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Published online by Cambridge University Press: 16 January 2009
At the present day an entailed interest cannot arise in any kind of property unless an appropriate technical phrase (such as ‘in tail’ or ‘and the heirs of his body’) is used by the deed or will which seeks to create the entail. Prior to the Law of Property Act, 1925, entailed interests were impossible in personal property, but could be created in real property either by deed or by will. If created by deed, technical words of limitation were essential. In a will, however, technical phrases were unnecessary, provided that the will showed a sufficiently clear intention to confer an entailed interest upon the devisee.
1 Law of Property Act, 1925, s. 130 (1). A minor exception is allowed by sub-s. 3: but even this has been held to require formal words: Re Jones [1934] 1 Ch. 315.
2 Re Waugh [1903] 1 Ch. 744; Re Thomas [1920] 1 Ch. 515.
3 Parkin v. Knight (1846) 15 Sim. 83; Re Clerke [1915] 2 Ch. 301; Re Hayden [1931] 2 Ch. 333.
4 Silcocks v. Silcocks [1916] 2 Ch. 161.
5 Even a simple devise ‘to A’ might have this effect—e.g. when accompanied by a devise of the same land to B ‘if A die and leave no issue’: Forth v. Chapman (1720) 1 P. Wms. 663. But this was rare after the Wills Act, 1837, s. 29.
6 Presumably the word ‘therein’, as used by sub-s. 2, relates to the instrument' in which the expression occurs—despite the intervening words ‘will’ and ‘deed’; for these intervening words appear merely in subsidiary parenthetio clauses. See also the concluding paragraph of this article.
7 E.g. Cheshire, Modern Law of Real Property, 3rd. ed. pp. 362, 367; Williams on Real Property, 24th ed. pp. 124, 307–8; Goodeve and Potter, Modern Law of Real Property, p. 277; Rivington, Law of Property in Land, p. 101.
8 Re Aspinall's Settled Estates [1916] 1 Ch. 15 (‘in tail male’); Re Twopenny's Settlement [1924] 1 Ch. 552 (‘in tail’); Pole v. Pole [1924] 1 Ch. 156 (‘in tail’); Norton on Deeds, 2nd ed. 367–8.
9 Leventhorpe v. Ashbie (1635) Rolle Abr. 831, pl. 1; Seale v. Seale (1715) 1 P. Wms. 290; Chatham v. Tothill (1771) 7 Bro. P. C. 453; Dawson v. Small (1874) L. R. 9 Ch. 651 (‘and the heirs male of his body’); Re Walker [1908] 2 Ch. 705; Portman v. Portman [1922] 2 A. C. 473 (‘in tail’); Re Lowman; [1895] 2 Ch. 348; Re Sturt [1922] 1 Ch. 416 (‘in tail male’).
10 An exception occurred before 1926 in devises of freehold, by virtue of the rule in Shelley's Case, for a clear intention that A should take only for life with remainder to his issue (or descendants) was construed as giving simply an estate tail to A. But this rule has been abolished as regards devises which come into force after 1925: L. P. A. 1925, s. 131. Note also that the rule in Wild's Case (post) is exceptional in that external circumstances are there regarded (the existence or absence of children) in order to ascertain the intentions of the testator.
11 Roddy v. Fitzgerald, 6 H. L. C. 823, 871. Devise ‘to A for life and after his decease to his lawful issue’, with a gift over on failure of the issue: Held, equivalent to a simple devise ‘to A and his issue’, there being nothing to oust the general rule that ‘issue’ is prima facie constructed as a mere word of limitation.
