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sisters having previously died without lawful issue: whereby the reversion in fee became an estate in possession by failure of all the objects of the prior limitations. The landlords of the defendants are the heirs of Joshua Howell, and are also the heirs of the lunatic James Howell, and of all other children of Joshua Howell.
Joshua Howell left a will, bearing date 6th of February 1782, in which was contained the following devises and bequests:-“I give and devise unto my son John Francis Howell all manerial rights, and all messuages, lands, tenements, and hereditaments of which I am seised in fee simple, or of any estate of freehold or inheritance in the parish of Lansallos, in the county of Cornwall, to hold unto my said son J. F. Howell and his heirs and assigns for ever: also I give and devise unto my son David Howell, all other my manors, messuages, lands, tenements, and hereditaments whatsoever and wheresoever, of which I have power to dispose, to hold to my said son David Howell, and to his heirs and assigns for ever; I give and bequeath to my daughter Lucy Howell the sum of 3000l., to be paid her in one month after my decease, with interest from the day of my death; I give and bequeath to my daughter Thomasine Howell 15001., to be paid her in one month after my decease, with interest from the day of my death, I having, in some degree, provided for her. The above devises and bequests to my said sons and daughters I will and direct shall be in full of all claims they may have, or be entitled to, upon, or out of my estate, real and personal, under my marriage settlement, or otherwise. And whereas in and by the settlement made on my marriage with my present dear wife Dunnet, I have power to appoint the sum of 2000l. to and amongst my children as I should judge proper, I do hereby give my eldest son James the sum of five guineas, part thereof, in full of his share of the said sum of 20001., and of all claims he has, or can make, under
my marriage settlement or otherwise, save in regard to the real estates which are settled upon him, and over which I have no power. All the rest and residue of my estate and effects whatsoever and wheresoever, including the remainder of the said sum of 20001., I give to my said dear wife Dunnet ; and do appoint her sole executrix of this my will."
David Howell, the son of Joshua Howell, left a natural son David Howell, the lessor of the plaintiff, and a natural daughter, both of whom were acknowledged by their father and recognised by his family. David Howell, the son of Joshua, made a will, by which, after other bequests, he devised all the remainder of his property, real and personal, consisting of manors, lands, moneys, securities, and all other property and effects of what nature soever they might be, unto David Howell, the lessor of the plaintiff, and his heirs for ever, upon his attaining the full age of twenty-one years.
Joshua Howell died seised of real estate of inheritance, which passed to his son David Howell, under the general devise to him, other than the reversion in fee of the settled estate.
The indentures of 11th and 12th of March 1740 were produced from the custody of the lessor of the plaintiff. It was objected that these ought to have been in the custody of the trustee of that settlement, or their representative. But the objection was overruled by the learned judge. (a)
A question arose as to the identity of the property occupied by the defendants, with that described in the settlement of 1740; the estates occupied by the defendants being now known by name different from those mentioned in the settlement, and there being other lands in the parish known by the name under the settlement.
(a) 12 Vin. Abr., Evidence (A. b. 5.); Bull. N. P. 255.
It was shewn that the names of farms in Wales are 1840. generally descriptive, and that the description was applicable to the lands sought to be recovered, and the
HOWELL counsel for the plaintiff undertook to prove that rent had been paid for the lands claimed to the parties suc- Thomas. cessively entitled under the settlement.
John James, one of the heirs of law of Joshua Howell, and of his children, and one of the landlords of the defendants, who had been committee of James Howell the lunatic, was called as a witness for the plaintiff. It was objected that he was one of the real defendants in the action. This objection was overruled, and the witness was examined.
John Griffiths, one of the defendants on the record, was called as a witness for the plaintiff; but being objected to, was rejected by the learned judge. (a)
For the plaintiff, the commission of lunacy against James Howell, and the proceedings under it, were tendered in evidence. It was objected, that neither the defendants nor their present landlords were parties to these proceedings. It was answered, that the defendants had held under, and paid rent to, the lunatic, and were bound by any thing which affected the title of their landlord. This evidence the learned judge rejected.
James Good, a land surveyor, who had been employed upon the property by George James, produced a map of the lands occupied by the defendants, which he had. made by the direction of G. James, who stated that he was acting as agent for Mrs. Howell. It was objected that what G. James had said was not admissible in evidence. This objection was overruled. It was also objected that the map could not be received in evidence. The learned judge did not expressly decide upon the ad
missibility of the map, but it was not handed to the jury.
The identity of the lands in the county of Carmarthen, described in the settlement, with those occupied by the defendants in that county, was admitted; but it was contended by E. V. Williams, for the defendants, that there was no sufficient evidence to identify the lands in Pembrokeshire. The learned judge said that he should reserve the point of law, arising upon the construction of the will of Joshua Howell, for the consideration of the Court; but that the simple question for the jury was, whether the lands for which the ejectment was brought were the same as those named in the settlement. The jury returned a verdict for the plaintiff.
Nov. 1. 1839. In Michaelmas term following, Wilde Serjt. obtained
a rule calling upon the plaintiff to shew cause why a verdict should not be entered for the defendants, or why a nonsuit should not be entered, or why there should not be a new trial. As the rule was originally moved for and granted, it went on to order that “ as well all the facts relating to the new trial, as the matter of law arising in this case, be stated in a special case to be argued by counsel on both sides, and that the rule be enlarged until after the argument.” On the last day of Michaelmas term the latter part of the rule was struck out on the motion of Mr. Evans, for the plaintiff.
Jan. 11. 1840.
After the note of Gurney B. had been read by Maule J., the Court directed that the point of law, upon the will, should be first argued.
Talfourd Serjt. now shewed cause. The enjoyment of the property by Joshua Howell the settlor and devisor, and, upon his death, by his widow, and afterwards 1840. by the lunatic son, was established to the satisfaction of
Doe dem. the jury. It was not disputed that the reversion was a
HOWELL devisable interest in Joshua Howell, or that it came within the words in the will “ of which I have power
I hove nower THOMAS. to dispose.” It was not necessary that the testator should have the reversion present in his mind. It is sufficient if he intended to give all properties which he possessed, and which came within the limits of the description. The subsequent clause, in which he uses the expression “over which I have no power," when rightly considered, confirms this view of the intention of the testator. The leading case upon the subject is that of Chester v. Chester. (a) There the devise was, “ of all the testator's lands, tenements, and hereditaments, in these three towns of Littleton, Marston, and Milbrooke, or elsewhere, not by him formerly settled, or thereby by him otherwise disposed of,” to trustees for the term of 100 years, “ remainder to his , said younger son, John Chester, in fee.” It was held, that the reversion in fee of the settled lands passed to John Chester, the son, by the devise, though the testator had other lands in possession which passed under the devise. In Cooke v. Gerrard (6), the testator, having settled part of his estate upon his daughter for life, devised a messuage to her for a year after his death ; and by the same will devised to T. K. all his lands not settled or devised, habendum after one year after his death, and after the death of his daughter. It was there admitted, that the reversion of the settled portion of the estate 'passed by the estate; and the only contest was, whether the interest which T. K. took in the house was postponed till after the death of the daughter. In Morgan dem. Surman v. Sur