Lord Hardwicke LC held that the will was valid, and on the true construction, the property was to pass to John's sons.
The provision for the payment of the legacies (by the person to whom the estate should come) to his brothers and sisters, and to John , &c., is, as has been insisted on for the plaintiff, a very strong expression of the intent of the party; for as here is a specification of the children, it must mean the brothers and sisters of Randal Minshull, the eldest son of Randal Minshull the nephew, and could never intend to mean every taker.
For, supposing the words to mean the second son of the devisee, as there is plainly an estate-tail created prior to any interest he can claim (whether the words first heirs-male are construed words of limitation or purchase), an estate which may continue for a great number of years, in all probability, without any failure of issue, it would be a most absurd thing to charge a person, at so great a distance from the estate, with the payment of money to persons then in being, whom the testator could hardly suppose would be living at the time of the title accruing to such second son.
It has been objected against this construction, that John will then be devisee of the estate, and entitled to the £20 likewise, which the testator could never intend; but the words must be taken reddendo singula singulis, and John to have the £20 only in case of the first devisee's right taking effect in possession, and the determination of the preceding estates then in being at the time of making the will.
That appears to be a case only put by Anderson , and no resolution of that kind; but besides these the subsequent words vary essentially the preceding limitations, and alter the course of succession and enjoyment of the estate.
The word first means only that they should take in succession, according to priority of birth and seniority of age, and is unnecessarily providing for what the law itself does.