and his Wife, the Trustees, &c. Which Words (according to the Construction of the Appellant's Counsel) must be useless and void, unless the Duke were not after Marriage to have as great, if not greater Supply, than he had before the Marriage.
Then 'tis said, That they should be seized in Trust for the Duke and his Wife, and the Survivor of them, for and during their natural Lives, and the Life of the longer Liver of them. And from thence 'twas argued, That the Meaning and Import of the Words (for and during) can be nothing less than the whole Duration and Continuance of their Lives from and after Sir Henry's Death and their Marriage.
Then the Will of Sir Henry proves the Intention, for that it recites, That he had settled, from and after his Decease, the Premisses in Trust for the Duke and the said Mary during their Lives and the Life of the longer Liver of them, and takes no Notice of the pretended precedent Condition: Which shows that he de-[87]-signed them the Profits immediately after his Decease and the Marriage.
Then in the Limitations over, they are not to take any Benefit of or by the Premisses, until the Death of the Duke and his Wife without Issue. Therefore it must be understood, that the Profits in the mean Time should remain to the Duke and his Wife, or the Survivor of them; And then it was farther observed, That the Duke comes in as a Purchaser upon as valuable a Consideration as any in the Law. viz. Marriage; and the Limitation over to the Respondent is a voluntary Settlement.
Decree reversed.—And as to the Objection of the Marriage being before Sixteen, it was not much insisted on the other side: And in Reason cannot be; because her continuing married till after Sixteen doth fully satisfy the Intent of the Deed, in Reference to this Matter. And many other Reasons were urged from the Intent of the Parties, and the Nature of the Interest, the same being a Trust Estate, and proper for Equity to construe. And upon the whole it was pray'd that the Decree might be affirmed; but the same was reversed.
Sir Cæsar Wood, alias Cranmer, v. Thomas Webb [1695].
[15 Lds. Jo. 705.]
Profits how to go under a contingent Limitation. Argument for Appellant.—Appeal from a Decree in Chancery; the Case was founded upon the next preceding: The Respondent was one of the Coheirs of Sir Henry Wood, and claimed a Moiety of the Profits of the Premisses during the Duke's Life; and the same was decreed accordingly. And now it was argued on the Behalf of the Appellant, That in this Deed there was no Appointment to the Respondent, till after the Death of the Appellant and his Issue: That all the Pretence for Webb's Claim was, That the Trust to the Appellant was not to take effect till the Duke's Death, altho' the said Duke had no Interest in the Estate, as hath been adjudged by the supreme Judicature of the Realm. That by the whole Purport and Design of the Settlement and Will, and the positive Words of it, Sir Henry Wood intended the said Trusts in Succession and Order, as they are mentioned. That the Design of the whole, was not to give any Thing to the Respondent, till after all the mediate Limitations were spent.
Argument for Respondent. Heir not to be disinherited by Implication.—It was argued on the other side with the Decree, That this Right of the Respondent to a Moiety as long as the Duke lives, is a necessary Consequence of the Lords Judgment in the other Case. That the same is founded upon fixed and established Rules of Law; as that an Heir is not to be disinherited by Construction or Impli-[88]-cation; but by plain and express Words; nor will the Law give away an Estate, or make it to Commence sooner than the plain and express Words will warrant. That wherever an Estate is limited in Remainder, that depends upon a Contingency or a Condition precedent, there, till the Condition be performed or Contingency happens, that Estate cannot Commence. That this was the Foundation of the Argument for the Appellant, in the other Case. And the same Rules hold here: For here is a Precedent Condition; for after the Marriage once had, the
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