brown case mark wilson and other appellant thomas baily and another respondent  that march that march Mews dig three J S devise land to his son m and other  land to his son I and in case both of they shall die unmarried and without  lawful issue then his three daughter be to have the land as tenant in common  and not as joint tenant both the son die unmarried and without issue and two  of the daughter die in the lifetime of the survive son leave issue hold that  the daughter have such a contingent interest vest in they upon their father  death as be transmissible to their representative and that the survive  daughter be not entitle to the whole mark tew be seize of the land of Freffans  and Rathkilmore in the county of meath in Ireland by virtue of two lease for  life renewable for ever and also possess of the farm and land of Cullmullen  Agherskea Pelletstown Rathcore Monalvy Larracor and Readstown in the same  county by virtue of several lease for term of year on the d of February make  his will and thereby after confirm a annuity of pound settle upon his wife  Margaret for life by article make on his marriage with her and provide for the  payment of his debt and funeral charge he bequeathe to his brother alderman  David tew and his brotherinlaw William Stear and the survivor of they his  executor and administrator his lease and leasehold land of Cullmullen  Agherskea Pelletstown and Rathcore be four of the farm which he hold by lease  for year subject to the payment of pound per and to his wife for life and to  several legacy thereby bequeathe upon the trust follow videlicet in trust to  permit and suffer my son mark and his assign to receive the rend issue and  profit of the say land and premise and every of they until the day of my say  son mark marriage and then that the say alderman David tew and William Stear  or the survivor of they and the executor or administrator of such survivor do  and shall in conjunction with my say son mark make provision thereout by way  of jointure for such wife as the say mark shall marry not exceed pound per and  to be pay to her or her assign yearly and every year during her life in case  she shall outlive the say mark out of the yearly rend issue and profit of the  say land or some competent part thereof and upon this further trust and  confidence and to the intent and purpose that in case my say son mark shall  have any issue lawful beget then and in such case they the say David tew and  William Stear or the survivor of they his or their executor or administrator  shall at or upon the request of my say son mark convey assign and make over  unto he the say several lease leasehold land and premise and every of they and  all my estate term and interest therein in such manner as counsel learned in  the law shall reasonable brown advice or devise to enable my say son mark to  make provision for his child lawful beget or to be beget but my will be  further that if my say son mark shall happen to have no issue lawful beget  then and in such case the say land and premise so devise as brown er p  aforesaid in trust for my say son mark shall from and after his death go to  and vest in my son John and that from thenceforth my say son John shall be  permit and suffer to receive the rend issue and profit thereof and be entitle  thereto and to such conveyance of the same from my say trustee as be before  direct with respect to my say son mark concern the same subject nevertheless  to such jointure and provision as shall happen to be make thereout for the  wife of the say mark on his intermarriage it be my will and desire that if my  say son mark die before he be marry or if he shall die have no issue of his  body lawful to be beget then the say land shall be enjoy as aforesaid by my  say son John subject to the jointure and provision make for the say wife of  the say mark and the other charge and legacy aforesaid item I leave and  bequeathe to my say brother alderman David tew and my say brotherinlaw William  Stear their heir executor and administrator respective my lease and leasehold  land of Rathkilmore Moynalvy Larracor Readstown and Freffans in the say county  of meath subject to the several legacy herein after mention upon the trust  follow videlicet in trust to permit and suffer my say son John and his assign  to receive the rend issue and profit of the say last mention land and premise  and every of they until the day of my say son John marriage and then that the  say alderman David tew and William Stear or the survivor of they or the heir  executor or administrator of such survivor do and shall in conjunction with my  say son John make provision thereout by way of jointure for such wife as the  say John shall marry not exceed pound per and to be pay to her or her assign  yearly and every year during her life in case she shall outlive the say John  out of the yearly rend issue and profit of the last mention land and premise  or some competent part thereof and upon this further trust and confidence and  to the intent and purpose that in case my say son John shall have any issue  lawful beget then and in such case they the say David tew and William Stear or  the survivor