Page:The English Reports v1 1900.pdf/705

But it was objected, that John Papillon took an estate tail in the Bentley estate under the will, as well as under the articles. In answer to this, it was said to be an established rule in law and equity, to construe wills according to the intention of the testator, as far as such intention can be gathered from the words of the will, and the rules of law will permit. That the testator's intention in his disposition of the Bentley estate, and the lands to be purchased, was so far clear, that he meant to limit both for the same estates, and in the same manner, because he had applied to both the same form of words; for it could not be supposed that the testator, a citizen and fishmonger, could intend to give different interests in his said estates, by the same form of words: and if the giving an express estate for life to John, and then an estate to trustees to support contingent remainders, was an undoubted proof of the testator's intention to give contingent remainders to the heirs of the body, as it certainly was, then it was as much a proof of his intention, as applied to the Bentley estate, as it was to the lands to be purchased. The first decree therefore, as to [460] the Bentley estate, was well founded: and that opinion not being denied upon the rehearing, it stood as an authority.

The respondent Clay, in his answer to the petition of appeal, relied much upon the statute 10th William III. for limiting certain times within which writs of error shall be brought for reversing fines, common recoveries, and ancient judgments; alledging, that the determinations of Courts of Equity with respect to limiting a time for granting rehearings, or bringing bills of review, or other proceedings to vary or set aside decrees made by those courts, had been analogous to the proceedings of courts of law founded upon that act; and insisting, that an appeal from a decree of a Court of Equity, to the House of Lords, was in the nature of a writ of error in parliament from such decree, and ought. not to be received after twenty years had elapsed from the time of pronouncing it, unless in special cases, it being within the reason and policy of the statute, though not within the words of it. He also insisted, that the standing order of the House, of the 24th of March 1725 (Jour. vol. 22. p. 632, 634), limiting the time of receiving appeals to five years from the signing and inrolling of the decree, was not intended to leave it open to any person to appeal from an ancient decree, merely because it happened to be inrolled within five years next preceding the time of presenting such appeal; and that in making this order, the House considered the inrollment of any decree pronounced in the Court of Chancery in England, as being, by legal relation, the act of the same day on which the decree was pronounced.

But to this it was answered, that before the statute alluded to, a writ of error in parliament, or in other courts, might by the common law be brought at any time; and that before the standing order of 1725, there was no limitation to appeals in parliament. Both the writ of error and the appeal were, by the common law, the right of the subject. By the statute, which is a regulation to all courts, writs of error are limited to twenty years from the fine levied, or recovery suffered, or the judgment signed or entered of record; and by the standing order, appeals are limited to five years after the signing and inrolling the decree. As therefore there are distinct provisions for writs of error and petitions of appeal, the analogy attempted by the respondent, could not be applied to the case; nor could any rules as to rehearings in Courts of Equity, which is a matter of discretion in the court, be applied to an appeal, which is a matter of right, provided it conforms with the standing order: and as to the construction of this order, it was sufficient for the appellants, without presuming to discuss the intent of it, to submit that no doubt could arise upon the construction of the order, the expression being clear and unambiguous; and that this case was within the order, it being admitted, that the decree in question was in fact signed and inrolled in March 1764, which excluded all fictitious relation; and such a relation would, in the present case, bear the harder upon the parties, as their rights under the decrees did not accrue in possession, until the death of John [461] Papillon, in August 1763; and one of the parties in particular, from the pronouncing of the decree in 1731, to the present time, laboured under a total incapacity of attending to any of his affairs.

On the part of the respondent Clay (for none of the other respondents seem to have appeared) it was contended (C. Yorke, J. Skynner), that the determinations