12 Jesson v. Wright (1820) 2 Bli. 1, 20; quoted with approval in Roddy v. Fitzgerald (1857–8) 6 H. L. C. 823, 845.
13 Roddy v. Fitzgerald (supra) at pp. 837–8, 881 (the statute De Donis used it in two senses); Bradley v. Cartwright (1867) 2 C. P. 511, 520; Re Hopkins' Trusts (1878) 9 Ch. D. 131, 134; Re Hammond [1924] 2 Ch. 276, 279—280; Re Sutcliffe [1934] 1 Ch. 219. Note that the opinion, obiter, of James L.J. in Ralph v. Carrick (1879) 11 Ch. D. 873, 883, that the popular meaning of ‘issue’ is simply children, was discountenanced by Sargant, J. in Re Burnham [1918] 2 Ch. 196, 201.Google Scholar
14 See authorities cited in note 13 (supra); also Sibley v. Perry (1802) 7 Ves. 522; Carter v. Bentall (1840) 2 Beav. 551; Pruen v. Osborne (1840) 11 Sim. 132; Martin v. Holgate (1866) 1 H. L. 175; Edyvean v. Archer [1903] A. C. 379; Re Timson [1916] 2 Ch. 362.
15 Although abrogated by L. P. A. 1925, s. 131, in cases where it operated to confer a fee, it seems that s. 130 (2) retains the analogous rule which sometimes operated in bequests of personalty. Ex p. Wynch (1854) 5 De. G. M. & G. 189 ousted this analogous rule when a clear intention was shown to give only a life interest to A, but does not appear to cancel it entirely. See pp. 210–12, 213–14; also Theobald on Wills, 18th ed. 539–41. Thus a gift by will, before 1926, ‘to A for life and after to his issue successively according to seniority’ conferred upon A an absolute interest in personalty (Jordan v. Lowe, 6 B. 350) and a fee tail in realty (Shelley's Case). After 1925 its effect for personalty is unaltered; but for realty it gives A a mere life estate [under s. 131]. See also note 40 (post).
16 Wills Act, 1837, s. 29; henceforth such phrases are not to be construed as meaning an indefinite failure of issue unless the will shows that this was the meaning intended. This removes awkward decisions such as Chandless v. Price (1796) 3 Ves. Jun. 99 for wills made after 1837, unless an indefinite failure of issue is held to be intended—as in Re Thomas [1921] 1 Ch. 306.
17 (1599) 6 Co. Rep. 16b. See Pelham Clinton v. Newcastle [1902] 1 Ch. 34, 41; Re Cosby's Estate [1922] 1 Ir. R. 120, 132. Originally the rule applied to ‘issue’—probably because in those days the word signified ‘children’ only (ibid.); Lovelace v. Lovelace (1584) Cro. Eliz. 40. Underhill v. Roden (1876) 2 Ch. D. 494 assumed (incorrectly, semble) that it still applies. See also note 67 (post), and the paragraph to which it relates.
18 Roddy v. Fitzgerald (1857–8) 6 H. L. C. 823, 879. In theory, a context which showed a contrary intention' would exclude this construction. But in practice the only contrary intention commonly shown was that A should take the land merely for his life, with remainder to his issue after his death; and this', being governed by the rule in Shelley's Case, produced an estate tail for A as before (ibid.).
19 Roddy v. Fitzgerald (supra); Pelham Clinton v. Newcastle [1902] 1 Ch. 34; [1903] A. C. 111; Re Simcoe [1913] 1 Ch. 552; Re Lord Lawrence [1915] 1 Ch. 129, 146, (C. A.).
20 E.g. the old rule in Shelley's Case.
21 Ex p. Wynch (1854) 5 De G. M. & G. 189, per Turner L.J. at p. 225.
22 Chandless v. Price (1796) 3 Ves. Jun. 99; Donn v. Penny (1815) 1 Mer. 20; Lyon v. Mitchell (1816) 1 Madd. 467; also the cases cited by Lord Cranworth L.C. Ex p. Wynch (supra) at pp. 209–12.
23 See the cases cited in the preceding footnote, and note that they were supported by Fearne on Contingent Remainders: per Plumber V.-C. Lyon v. Mitchell (supra) at p. 475.