of they his or their heir executor or administrator shall at or  upon the request of my say son John convey assign and make over unto he the  say several last mention lease leasehold land and premise and every of they  and all my estate term and interest therein in such manner as counsel learned  in the law shall reasonable advice or devise to enable my say son John to make  provision for his child but my will far be that if my say son John brown shall  happen to have no issue lawful beget then and in such case the say last  mention lease land and premise devise as aforesaid in trust for my say son  John shall from and after his death vest in and come to my say son mark and  that from thenceforth my say son mark shall be permit and suffer to receive  the rend issue and profit of the say last mention land and premise and be  entitle thereto and to such conveyance of the same from my say trustee as be  before direct with regard to my say son John concern the same subject  nevertheless to such jointure and provision as shall happen to be make  thereout for the wife of the say John on his intermarriage it be my will and  intention that if my son John shall die before he be marry or if he be marry  and shall have no issue lawful beget then and in such case the say last  mention land and premise shall be enjoy as aforesaid by my say son mark  subject nevertheless to the jointure and provision make for the say John wife  and the legacy hereinafter mention to my daughter Sarah item my will be that  in case both my say son mark and John shall happen to die unmarried and that  neither of they shall have any issue lawful beget then my daughter mary Sarah  and Catherine and the survivor and survivor of they and their assign be permit  to receive all the rend issue and profit of all the say lease land and premise  as tenant in common and not as joint tenant the testator then bequeathe to his  daughter mary pound and to his daughter Catherine pound Payable at marriage  with the further sum of pound each for mourning and the like sum of pound to  his soninlaw James Wilson and his daughter Elizabeth for mourning which legacy  he charge on the fortune and land before bequeathe to his son mark he also  bequeathe to his daughter Sarah pound to be pay on her day of marriage and  pound for mourning and charge such pound and pound on the land and fortune  before bequeathe to his son John and direct that the say three sum of pound  pound and pound shall bear legal interest from his death till brown er p  Payable as a maintenance for his daughter till marriage the will then go on as  follow and in case my say daughter mary Sarah and Catherine or any or either  of they shall happen to die before their respective day of marriage my will be  that the say fortune to they respective bequeathe as aforesaid shall go to and  be divide among my say child mark and John and the survivor of they and to and  among the survivor and survivor of they the say mary Sarah and Catherine share  and share alike and that in case any of his say daughter shall marry without  the consent of his trustee such of they as shall marry without consent shall  not be entitle to any more of the say fortune and portion than such sum as his  trustee brown shall think fit not exceed pound and he give the surplus to such  of they as shall marry with consent and after take notice that he be indebt to  his soninlaw Wilson in pound as part of the marriage portion of the testator  daughter Elizabeth which by their marriage article be not to be pay till his  death he direct that sum to be pay by his executor to the use of the say  article out of the profit of the land before devise to his son mark and charge  his say land therewith and he bequeathe to his son mark and John and the  survivor of they all the rest residue and remainder of his estate fortune and  substance not before otherwise dispose of and appoint the say David tew and  William Stear and his son mark his executor on the that of December the  testator die leave his say two son mark and John tew and four daughter  videlicet Elizabeth who in his lifetime intermarry with James Wilson and  receive a portion and mary Sarah and Catherine mark tew the son prove his  father will and he and his brother John enter upon and hold the land devise in  trust for they respective accord to the will until December when mark the son  die a bachelor seize in his own right of certain land call great Freffans  which he hold under a lease for life renewable for ever and have make his will  date the that of December whereby after give several legacy he bequeathe the  rest and residue of his estate real and personal to his brother John tew and  appoint the two trustee name in his father will executor of his will upon the  death of mark the son unmarried and without issue John tew become seize and  possess of all the leasehold estate and interest mention in his father will  and also become seize of the freehold lease of his brother mark and continue  in the possession thereof until his death mary one of the three unmarried  daughter of mark tew the father after his death intermarry with Digby Tarlton  by consent of her father