« ForrigeFortsett »
1806. called the Coal Yard,' and passes the fee, and this Roe aera. is going no further than where the devise was ' all Child mv estate ;n Kirbu Hal/,' on which Lord Hard
versus" j •
Wuioht] wicke observed that it passed not only the land, but the interest in it besides, for though here is a locality, Kirby Hall, yet the testator meant the in-, terest in it too; for suppose, and 1 believe it has happened, that a man were to devise all his real estate in Engla/id,here is a locality, and yet none will say that the interest does not pass as well as the estate. And if the locality applied to Kirby Hall, yet in Goodwyn v. Good&yn,* Lord Hardwicke said, that a devise of all the testator's estate in A. would carry a fee. And in this sense, giving effect to all the words this may be understood; and we shall be effectuating the intent of the testator, who probably meant in this case as testa-r tors usually do, to give an estate in fee, where the devise is general and without words of limitation."
Judgment for the Defendant.
Doe on the demise of Everett, and others against
A. devised a term to C. for life, and, after his decease, to his child o r Condition. children, and their exccutors,S$c. but upon condition that, in case he should die an infant unmarried and without issue, then the devise should go over to D. fyc. C. survived 21, married and died without issue; held, that the condition must be read as entire, and the devise over to D. was void. , ,
Doe dem. 'T'HISwas an ejectment for lands in the parish of Evuiett Butlcv'h'm the county of Somerset, on the several
Cooke. demises of W. Everett, Mary Mean, and Jane Cooke, all laid on 10th of April, 1303. The defendants, John Cooke and Stephen Cooms,i\n<\ Rebecca his wife, pleaded not guilty. The cause was tried before the honourable Mr. Baron Giaham, at the summer assizes at
Bridgwater, 1805, when a verdict was found for the 18l)6plaintiff's, damages one shilling, costs forty shillings, Doe dem. subject to the opinion of the court upon the following E*""T case:—Thomas Browning being possessed of a leasehold interest in the premises in question, for A long term of years, slili unexpired,on the l?th of January, I7G0, made his will, and thereby amongst other things devised the premises in question, as follows, " also [ give, devise, and bequeath the use and occupation of a dwelling-house and out-houses, lying in Butleigh aforesaid, with a close of pasture ground to the said dwelling-house adjoining and belonging, called Kel~ ways, with the rents, issues, and profits thereof, to Thomas Cooke, son of William Cooke, of Butleigh, aforesaid, husbandmarj, by E/iz. his late wife, deceased, to hold to him the said Thomas Cooke and his assigns, (from and immediately after the death of the said Susannah Keljsay, widow, or the day of her marriage again to any other husband, which shall first happen) for and during the term of his natural life; and, after his decease, I give and devise the same to the child or children of the said T. Cooke to be begotten by him on the body of any woman or women that he shall hereafter intermarry with, his, her, and their executors,and administrators, and assigns for ever. But my will is upon this further condition, that in case the said Thomas Cooke shall die an infant, unmarried, and without issue, then I do hereby give, devise, and bequeath the said dwelling-house, outhouses and close of pasture thereunto adjoining, with the appurtenances unto the said William Cooke, and his three children by the said Eliz. Cooke, his late wife, deceased, share and share alike, (as tenants in common, and not as joint-tenants, his her and their heirs, executors, administrators, and assigns, for ever." Thomas Browning died shortly after, not having revoked or altered his will. Susannah Kelway mentioned in the will, died soon after the testator. Thomas Cooke entered on the premises in
]806- question, and afterwards married Jane But/afield one
William Cooke named in the will, the father of
Pell, for the plaintiff". "The question is, whether
others changed; as and must be read or. Thus in 1806. Barker v. Suretees,* where there was a devise to one DoK d in fee, but in case he dies before he attains the age of Evbbbtt
~ . . 1 • 1 . 1 versus
21 years or marriage, and without issue, then to go poon. over, it was held that the attaining 21 was a performance of the condition, and that upon the authority of Price v. Hunt,f where or was construed conjunctively, it might be read, as if it were ' and if he dies before 21 unmarried, and without issue:" which he did not do, for one of the circumstances failed. And in Framlingham v. Branddevise 'to R. and his heirs, and in case he shall happen to die in his minority and unmarried, or without issue, then over,'it was held that the estate was to go over upon one contingency, the dying under age of which the other two contingencies were only a qualification. If it were not so, there would be nothing to qualify the contingency, 'if he dies without issue/ and it would mean a dying without issue generally: but, by making it a qualification of the first contingency, it reduces it to a certainty, that by the word ' issue' is meant issue of the body, a dying without issue within the rules of law and which creates an estate-tail. Bigge v. Bensley,§ Forth v. Chapman,\\ Target v. Gaunt."^
Lord Ellenborough, C. J. "There you read the words if he shall die an infant unmarried and without issue, as if it were, if he shall die an unmarried infant and without issue."
And Porter v. Bradley,** being cited by Pell,
Lawrence, J. said "Lord Kenyan must have been misunderstood, if he is supposed to have said that Forth v. Chapman was not law."
1806. Dam Pier, contra. "The word issue, though it be Hon dcm a word or" indefinite extent, cannot prejudice the conE»».nETT dition, because the issue would have taken under the Co«r. nrst devise, and it must clearly be confined to issue at the time of his decease. In all the cases where or is read and there has been a devise to the first laker in fee, and the words were intended to give a limitation to that devise, and to destroy the estate devised by the former words. In this case W. Cooke had four • children, all of whom were infants, namely, Thomas Cooke and three others. He devises to Thomas Cookt for life, with remainder over to his children, and then devises to the three other children, and to IV. Cooke, and it is clear that he did not mean that this estate should sink into the residue while there were any children remaining of W.Cooke. For he has not given an absolute estate to 2'. Cooke, but only an estate for life, and then if this sinks into the residue, if he dies without children of his body, it must sink, although there are children of W. Cooke living, who it was clearly intended by the testator, should take in case of Thomas Cooke's death without issue. The construction which the plaintiff contends for strikes out the words unmarried and without issue from the condition, at least it strikes out the words without issue; for he could have no issue unless he was married. But it will be altogether sensible and pertinent if it be read thus,' in case Thomas Cooke dies an in* fant, or dies unmarried, or, being married, dies without issue, then to go overto W. Cooke. A similar construction was had in Goshawke v. Chiggell,* where one devised a term to H. his daughter habendum to himself and wife for their lives, and after their decease to the said H. and if she hath heir of her body, then to her assigns; provided that if she died unmarried having
* Cro. Car. 154, Sir W. Jones, 305.