24 Roe v. Green (1767) 2 Wils. 322, 323; Ex p. Wynch (1854) 5 De G. M. & G. 189, 225; Re Coulden [1908] 1 Ch. 320, 323—quoted with approval in Re Hammond [1924] 2 Ch. 276, 280.
25 Ex p. Wynch (supra) at pp. 206–7; 211–12, 224.
26 See cases cited in notes 8 and 9 of the introductory section of this article.
27 S. 130 (2) of L. P. A. 1925 applies only to instruments ‘coming into operation after the commencement of his Act’.
28 Re Coulden [1908] 1 Ch. 320, 324.
29 It is submitted that Parker J.'s decision on the facts of this case was unsatisfactory. The bequest was ‘to be divided equally [at the death of the executorys] between my then surviving children and their respective issue’. He construed it as intending an equal division among surviving children and the issue of those who had died.
30 Hawkins on Wills, 3rd ed. pp. 241–2.
31 5 De G. M. & G. 189. No decision was required or given as to what interest the children took inter se. The question was simply whether or not they took an interest by purchase. See also Knight v. Ellis (1789) 2 Bro. C. C. 570 (‘to A for life and after his death to the issue male of his body’); Goldney v. Crabb (1854) 19 Beav. 338 (similar).
32 Apparently this was the rule even in 1585: Lovelace v. Lovelace, Cro. Eliz. 40, per Coke (arg.) in Perrott's Case, Moore's Reports, pp. 371–2. See also Hawkins on Wills, 3rd. ed. ch. vii.
33 Davenport v. Hanbury (1796) 3 Ves. 257; Leigh v. Norbury (1807) 13 Ves. 340.
34 Ralph v. Carrick (1879) 11 Ch. D. 873, 874; Theobald on Wills, 8th ed. 332–6; Re Coulden [1908] 1 Ch. 320 (‘equally among my children and their respective issue’); Re Rawlinson [1909] 2 Ch. 36 (‘in equal shares according to the parent stock’).
35 Including (if an immediate bequest) only such issue as are in existence when the testator dies.
36 Including such issue as are in existence when the testator dies and any others who come into existence before the death of A.
37 Lampley v. Blower (1746), 3 Atk. 396, 397.
38 Roddy v. Fitzgerald (1857–8) 6 H. L. C. 823.
39 Ex p. Wynch (1854) 5 De G. M. & G. 189.
40 S. 131 applies to the word ‘issue’ only when so used that it would, before 1926, have operated to confer a fee by virtue of the rule in Shelley's Case. ‘Issue’ is the only informal word to which this section applies. S. 130 (2) contains a saving clause (in parenthesis) which empowers s. 131 to intervene in this one case. See also note 15 (supra).
41 Re Sleeman [1929] W. N. 16.
42 (1879) 11 Ch. D. 873, 883.
43 It follows also that such a devise cannot be affected by the rule in Wild's Case. See note 67 (post), and the paragraph to which it relates.
44 L. P. A. 1925, s. 130 (2).
45 In Bird v. Webster (1853) 1 Drew. 338 Kindersley V.-C. was clearly of opinion that such a bequest gives an absolute interest to A. But his judgment rested on the assumption that any words which would create an entail in realty give an absolute interest; when applied to personalty; and on this point he was overruled by the Court of Appeal in Ex p. Wynch (1854) 5 De G. M. & G. 189 at pp. 212–13, 223.
46 It is conceivable, however, that these words may be considered to savour more strongly of inheritance than the words ‘and his issue’; in which case a presumption will arise that they are words of limitation even when attached to a bequest of personalty. If so their ordinary effect in a modern will would be to give an absolute (or fee simple) interest to A alone. S. 131 of the Law of Property Act does not cover ‘descendants’. See note 40 (supra).
