to commend them and, while it is not needful for me to decide on any one in particular, they all agree in manifesting an interest in the children of the plaintiff, which is the point I now decide as being sufficient for the disposal of the matter in controversy.

(1.) Full effect can be given to all the words by holding that there is an estate in fee vested in the plaintiff, but subject to be defeated by executory limitation to his children after his decease, if any survive him. This would enable the plaintiff to convey in fee simple, but subject to defeasance if he predeceased his children. Barker v. Barker, 2 Sim. 249; Spence v. Handford, 4 Jur. N.S., 987. (a) (a) Also reported 27 L. J. N. S. (Ch.) 767.

(2.) The earlier technical words "to his heirs," may be rejected as being used ignorantly, or in misapprehension of their effect. This would cut down the first devise to one of a life estate only, and would vest the remainder in fee in the children, as tenants in common: Sherratt v. Bentley, 2 My. & K. 149. Such was the conclusion arrived at in a very tenaciously argued case, which came twice before the Supreme Court of Pennsylvania, Urich v. Merkel, 81 Penn. 332, in 1876, and Urich's Appeal, 86 Penn. 386, in 1878, in which the provisions were almost identical with those in the case now in hand.

Or (3.) It may be held that the effect of the latter words is to intercalate a life estate of the children between an estate for life in the plaintiff and the ultimate remainder in fee, vested in him by the first words of the clause. Such appears to have been the decision in Chycke's Case, as reported in 3 Dyer 357a. The devise was of the "fee simple of my estate to B. and after her decease to her son C." It was held that B. had an estate for life, remainder to her son C. for his life, and the fee simple thereafter to B. In the note it is said that Bendloe and Anderson both report this case as adjudged that C., the son, shall have the fee after the life estate of the mother determined. See also Doe d. Herbert v. Thomas, 3 A. & E. at p. 128, where Chycke's Case is referred to with approval by Littledale, J.; Doe d. Amlot v. Davies, 4 M. & W. 599; and Gravenor v. Watkins, L. R. 6 C. P. 505.

At present I am inclined to regard this last as the preferable construction.

The plaintiff should pay the infants' costs.

A. H. F. L.

36-VOL. VI O.R.

[CHANCERY DIVISION.]

RE CASNER.

Will, construction of Shelley's Case-Condition repugnant to the gift.

testator devised as follows: (1) I will and direct that all my just debts and funeral expenses be paid by my two sons, A. & B, share and share alike. and I hereby charge the estate hereinafter devised to them with the said payments (3.) I give and devise unto my son B. the north part of lot 24, to have and to hold unto the said B., his heirs and assigns to and for his and their sole and only use forever (6.) I desire it should be distinctly understood that the property hereinbefore devised unto my two sons, A. & B., is to be held by them only during their life times and then to become the property of their heirs, and that they, my said sons, shall have no power to convey or dispose of the said lands in any manner whatever. Held, that the rule in Shelley's Case applied, and B. took an absolute and unconditional estate in fee simple, and that the limitations contained in clause (4) were void as repugnant to the estate devised by clause (3) and unreasonable.

WILLIAM CASNER, by his last will and testament, dated 23rd April, 1868, devised as follows: "(1.) I will and direct that all my just debts and funeral expenses be paid by my two sons Aaron Casner and Albert Casner, share and share alike, and I hereby charge the estate hereinafter devised to them with such payments (3.) I give and devise unto my son, Albert Casner, the north part of lot number twenty-four, in the ninth concession of the aforesaid township of Burford, containing fifty acres, more or less, to have and to hold unto the said Albert Casner, his heirs and assigns to and for his and their sole and only use forever (6.) I desire it should be distinctly understood that the property hereinbefore devised unto my two sons, Aaron and Albert, is to be held by them only during their life times, and then to become the property of their heirs, and that they, my said sons, shall have no power to convey or dispose of the said lands in any manner whatever."

*

Albert Casner contracts to sell the lands mentioned in the third paragraph of the will to one Henry Platt Matthews. The purchaser objected to the title upon the ground that the sixth paragraph of the will operated so as to give only a life estate in the said lands to Albert

Albert

Casner subject also to forfeiture upon alienation. Casner thereupon filed a petition under R. S. O. Ch. 109, sec. 3, praying that it might be declared that he took an estate in fee simple absolute for his own use in the lands in question, and that the conditions in the sixth paragraph of the said will were void as repuanant to the estate devised by the third paragraph of the will, and as unreasonable.

The petition was heard on May 22nd, 1883, before Proudfoot, J.

C. T. Beck, for the vendor. The rule in Shelley's Case applies, and the vendor takes a fee simple under the will notwithstanding any intention to the contrary which may be gathered from the sixth paragraph of the will. An express declaration that the rule is not to apply is nugatory. Tud. L. C. 3rd ed., pp. 589, 605, 606; Jarm. on Wills, 4th ed. vol. 2, p. 338; Leith's Blacks. 2nd ed. p. 176. The condition against alienation is void, being an absolute restraint upon a tenant in fee against any manner of alienation, and is repugnant to the estate devised: Lario v. Walker, 28 Gr. 216. The cases in which a condition against alienation has been held good are all distinguishable: Gallenger v. Farlinger, 6 C. P. 512; Pennyman v. McGrogan, 18 C. P. 132; In re Macleay, L. R. 20 Eq. 186; Armstrong v. McAlpine, 4 A. R. 250; Earls v. McAlpine, 27 Gr. 161, S. C. in App. 6 A. R. 145; Attwater v. Attwater, 18 Beav. 330; Renaud v. Joseph Guillet, L. R. 2 P. C. 4; Ware v. Cann, 10 B &. C. 483; Willis v. Hiscox, 4 M. & C. 197.

W. S. Gordon, for the purchaser. The rule in Shelley's Case does not apply, and the vendor takes only a life estate. This is clearly the intention of the testator, as gathered from the whole will, and takes the case out of the rule: Jarm. on Wills, 4th ed, vol. 1 p. 472. The condition against alienation is good, being for the purpose of better securing the payments of the debts out of the real estate : Earls v. McAlpine, 6 A. R. 145; Jeffery v. Scott, 27 Gr. 314.