trustee and afterward die without issue in the  lifetime of her brother John Sarah another daughter with the like consent  intermarry with Richard Mottley and have survive her husband make her will and  appoint her brother John tew her executor and die in his lifetime leave the  appellant Catherine and Elinor Mottley her two daughter and only survive issue  and Elizabeth the old daughter who have intermarry with James Wilson die in  his lifetime leave two child the appellant mark and Susanna Wilson John tew  intermarry with jane hill have previous to his marriage make a settlement upon  her out of the land of Freffans and Rathkilmore in bar of all dower and three  which she can claim out of his real and personal estate and soon after the  marriage die intestate and without issue but a contest arise brown concern the  right of administration administrator pendent light be appoint by consent of  all party Catherine the young daughter of mark tew the testator with the  consent of her father trustee intermarry with the respondent Thomas baily and  survive all her brother and sister and as such survivor she and the respondent  Thomas baily in her right pretend that they be entitle to all the leasehold  estate and interest of mark tew the elder and that the appellant although they  be the child and legal representative of the two other daughter of mark tew  the elder have no right or title to any part thereof and under colour of such  pretention the respondent Thomas baily and Catherine his wife in August  exhibit their bill in the court of chancery in Ireland against the appellant  and the heir at law and the legal representative of the survive trustee name  in the will of mark tew the elder and brown er p other state the several  matter aforesaid and pray that the respondent Catherine and the respondent  Thomas in her right may be let into and quiet in the possession of the say  land and for a account of the rend and profit thereof since the death of the  say John tew the appellant mark and Susanna Wilson by their answer say they be  the child of Elizabeth Wilson former tew one of the daughter of mark tew the  elder that John tew die leave the respondent Catherine his only survive sister  and the appellant mark and Susanna Wilson his nephew and niece the only  survive issue of his sister Elizabeth and the appellant Catherine and Elinor  Mottley his niece and only survive issue of his sister Sarah Mottley and  submit to the court whether by the word and meaning of the will of mark tew  the elder the respondent Catherine and the respondent Thomas in her right be  entitle to any more than one three part of the freehold and leasehold interest  therein mention apprehend that they as be the only issue of their mother  Elizabeth I be entitle to a distributive share of all the term for year and  other the personal estate of mark tew the elder and mark tew the young and  John tew and that the appellant mark Wilson as heir at law of his say mother  be entitle to her part of the freehold and real estate of her say father and  brother the appellant Catherine and Elinor Mottley by their answer insist that  as the daughter and only survive issue of their mother they be with the  appellant mark Wilson and the respondent Catherine baily the heir at law of  mark tew the elder and mark tew the young and John tew and be with the  respondent Catherine and the appellant mark and Susanna Wilson the next of kin  of the say John tew and entitle to their distributive share of his personal  estate and apprehend the intention of mark tew the elder in his will be that  in case of his two son die unmarried or without issue the several lease land  and premise in his will mention shall go to his brown three daughter mary  Sarah and Catherine and their respective issue and that they as the only issue  of the say Sarah be entitle to a equal share with the respondent Catherine of  the say lease land and premise on the that of June the appellant mark and  Susanna Wilson prefer their cross bill against the respondent and the say  Catherine and Elinor Mottley pray that their share of the freehold and  leasehold estate and interest mention in the will of mark tew the elder and  mark tew the young or whereof the say John tew be seize or possess at his  death may be decree to they and that a account may be take of the personal  estate of the say John tew and that they may be decree to receive their  proportion thereof the respondent by their answer to this cross bill insist  upon the several matter set forth in their original and amend bill and that  the respondent Catherine as the survive daughter of mark tew the elder be  entitle to all the lease for life and year mention in his will and the  appellant Catherine and Elinor Mottley also insist upon the several matter  contain in their answer to the respondent bill issue be join in both these  cause they come on to be hear before the Lord chancellor of Ireland on the  that of December and several subsequent day and on the that of that month his  lordship be please to decree that the respondent Catherine baily and the  respondent Thomas in her right be entitle to and shall have and recover all  