47 Byng v. Byng (1862) 10 H. L. C. 171, 177.
48 E.g. Bowen v. Lewis (1884) 9 App. Cas. 890 at pp. 897, 905, 915; Clifford v. Koe (1880) 5 App. Cas. 447, 452 (‘children’). Re Birks [1900] 1 Ch. 417 (C. A.) at p. 420 (‘issue’).
49 Buffar v. Bradford (1741) 2 Atk. 220, 222 (personalty), followed in Webb v. Byng (1856) 2 K. & J. 669, 672 (realty). See also Ward v. Ward [1921] 1 Ir. R. 117, 119.
50 Clifford v. Koe (supra), per Lord Hatherley at p. 462 (realty); Newill v. Newill (1872) 7 Ch. App. 253 (personalty). There are many other decisions to the same effect—e.g. Re Davies Policy Trusts [1892] 1 Ch. 90; De Witte v. De Witte (1840) 11 Sim. 41.
51 E.g. Re Owen's Trusts (1871) 12 Eq. 316. As to the question which of the children will take, the rules are similar to those stated supra (as to ‘issue’). See e.g. Morse v. Morse (1829) 2 Sim. 485; Cunningham v. Murray (1847) 1 De G. & Sm. 366.
52 E.g. ‘to A for life and afterwards to her children’: Re Jones [1910] 1 Ch. 167. See also Re Seyton (1887) 34 Ch. D. 511 and the cases there cited; Mason v. Clarke (1853) 17 Beav. 126, 131.
53 L. P. A. 1925, s. 130 (2); supra, s. t. devises ‘to A and his issue’.
54 Re Buckton [1907] 2 Ch. 406.
55 Ward v. Ward [1921] 1 Ir. R. 117 (C. A.).
56 The earlier decisions showed some uncertainty (since removed) as to the proper course to adopt. Thus in Ward v. Grey (1859) 26 Beav. 485 a testator's endeavours to carry out ‘the last legacy of Nelson to his country’ by providing that all legatees shall contribute 1 per cent, of their legacies ‘to Mrs. Horatia Ward and her children’ was construed as giving her a life interest together with a power of appointment among the children. See also Crockett v. Crockett (1848) 2 Phil. 553.
57 (1599) 6 Co. Rep. 16b. The rule is of even earlier origin. See Lovelace v. Lovelace (27 Eliz.) Cro. Eliz. 40, as explained in Re Cosby's Estate [1922] 1 Ir. R. 120, 132.
58 Byng v. Byng (1862) 10 H. L. C. 171, 178; Clifford v. Koe (1880) 5 App. Cas. 447 at pp. 463, 468. In Roper v. Roper (1867) 3 C. P. 32 it was assumed (semble) that a child en ventre sa mere is insufficient, though subsequently born alive; but Mason v. Clarke (1853) 17 Beav. 126 and Elliot v. Joicey [1935] A. C. 209 suggest the contrary.
59 Byng v. Byng (supra) at p. 178; Roper v. Roper (supra); Bowen v. Lewis (1884) 9 App. Cas. 890, 897. Thus even in Wild's Case (supra) the rule was not applied, since the devise there was to parents for life ‘and after their decease to their children’.
60 Clifford v. Koe (supra) at pp. 452–3, 468; Bowen v. Lewis (supra) at p. 897; 6 Co. Rep. f. 17a—b.
61 6 Co. Rep. f. 17a—b; Co. Litt. f. 9a; Roper v. Roper (supra) at p. 35; Ward v. Ward [1921] 1 Ir. R. 117, 123. See also note 62 (post).
62 Since this reasoning applied only to an immediate devise, there was no real need for the rule in a postponed gift—e.g. to X for life and after his death to A and his children: Buffar v. Bradford (1741) 2 Atk. 220, as explained in Byng v. Byng (supra) at p. 178. Nevertheless, judicial definitions of the rule appear to assume that it is applicable even to a postponed gift; and the analogous rule for bequests.of personalty has been applied to postponed bequests. See casen cited post, notes 68—70.
