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![handle is hein.slavery/ssactsengr0193 and id is 1 raw text is: HOME V.. BENTINCK
It is true, that where the general intent cannot be effected without giving the devisee
an estate tail, that construction must be put on a devise, Langley v. Baldwin (in
Atturney-General v. Sutton, 1 P. Wms. 59); but that is not necessary here; and
independent of the express words, it is clear the devisor meant the nephews only to
have an estate for life. If they marry and have issue, that issue is not to inherit in
the ordinary way, but to take distributively under the appointment of their parents :
and yet it is contended, that one nephew may take an estate, suffer a recovery, and
defeat this disposition to the future grand nephews. Issue may be applied as a word
of purchase [129] or limitation, accordingly as the intent of the devisor may require (a).
The provision made for the grand nephews shews, that, with respect to them, it is
used as a word of purchase, and the sense there affixed to it must govern the sense in
which it is to be applied in the rest of the will. Robinson v. Robinson (1 Burr. 38),
Hockley v. Mawbey (1 Ves. jun. 143), and Doe, dem. Wright, v. Jesson (5 M. & S. 95),
especially the latter, seem to rule the present case. In Doe v. Jesson the power in the
parent to appoint among his children, was one of the reasons for holding that he had
only an estate for life, notwithstanding the devise was to such heirs of his body as the
parent should appoint. Upon the authority of that case, too, the same construction
must be put by the Court upon the word issue, in the first part of this codicil, as has
been put by the devisor himself in the latter part, and the children must take dis-
tributively as purchasers. A life estate, here, will also be consistent with the testator's
general intent: for, though, in some cases, if the first taker have only an estate for
life, the property may, in consequence of his having no larger estate, go over to a
stranger to the exclusion of some of the blood of the first taker ; yet, here, that incon-
venience is avoided by the parent having a power to appoint a fee among his children.
It is not necessary, here, to argue what could be the effect of the parent's omitting to
appoint, or to enter into the distinction between powers and trusts; though it is
probable that, if the parent omitted to appoint, a Court of equity would consider
him as a trustee, and appoint in his stead: Brown v. Biggs (4 Ves. jun. 708.
5 Ves. jun. 495).
Lawes in reply. The codicil no where enables the parent to appoint a fee among
his children: he has only [130] a bare power of appointment, without any mention of
the quantity of estate to be appointed. The cases cited do not affect the terms of the
present will, and Doe v. Jesson is clearly distinguishable ; for, there, the devisee had
only a life estate given him in the first instance.
Cur. adv. vult.
The following certificate was afterwards sent
This case has been argued before us by counsel, we have considered it, and are of
opinion, that the Plaintiff, George Evans Bruce, took an estate for his life only in the
estate in question in this cause. R. DALLAS. J. BURROUGH.
J. A. PARK. J. RICHARDSON.
(IN THE EXCHEQUER CHAMBER.)
HOME v. LORD F. C. BENTINCK. June 17, 1820.
[S. C. 4 Moore, 563; 8 Price, 225. Applied, M'Elveney v. Connellan, 1864, 17 I.
C. L. R. 66. See Dawkins v. Rokeby, 1873-75, L. R. 8 Q. B. 268; L. R. 7 H. L.
744. Discussed, Ilennessy v. Wright, 1888, 21 Q. B. D. 513; Chatterton v. Secretary
of State for India, [1895] 2 Q. B. 192.]
The commander-in-chief of the army, having directed an assemblage of commissioned
military officers to hold an enquiry into the conduct of H., a commissioned officer
in the army ; and H. having sued the president of the enquiry for a libel stated to
be contained in the report thereupon made : Held, that this report was a privileged
communication ; that it was properly rejected as evidence at the trial ; and that an
office copy of the same was also properly rejected.
The Plaintiff declared against the Defendant for a libel. The declaration, which
consisted of several counts, setting forth various parts of the libel, with the [131]
(a) By Wilnot C. J., in Pue v. Grew, 2 Wils. 323.
2 BROD. & B. 129.](ViewImageLocal?handle=hein.slavery/ssactsengr0193&div=1&collection=&method=preview&ext=.png&size=3)