the freehold and leasehold estate and interest contain in the will of mark tew  the elder decease and grant a injunction for that purpose and it be refer to  the master to take a account of the rend issue and profit of the say freehold  and leasehold interest from the death of John tew the intestate and into who  hand the same come and how dispose of and his lordship declare that the heir  at law of the say John tew be entitle to his real estate and descendible  freehold and that the respondent Catherine and the respondent Thomas in her  right shall have and recover one three part thereof and that the appellant  mark Wilson shall have and recover one three part thereof and that the  appellant Catherine and Elinor Mottley shall have and recover the other three  part thereof and it be order that the master shall take a account of such real  estate and of the rend and profit thereof since the death of the say John tew  by who receive and how apply and it be declare that his next of kin be entitle  to his personal estate accord to the statute of distribution videlicet the  respondent Catherine and the respondent Thomas in her right to one three part  thereof the appellant mark and brown er p Susanna Wilson to one other three  part thereof and the appellant Catherine and Elinor Mottley to the other three  part thereof and it be order that the master shall take a account of such  personal estate and the issue and profit thereof since the death of the say  John tew by who receive and brown how apply and also a account of the debt due  by John tew and his funeral expense and the usual direction be give for take  the say account and the consideration of cost and all further direction be  reserve until after the master report from so much of this decree as adjudge  the whole freehold and leasehold interest of mark tew the elder to the  respondent only the present appeal be bring and to obtain a reversal or  variation thereof it be argue c Pratt that by the word and meaning of his will  his three daughter mary Sarah and Catherine have such a contingent interest  vest in they upon their father death in his say leasehold estate and interest  as be transmissible to their assign or representative the testator have devise  the same to trustee upon the trust therein mention and declare express that in  case both his son mark and John shall die unmarried and that neither of they  shall have any issue lawful beget then his three daughter mary Sarah and  Catherine and the survivor and survivor of they and their assign shall take as  tenant in common and not as joint tenant and if upon the death of both the  brother mark and John without issue the one marry the other unmarried the  contingency have happen it be apprehend that the appellant Catherine and  Elinor Mottley as be the lawful issue of Sarah tew be entitle to a equal share  with the respondent Catherine of the devise estate of mark tew the elder in  virtue of his say will that the advantage of survivorship be against equity  and that no survivorship shall hold after marriage against the issue of either  of the three daughter mary Sarah and Catherine appear to be the intention of  the testator throughout his will for in one clause he declare that if any one  of his say three daughter shall die before marriage the fortune thereby  bequeathe to they respective shall go to the survivor in another clause he  limit over the portion of such as shall marry without consent to the other and  in the limitation of his leaseholds his express word be that his three  daughter mary Sarah and Catherine shall be tenant in common and not joint  tenant and these express word be the last in the sentence control the former  word of survivorship which the respondent will strain to their own advantage  against the whole tenor of the will and the justice and equity of the case  that it be apprehend the word and the survivor and survivor of they and their  assign can not be construe as descriptive of the person who be to take upon  the contingency happen for have that be the intention of the testator he will  have say or the survivor or survivor as he do in several other part of his  will with propriety beside if these word be consider as descriptive of the  person who be to take at the time of the contingency happen then if all the  three daughter have die leave issue in the lifetime of either of the brother  and the contingency have afterward happen it be apprehend that such issue can  brown not have take under this devise that the testator do not intend the  whole to a survive daughter from his add the word their assign for have he so  intend he will have say the survivor of they and her assign or the assign of  such survivor and will not have make use of the word their assign as tenant in  common and not as joint tenant but suppose that the contingency never happen  because John tew marry though he die without issue and though mark his brother  die a bachelor yet the appellant be equal entitle with the respondent  Catherine to the freehold lease and estate of mark tew the elder mark tew the  young and John tew as heir at law and be also equal entitle with her to the  lease for year as