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![handle is hein.slavery/ssactsengr0059 and id is 1 raw text is: 3 B. &ALD. 53. HAWKER V. HAWKER 757
whether it applies to the real estates only of which John Needham should die seised,
or to those of which he was seised at the time of making the covenant, and to that
also which he might subsequently acquire. The covenant is, that he would, by his
last will, devise all other his real estates, and also all his personal estate and effects
whatsoever, amongst the children of both marriages. Now a covenant to settle all
his personal estate, clearly operates only on that of which a man dies possessed.
Lewis v. Madocks (17 Ves. 48). There the Lord Chancellor determined, that 'all
expenditure, &c. not fraudulent, on the part of the husband, was authorised under
such a covenant. Here the real and personal estate are both included in the same
covenant, and it would be strange if the same construction were not to prevail as to
both. The form of the question shews, that Needham has the power to sell, for it is
whether he will be guilty of a breach of the covenant, unless he procures a re-convey-
ance. He has, therefore, a power of alienation. The only object of the covenant
was, to place the children of both marriages on an equality ; and that will be done,
whether this be in the situation of real or of personal property.
Preston, contrA. It does not follow, that, because the personal estate only of which
Needham should die pos-[535]-sessed would be bound by this covenant, therefore, the
real estate must follow the same rule; for they differ in many important particulars.
As, for instance, in wills, the real estate is considered as specific property, and the
personal estate is not. In the case of Lewis v. Madocks (8 Ves. 150), the words were,
All and singular the goods, &c., personal estate or effects that he should at any time,
during the joint lives of him and of his intended wife, be possessed of; and the
Lord Chancellor decided, that the personalty laid out in the purchase of a real estate,
was to be considered as a lien on the estate in the hands of the heir. Here, how is it
possible to get over the words and all other my real estates? The settlor had
previously bound some estates by the settlement; and it is stated that he was then
also seised of others. Those estates, therefore, clearly must be the estates meant,
when he speaks of all other his real estates. The proper construction of the covenant
will, therefore, be, to hold it applicable to all the real estates of which the settlor
was seised at the date of the instrument, and to the personal estate of which he
should be possessed at the time of his death, with a lien on the estates he might
subsequently acquire for the amount of the personal estate laid out in the purchase
of them by him.
Sugden, in reply. It is admitted, that over the personal estate, the party has full
power for the purposes of expenditure. The party can only distribute according to
the covenant, share and share alike, amongst the children. The settlement is perfectly
regular, as to a [636] part of the estates of which Needham was seised ; and as to the
rest, it is plain his object was, to retain the dominion over them; or, otherwise, there
is no reason why they should not have been included. Besides, the covenant is itself
contingent; for it was to have no effect unless there were issue of the second marriage.
It could not, therefore, be a lien on the other estates. It cannot be disputed, that
Needham may sell the estates, for he has his whole life to perform the covenant. It
would, therefore, be absurd to put such a construction on it, as would compel him to
re-purchase. That, therefore, shews, that the other construction is bad. And, besides,
if that were adopted, the real estates subsequently acquired, would not be bound,
even though he died seised of them, which would be a detriment to the children,
whereas the construction contended for by the plaintiff, would give the children the
advantage of having all the estate, both real and personal, belonging to Needham at
his death, bound by the covenant.
The following certificate was afterwards sent. This case has been argued before
use, and we are of opinion, that in the event mentioned in the question proposed to
us, John Needham will not be guilty of the breach of the covenant therein mentioned.
C. ABBOTT. G. S. HOLROYD.
J. BAYLEY. W. D. BEST.
[537] HAWKER AND ANOTHER against HAWKER AND OTHERS. Friday, April 28th,
1820. A testator, by his will, devised all his real estates in several parishes to
trustees, their heirs and assigns, for ever, upon trust to sell his estate at H. to
pay his debts; and in case it should not be sufficient, then, as to his estate at F.
upon trust, to sell that also, to make good the deficiency ; but in case it should](ViewImageLocal?handle=hein.slavery/ssactsengr0059&div=1&collection=&method=preview&ext=.png&size=3)