63 E.g. Rivington, Law of Property in Land, p. 99. But the Lords in Clifford v. Koe (1880) 5 App. Cas. 447 were content to base their approval of the rule upon the fact that it was ‘so long ago established and so constantly followed’: at pp. 452, 462–3.
64 Byng v. Byng (1862) 10 H. L. C. 171; Ward v. Ward [1921] 1 Ir. R. 117 (C. A.); Re Hammond [1924] 2 Ch. 276.
65 Wild's Case (1599) 6 Co. Rep. 16b; Combe v. Hughes (1872) 14 Eq. 415; Re Jones [1910] 1 Ch. 167. In such cases, the gift to the children being postponed until the parent's death, any born before the death are able to participate.
66 Byng v. Byng (supra) at p. 177, per Lord Westbury L. C.; Wild's Case (supra) at f. 17b. The common explanation that the rule is ousted by evidence of a contrary intention is inadequate, in that it ignores the fact that the rule is not required when the will itself shows that an entail is intended.
67 On similar reasoning, the rule cannot apply to a devise ‘to A and his children’ if the will indicates that ‘children’ is used in the wide sense as meaning issue. Presumably it would not be applied to a devise ‘to A and his issue,’ even when ‘issue’ is clearly intended to mean children only; for such an intention is inconsistent with the supposition that the words are words of limitation.
68 Audsley v. Horn (1859) 1 D. F. & J. 226, 237. Lord Campbell then stated that the supposed rule whereby any phrase which would create an entail in retlty gives an absolute interest when applied to personalty is inapplicable in these cases. Presumably he thus overruled the decision of Knight-Bruce V.-C. in Read v. Willis (1844) 1 Coll. 86, which contains no ratio decidendi.
69 Mason v. Clarke (1853) 17 Beav. 126.
70 Morse v. Morse (1829) 2 Sim. 485; Gordon v. Whieldon (1848) 11 Beav. 170; Audsley v. Horn (supra); also the cases cited by Romilly M.R. ibid. (1858) 26 B. 196, 199; Grieve v. Grieve (1867) 4 Eq. 180; Clifford v. Koe (1880) 5 App. Cas. 447, 453. This distincition is not made in Hawkins on Wills, 3rd ed. pp. 243–5; nor was it made in Re Freeman's Trusts [1925] 1 lr. R. 27 (though the same result was reached on other evidence of intention). Hawkins (op. cit.) cites Audsley v. Horn (supra) as the leading case on the construction of bequests ‘to A and his children’, but appears to have overlooked the emphasis laid, by it will. He consequently leaves unexplained (and doubted) their ruling that A takes only a life interest (not jointly with the children when the will was made). Read v. Wills (supra) appears to have been overruled by Audsley v. Horn (supra), as also Re Parkinson's Trust (1851) 1 Sim. (N.S.) 242. In Buffar v. Bradford (1741) 2 Atk. 220, 222 the point was not taken, the parties having agreed that a joint bequest was intended.
71 See Bowen v. Lewis (1884) 9 App. Cas. 890, 897.
72 L. P. A. 1925, s. 130 (2).
73 Semble, L. P. A. 1925, s. 131 never applies to ‘children’; supra, note 40.
74 See Norton on Deeds, 2nd ed. pp. 467, 473–4 for the existing authorities.
75 ‘Instrument’ clearly includes both deeds and wills: s. 205 (1) (ii) and (viii).
76 The words are those of s. 130 (2), but the italics are mine.
77 Admittedly it makes one alternation—enabling a fee simple to arise in such cases without strict words of limitation. But this result is already secured by s. 60 (1) of the Act.
78 According to Co. Litt. 20b, semper proximo antecedents refertur'. But it is generally agreed that ‘every relative ought to be referred, not perhaps to the next antecedent which will make sense with the context, but to that to which the context appears properly to relate’: per Lord Chelmsford, Eastern Counties Ry. v. Marriage (1860) 9 H. L. C. 32 at p. 74.