1835. DAVIES Dem. LOWNDES Ten. Legacies to and to the to be paid with in twelve months, by the heir at law failing whom, by W. Lowndes. Probable conjecture not to prevail against a clear title. from the testator's paternal great-grandmother, whereas there are still existing heirs on the part of the paternal grandmother. Although the authorities upon this point are conflicting, yet the weight of them greatly preponder was anxious to make a gentleman abandon his own name, should not be equally anxious to make those assume that name under which he intended the representation of his family should continue. But, besides this, there is another circumstance in the will which the defendant's counsel contend (and, it seems to me, unanswerably) makes it still more clear that the testator, negatively, did not intend that the lessors of the plaintiff should be the representatives of his family in possession of his estate, managing that estate, and of course as heirs of that estate by the will executing his will with regard to that estate. To Elizabeth Wells and to the Franklyns there are two legacies given; those legacies are charged upon this estate. The mere circumstance of giving legacies charged upon an estate will not perhaps of itself be sufficient to shew that the legatees could not in any event take the estate out of which the legacies are to issue. But this is not all: the testator has proceeded to give several legacies, and directs that they shall be paid within twelve months, which is the usual time at which legacies are made payable; he directs that they shall be paid by his heir at law within a twelvemonth after his decease; but, if it should so happen that no heir at law should be found, he then appoints Mr. Lowndes his lawful heir, upon condition that he changes his name; and he gives him the estate charged with those legacies. It is clear, therefore, that the testator supposed a case in which Mr. Lowndes might be the person to pay the legacies to Wells and to the Franklyns. Now, that case could not by possibility exist, if Wells and the Franklyns were the persons to answer the description of his right and lawful heir; because they would take the estate; the estate would not come to Mr. Lowndes; and Mr. Lowndes therefore could never be in the situation which the testator has supposed to be a situation likely to happen within a short compass of time. From these circumstances, the counsel for the defendant contend (and their argument seems to me well-founded) that there is sufficient evidence to shew negatively that the heir could not be the lessors of the plaintiff. The other part of the argument seems to me to shew that the lessors of the plaintiff have not been successful to make out the point that they are the persons intended: the utmost of the argument would be probable conjecture, not very certain, and which, in such a case, ought not to prevail against a clear title. Mr. Lowndes's title is a clear one, unless another be found to bar it: therefore the court, upon the whole, are of opinion that judgment ought to be for the defendant. Judgment for the defendant. ates in favour of the right of the heir of the paternal grandmother, in preference to the claim of an heir on the part of the paternal great-grandmother: Mr. Justice Manwood (in Clere v. Brook, Plowd. 450), Sir Matthew Hale (History of the Common Law, 240, 244), Lord Bacon (Maxims of the Law, 37), and Lord Chief Baron Gilbert (Bac. Abr. Descent, B.), holding that the issue of the paternal grandmother's father shall inherit before the issue of the paternal grandmother's maternal grandfather; contrary to the opinion of Mr. Justice Blackstone-2 Bl. Comm. Book 2, Ch. 14. 1835. DAVIES Dem. LOWNDES Ten. Thirdly-That, as Elizabeth Davies was not of the Third point. blood of the Selbys, she was not the right and lawful heir the testator had in his contemplation, who alone could defeat the claim of William Lowndes; that the manifest and primary object of the testator was to preserve his name; that his intention clearly was that the heir at law spoken of by him must be of the name and blood of Selby, the will containing no direction for the heir at law to assume that name, but such direction being confined to William Lowndes; and that the testator's intention being clear to exclude from the title of his heir at law his relations on the part of his grandmother, of whose existence. he was cognisant (as was evidenced by his having given legacies to them), à fortiori he must have intended equally to exclude an heir on the part of his paternal greatgrandmother. In support of this position, the judgments of Lords Mansfield and Loughborough in the cases before referred to, were relied upon. Fourthly-That a fine which had been levied by the Fourth point. devisee, William Lowndes, in Trinity Term, 1780, operated as a complete bar to any subsequent claims in respect of the property-the possession of William Lowndes being then, by virtue of the decree of the 28th March, 1783, adverse. The will of Thomas James Selby having been produced, 1835. DAVIES Dem. LOWNDES Ten. Decree of 23 Final decree, 28 Mr. Appleyard, the attorney for the Lowndes family, proved that the tenant was the son and heir of the devisee mentioned in the will, who died in the year 1813. He produced the court rolls of the manor of Whaddon, whence it appeared that William Lowndes had been in possession from the year 1772 or 1773, holding courts in that name down to the 14th November, 1781; that, in November, 1783, a court was held by him in the name of William Lowndes