well as the other personal estate of John tew the intestate  as his next of kin and therefore it be apprehend that in either case the  decree be erroneous and ought to be reverse on behalf of the respondent it be  insist t jewel g Perrot that it appear the testator mean that the leasehold  estate devise for the benefit of his son mark shall go to his son John upon  either of these two contingency videlicet if mark shall die before marriage or  shall die have no issue and that the leaseholds give for the benefit of his  son John shall go over to his son mark if John shall die before marriage or  shall die have no issue and it seem clear to have be his meaning that if both  shall die before marriage or without have issue then brown er p the estate  shall go over to his three daughter mary Sarah and Catherine and the survivor  and survivor of they to comply with this intention the clause in the will  where he say that if both his say son shall happen to die unmarried or neither  of they shall have any issue lawful beget must be construe in the disjunctive  as if he have say if both my son shall happen to die unmarried or neither of  they shall have any issue lawful beget or be construe as express the two case  in either of which the devise over be to take place for no reason can be  assign to suppose he mean to devise to his daughter upon event different from  those he have provide for as between his son and more especial as such a  construction will make he die intestate in the case which have happen that the  devise in favour of his three daughter vest no estate or interest in they on  his death but be to take effect on a contingency to happen at a future time  namely on both his son die without have issue the person then to take be his  daughter mary Sarah and Catherine and the survivor and survivor of they as  tenant in common and not as joint tenant a preference be give to the daughter  or daughter who shall survive and this survivorship must refer to that period  of time when the event shall happen on which the devise be to take place that  be on the death of the son without have issue if more than one of the daughter  shall at that time survive such survivor must take as tenant in common and the  brown joint interest cease and if but one of the daughter shall be then  survive such only survivor must take the whole this be the plain and obvious  meaning of the devise without add to reject or vary any of the word and in  consequence of it the respondent Catherine be the only survive daughter of the  testator at the death of his son John she and the respondent Thomas her  husband in her right be entitle to the land and premise devise by the will as  to the objection that the limitation in favour of the daughter be void as be  on too remote a contingency videlicet a die without issue it be answer that  the contingency be so far from be too remote that it be to happen within the  compass of the life of the testator son mark and John for the trustee in the  will be on each of his son have issue to convey the premise devise to they  respective and if one shall die have no issue and the survivor shall have  issue then the land original devise to the son so die be to be convey absolute  to the survive son and in that case there be no devise over if both his son  die unmarried or if neither of they shall have any issue lawful beget then  only the devise in question be to take effect and the latter of these  contingency have happen by neither of the son have have issue the devise over  be good and therefore the testator heir at law and next of kin can not as such  have any right or title to the estate in question but after hear counsel on  this appeal it be order and adjudge that so much of the decree complain of as  have adjudge all the freehold and leasehold estate and interest contain in the  will of mark tew the elder decease to the respondent Catherine baily and the  respondent Thomas baily in her right and decree they to be put and quiet in  the possession thereof shall be reverse and it be declare that the same by  virtue of the say will upon the contingency which have happen be well devise  to the testator daughter mary Sarah and Catherine as tenant in common and that  one three thereof belong to the respondent Catherine baily and the respondent  Thomas baily in her right another three to the appellant Catherine and Elinor  Mottley and the remain three of the freehold lease to be divide in three  between the appellant Catherine and Elinor Mottley and the respondent and the  appellant mark Wilson and that the remain three of the chattel lease belong to  welldone Tarlton administrator of mary Tarlton and it be order that the court  of chancery in Ireland shall give such direction as may be necessary for  partition conveyance and delivery of possession accord to the several right of  the party declare and it be further order but after hear counsel on this  appeal it be order and adjudge that so much of the decree complain of as have  adjudge all the freehold and leasehold estate and interest contain in the will  of mark tew and adjudge that the rest of the say decree shall be affirm jour  vol p brown er p