Sidebilder
PDF
ePub

tersus

gether with the other property devised to her by the 1816 said tęstator during her life. Upon her death, the

}{ов dеm. * said John Wright entered into possession of the said Child houses and premises, called the Coal Yard, in the

Waigur, parish of St. Giles's, Middleser, and continued in such possession until the month of May,1805, when he died. leaving the defendant, James Camper Wright, his heie at law, who on the death of the said John Wright, took: possession of the premises, and held them at the time of the demise and ejectuent. James Camper, the testator's grandson and heir at law, departed this life in the year 1768, intestate as to the premises in ques-, tion, leaving Mary the wife of Edward Child, (one of the lessors of the plaintiff,) bis only child and heir at law, and also the heir at law of the said testator. The question for the opinion of the court is, whether the lessors of the plaintiff are intitled to recover. If the court shall determine that they are so intiiled, the verdict is to stand, if otherwise a nonsuit is to be entered. . .

Márkyat, for the plaintiff. The testator bad.no land in the parish of St. Giles's, London, the parish of St. Giles's, in which his house lay, being situated in Middlesex; and the question is whether by the devise to John Wright of “ all his estale, lands, &c. "known and called by the name of the Coal Yard, in the parish of St. Giles's, London,the devisee took an estate in fee, or for life only ? In the first case the lessors of the plaintiff are entitled to the reversion, there being no residuary devise, although there are general words in the introduction to the will, in some measure indicative of an intention to devise all the testator's estates. First, he commences by declaring that intention“ aş touching such worldly and personal estate wherewith it hath pleased God to bless ine in this life, I give, devise, and dispose of the same in manner following,"

18.

ROE dem.
CHILD

versus WRIGHT)

and accordingly gives the whole to his wife for life,
and of after her natural life (death) I do hereby order,
direct, give, devise, and bequeath all my lands, houses,
&c.freehold, copyhold, and leasehold, in manner follows
ing;" but these general words import noexpressintention
of devising all by the will; for the first general words
were satisfied by the devise to his wife for life, and the
latter are only an amplification upon, and connected
with and restrained by the concluding phrase “ in man-
ner following." The words estate, lands, &c. denote
not the interest which the testator had, but only a local
description of the specific estate, in which case the
words "s all my estate” do not pass the fee. The first
case upon the subject, is Murray v. Wise, * where it
was argued whether the words “ all my estate," in a
residuary devise would carry the fee, and it was decided
in the affirmative; and in Lord Hardwicke's time" all
my estate at Kirby Hall,t was held to pass the fee,
and in Moldfust v. Martin, I a devise of the testator's
estate at Bragwick to A. B. and all the rest of his real
and personal estate to C.-D. was held to pass the fee:
but there the court relied much upon the subsequent
devise of the residue, and held that the word,“ all the
rest,” must be taken to affect the previous devise, and
that it was a devise of one part of the testator's estate
to one devisee, and of the other to another. In Good-
wyn v. Goodwyn, Lord Hardwicke says, he will not
decide, whether a devise" of all his estate in A. in the
occupation of B. C. and D.” will pass a fee. In Doe d.
Smuil v. Allen, || it was held that the word heredita-
ments did not pass a fee, and so in Doe'd. Moor v. Mela
lor 1."

[ocr errors]
[ocr errors]

; * 2 Vern. 567. + 2 Atk, 37. I 1 Term Rep. 411,

i Vesey, 228. 118 Term Rep. 497. ' q 5 Term Rep. 558. 3 Anstr. 781. i B. and P. 553. 7 Parl, Ca. 8vo. zit. I ill. 7 July, 1800. .

versus WRIGHT

* Lord ELLENBOROUGH, C. J.“ I think, that Mr.'' 1806. Justice Buller, did not adhere much to the sense which

Roe dem. he is said; in Doe v. Mellor, to have once put upon Child the word 'hereditament."