Selby; and that, from that time until his decease, the courts had been held in the name of William Selby. But it did not appear that he had ever obtained an act of parliament or the king's license or signmanual for changing his name. A clerk of Mr. Appleyard then produced the proceedings in Chancery; consisting of (amongst other things) a decree dated the 23rd April, 1779, upon a bill filed in Easter Term, 1773, by Mrs. Hone, the executrix named in the will of the testator, against William Lowndes and the several persons who had then set up claims to the property, and also upon a bill filed in October, 1773, by Lowndes against Samuel Thorne, Margaret Wells, and all others who up to that time had made any claim to the estates. By this decree, the bills were ordered to be taken pro confesso against certain of the defendants who did not appear to be retained for twelve months-and that, in the meantime, the claimants under Margaret Wells should be at liberty to bring an action of ejectment to recover possession of the premises-See the report, ante, p. 81, n. By a final decree in these two causes, made on the 28th March, 1783, which operated upon all the claims then set up, the Lord Chancellor (amongst other things) declared the will of the testator well proved, and that the same ought to be established and the trusts thereof performed and carried into execution, and his lordship ordered that the same should be performed and carried into execution accordingly: And it was further ordered that what was then already reported due for principal and interest of the testator's debts and legacies, and the subsequent interest to be computed thereon (except the legacies of 1000l. each given to John Lord and Richard Filkes, his executors), should be raised by mortgage or sale of the testator's said estate subjected to the payment thereof by his will, or of a sufficient part thereof, with the approbation of the Master, and as he should direct; and that all proper parties should join in such mortgage or sale as the Master should direct: And it was further ordered that 22,6581. 18s., Bank Three per cent. Annuities, standing in the name of the accountant-general, in trust in the said causes, under the title of "Hone and Medcraft, and Lowndes and Wells," which had arisen from the rents and profits of the manor, park, tithes, and other estates at Whaddon, and were paid into the Bank by the said William Lowndes Selby, the receiver, should be transferred to the said William Lowndes Selby-the parties having agreed to settle the proportions thereof belonging to them respectively between themselves: And it was declared that the manor of Whaddon and Nash, and other the premises devised by the said will to William Lowndes Selby, were to be considered as belonging to the said William Lowndes Selby; and it was ordered that he should be let into the possession thereof, and that all the titledeeds and writings relating to the said estates should be also delivered to him: And it was further declared that the devises in the said testator's will of the several freehold and leasehold estates thereby given to charities were void devises, as being within the meaning of the 9 Geo. 2, c. 37; that such leasehold estates should fall into and constitute part of the general residue of the testator's personal estate; that the title-deeds and writings of the testator's estate lying in St. Clement's Churchyard in the county of Middlesex, and at Hertingfordbury in the county of Hertford, should be delivered to the defendant Sir Rowland 1835. DAVIES Dem. LOWNDES Ten. 1835. DAVIES Dem. LOWNDES Ten. On the trial of decrees in Chancery in causes between the tenant's fa Alston, who had recovered possession thereof; and that the title-deeds and writings of the estates purchased by the testator after the making of his will, should be delivered to the defendants Ellen Wells and Henrietta Franklyn and Elizabeth Franklyn, who had recovered the possession thereof. On the part of the demandants, Talfourd, Serjeant, and a writ of right, Sir W. Follett objected to the reception of the above decrees, on the ground that the demandants were not parties or privies to the proceedings, nor at all connected with or persons not con- claiming under any of the parties, but claiming by title paramount; and that the proceedings might have been altogether collusive, and had for the mere purpose of frustrating the present claim. ther and other nected with the demandants, and to which proceedings the latter were nei ther parties nor privies, were admitted for the purpose of shewing the character in which the ten The Attorney-General, contrà, submitted that the decrees in question were admissible, not as binding upon the demandants, but for the purpose of shewing in what chaant's father held racter and capacity William Lowndes was in possession of the property-viz. first, as receiver, and afterwards as the right owner, as devisee under the will of Thomas James Selby. the premises. Talfourd, Serjeant.—The evidence offered on the part of the tenant shews that William Lowndes, prior to the date of these decrees, held manor courts as lord in his own right. The tenant ought not to be permitted thus to give a character to that possession: the decrees shew him to have been in as receiver or trustee for the heir at law until he should be found. TINDAL, C. J.-I think there can be no valid objection to the admissibility of these decrees, if insisted upon; though I must confess I do not see the value of the evidence when admitted. They are not binding upon the |