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![handle is hein.slavery/ssactsengr0814 and id is 1 raw text is: MOORE V. CLEGHORN6
[423] MOORE V. CLEGHORN. July 13, 28, 1847.
[Affirmed, 17 L. J. Ch. 400; 12 Jur. 591. See Oakley v. Wood, 1868, 37 L. J. Ch.
30; Maden v. Taylor, 1876, 45 L. J. Ch. 571; Yarrow v. Knightly, 1878, 8 Ch.
D. 739.]
Devise to trustees and their heirs upon trust for the use and benefit of A., B., and
C. (without words of limitation). Held, that A., B., and C., took in fee.
Devise to trustees in fee upon trust for the use and benefit of A., B., and C., the
rents to be paid for their maintenance and education, or to the survivors or
survivor of them, share and share alike. Held, that they took equitable estates in
fee as joint-tenants.
The testator Robert Cleghorn, after directing his debts, &c., to be paid, in the
first place devised some freehold and also some copyhold property which he had
surrendered to the use of his will, unto and to the use of Eumenes Moore, George
Christopher and James Ensor, their heirs and assigns for ever, upon trust for the use
and benefit of his natural mustee boys, Ralph Brush Cleghorn, Thomas Paice
Cleghorn, and Matthew Cole Cleghorn, begotten by him on the body of Margaret
Steele, a free mulatto woman, of the island of St. Christopher, in the West Indies,
the rents, issues and profits to be paid for the maintenance and education of his said
before-mentioned sons, Ralph, Thomas and Matthew, or to the survivor or survivors of
them, share and share alike. And he devised another property to the same trustees
for the use of Margaret Steele for life, and at her decease to her children Ralph,
Thomas and Matthew, or the survivor or survivors of them.
The trustees were appointed executors.
The testator died in 1824 leaving his three natural children surviving. One of
them, namely, Matthew Cole Cleghorn, died in 1832 without issue or heirs, and the
Crown claimed his property (if any) by escheat. A second child, Ralph, died in 1842,
after severing the joint-tenancy (if any), and Thomas was still living.
A bill having been filed for the administration of the testator's estate, a question
arose as to the construction of the devise contained in his will.
[424] Mr. Kindersley and Mr. Pitman, for the Plaintiffs the trustees.
Mr. Turner and Mr. Stevens, for Thomas P. Cleghorn, contended, that the three
children took equitable estates in fee as joint-tenants. The limitation to the trustees
being in fee upon tPust for the use and benefit of the natural children, it followed
that the interest of the children was co-extensive with that of the trustees; Knight v.
Selby (3 Scott, N. R. 409, and 5 Man. & Gr. 92; and see Challenger v. Sheppard,
8 Term Rep. 597), Bateman v. Roach (9 Mod. 104). They argued that the words
expressive of joint-tenancy prevailed over the words share and share alike. (See
Barker v. Gyles, 2 P. Wms. 280; 3 B. P. C. 104; Blissett v. Cranwell, Salk. 226, and
3 Lev. 373; Stones v. Heurtley, 1 Ves. sen. 165; Smith v. Horlock, 7 Taunt. 129 ; Doe
d. Littlewood v. Green, 4 Mee. & W. 229 ; Stringer v. Phillips, 1 Eq. Ca. Abr. 292, pl. 11;
Lord Bindon v. E. Suffolk, 1 P. Wins. 96.)
Mr. Lloyd, for Brooks, claiming under Ralph.
Mr. Wray, for the Attorney-General, argued, that the children took legal estates
as tenants in common in fee, and he claimed one-third for the Crown; and at all
events the intermediate rents, they being of the nature of personalty and held
in trust for the Crown, Middleton v. Spicer (1 Bro. C. C. 201). He admitted
he could not argue against the authority of the case of Burgess v. lheat6
(1 Eden, 177).
Mr. Purvis, Mr. Schomberg, and Mir. Bilton, for the heirs of the testator, argued
that the legal estate was in the trustees only to apply the rents during minority, thab
the children took life-estates only, there being no words of limitation, and no use of
the word estate, [425] and that therefore the reversion belonged to the heirs of the
testator, as a resulting trust, Doe dem. Lean v. Lean (1 Q. B. Rep. 229), Gall v. Esdaile
(1 Russ. & Myl. 540, and 8 Bing. 323; 2 Jarman on Wills, 177, 178).
Mr. Briggs and Mr. Micklethwait, for other parties.
645
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