· WILLIAMS, Serj. contrà. “ The only question is whether the words are descriptive of the quantity of the interest which the testator had or the locality of the estate; in the former case they will carry the fee, in the latter they will not. In l'ilson v. Robinson,* it was held that the words, all my tenant right lands give an estate for life only, but all my tenant right estate give an estate in fee. In Bridgwater v.Duke of Bolton,t totum statum suum was held to pass the fee. In Barry v. Edgeworth, a devise of all the testatrix's land and estate in Upper Catesby to W. Edgworth passed the fee but it was thought that it might be otherwise if the words were at Upper Catesby; yet the word land made no restriction of the word ' estate. In Bailis v. Gale, ş Lord Hardwicke held that the words all that estate I bought of M.' gave the fee. In Ibbetson v. Beckwith,|| all my estate at N. with all my goods and chattels to M. for life, and after her death to N.' were held to convey a fee. And be cited Cole v. Robinson, wbich was a devise, of all my estate right, &c. in whatever I hold by lease from J. E. and also the house called the Bell Tavern, to B.' which was read as if it were 'all my estate in the house called the Bell Tavern.".

Marryat, in reply. In Bridgwater v. Duke of Bolton, there was a devise of certain lands and mines to B. together with all his plate and jewels, and all other his estate, real and personal, not otherwise disposed of by his will, to be given by him to his chil

* 2 Lev. 97. 1 Mod. 101. + 6 Mod. 109. f7 P. IVms. 523.

$ 2 Vesey, 48. || Ca. Temp. Talbot, 15. Salk. 234.
NO. XXX. N. S.

HI

[blocks in formation]

dren as he shall think contenient, &c. concerning the meaning of which there could scarcely be a doubt. In Bailis v. Grey, if the testator purchased an estate of inheritance of M. that clearly falls within the description. But where the words were all my estate , at Kirby Hall, near Henninghum Castle, which is of

135l. a year, the description was held to be applied to the devise of the reversion, and not to the estate in the reversion. In Fletcher v. Smiton,* the words were

all the rest of my estates;' and in Tanner v. Wise, there was a devise of all the rest of the testator's estate."

Curia adv. vult. And now the opinion of the court was delivered to the following effect, by

Lord ELLENBOROUGH, C. J. after stating the case, The question is, whether, under these words in a will, ' I give unto my grandson John Wright, all my estate, lands, &c. known and called by the name of the Coal Yard in the parish of St. Giles's, London, the devisee took an estate in fee or an estate for life. The lessor of the plaintiff who claims as beir at law of the testator, contends that he takes an estate for life only. It is admitted by the counsel for the plaintiff, that the words all my estate' in a will, comprehend not only the lands but the estate therein, unless restrained by other words; but he contends that the word 'estate' is restrained by the words with which it is here immediately connected. And that the words 'lands, &c.known and called by the name of the Coal Yard in the parish of St. Giles's, London, immediately following are to be construed as descriptive of the local situation of the estate demised, and to restrain the general effect of the word estate. That then the word estate has no

* 2 Term Rep. 656.

versus

other effect, than the words 'lands called and

1806. known by the name of Castle Yard in Holborn,' in

Roe dein, another part of the will, according to the decision in Child the case of Doe d. Child v. Wright.* The general. WRICHT. effect of the words“ all my estate,' however they were coupled with others limiting them in point of place, as

at or in a certain place' has been universally admitted in the cases cited for the defendant, and has been ofien decided, as in the case of the Countess of Bridgwater V, the Duke of Bolton,t and also in Holdfust d. Couper v. Martin and Another, † which last case with the exception of the residuary clause, coincides with this case nearly in term. It is unnecessary to add any observation therefore, upon them and considering the meaning of the words.. all my estate in the language of Mr. Justice Buller in Holdfast v. Martin, so general that so far from its being necessary to add words of inherita ance to it, in order to make it pass a fee, words of restraint must be added in order to make it carry a less estate, the question turns solely on whether the words ‘lands, &c, called the Coal Yard,'&c. render it only descriptive of the locality. It is tantamount to all my estate in lands, &c. called,' &c. and between the words in this case, and in the case of Barry v. Edgeworth, g'all ber land and estate in Upper Catesby;? which were held to pass the fee, there is no material difference. If not, the words estate and lands, must be made to mean the same thing, as the word • lands' only in order to defeat the effect of the word estate,' whereas according to the construction for the defendant, all the words will bave their proper meaning. If not restrained by the words lands, &c. then the question is whether it is restrained by words' called and known,' &c.? But that is the same as if it were all niy estate in the lands

*3 Bos, and Pul. 335, and 8 Term Rep. 64. + 6 Mod. 106,

and i Salk, 236. I 1 Term Rep.411. $2 P. I'ms. 524,

« ForrigeFortsett »