But as this point had not been moved or debated at the bar, by any of the ferjeants, in either of the former arguments, the court was pleafed to order an ulterius concilium, to have this fingle point argued, if the plaintiff's council fhould fo think fit. Accordingly, it is now contended by my brother Sayer, that this is a vefted remainder in Elizabeth Browne, the leflor of the plaintiff, and not a contingent remainder; and in fupport of this Ire has cited the cafe of Dor on the demife of Barnard and Fenton verfus Reafon, Trin. 28 & 29 Geo. 2. B. R. which he relies upon as a cafe determined, in the very point now in debate before the court, and which is above ftated verbatim, as cited by iny brother Saver; but as I have a more accurate report of that cafe, which I received from my brother Jephson, who heard the argument and judgment given therein, and noted the fame with his own hand, I fhall cite it verbatim as I received it from him. 66 "In ejectment, the jury found a fpecial verdict, that E"ward Bowden, or Brogden, was feifed in fee of the premises in queftion; and by his will, dated the 30th day of June 1739, devifed as follows:-I give and devife all my melluages, &c. in Leeds, to my wife Elizabeth, for the term of her natural life, without impeachment of wafte; and after her deceafe, I give and devife the fame to Elizabeth Crofon my niece, for her natural life, without impeachment of wafte, and immediately after "her deceafe, I give and devife the fame into fuch iffue of the body of my faid niece as fhall be then living, and to the heirs of fuch iffue, (that is to fay) in cafe there thall be only fuch iffue one child, then I give the whole to that one child and it's heirs; and if there fhall be iffne two or more children, then to fuch iffue two or more children equally among them, fhare and "fhare alike; and the heirs and afligns of fuch two or more children, to take both freehold and inheritance as tenants in common, and not as joint-tenants.-And in cafe my faid niece fhall die without iffie of her body begotten, then living; or in "cafe all fuch iffite thaft die without iflute, fo that all and every "of the defcendants of her body thall be dead without iffue, "then, and not before, I give and devife all the aforefaid premifes unto my coufins Thomas Burnard and James Fenton [the leflor of the plaintiff] their heirs and affigns for ever, to take "both freehold and infieritance as tenants in common, and not as joint-tenants; upon condition nevertheless, that they, when they enter upon the 'premifes, pay zool. to Jennetta Parker, if the be then living, rool. of which to be paid by Thomas Barnard, and rool. to be paid by James Fenton. "That 66 That upon the 4th day of February 1744. the teftator died, whereupon his wife entered and died feifed on the 23d day of January 1750, whereupon Elizabeth Crofon entered under the "will, and being feifed of the premifes, on the 22d day of April 1751 intermarried with the defendant Reafon; and in Trinity term 24 & 25 Geo. 2. 1751, they fuffered a common recovery and declared the ufes thereof, to each of them for "their lives, with remainder to the defendant, and his heirs in fee. 66 Elizabeth (Crofon) the defendant's wife, died the 16th day "of October 1752, and never had any iffue of her body. 66 James Fenton leflor of the plaintiff is the devifee, and Thomas Barnard is the eldest fon and heir of the other devifee Thomas Barnard. "The question was, whether the plaintiff was intitled to recover the premises? and the whole court of B. R. were of opinion he was, and gave judgment for the plaintiff; and in giving their opinion the judges fpoke to the following effect; Ryder Chief Juftice-The queftion is, what remainder was "given to the leflors of the plaintiff by the will, and whether "the fame is ftill fubfifting, or determined by the limitations in the will, or by the common recovery. Several things " are very clear. 66 66 "1ft, There is no doubt but the eftate given to the niece. "was only for life, almoft every word of the devife proves it; it is an eftate for life in fo many words; after her death, the "iffue (which in a will, is a word that operates as effectually to "make an eftate-tail, as the words heirs of the body do in a deed) are to take as purchasers, for the devife is to the iffue of the body of the niece, and to the heirs of fuch iffue. 2dly, It is clear, that the remainder limited, next after the Co. Jac. 590. niece's eftate is contingent; the words, in cafe my niece die with. Palm. 131. "out iffue of her body then living, fhew that it must be con"tingent, it not appearing what child may be then living-The "child must take by purchase. 66 3dly, A recovery will bar a contingent remainder; any per fon feifed of a freehold may bar all contingent remainders by feoffment or common recovery, but not by a grant. But as this point had not been moved or debated at the bar, by any of the ferjeants, in either of the former arguments, the court was pleafed to order an ulterius concilium, to have this ingle point argued, if the plaintiff's council fhould fo think fit. Accordingly, it is now contended by my brother Sayer, that this is a vefted remainder in Elizabeth Browne, the leflor of the plaintiff, and not a contingent remainder; and in fupport of this fe has cited the cafe of Doe on the demife of Barnard and Fenton verfus Reafon, Trin. 28 & 29 Geo. 2. B. R. which he relies upon as a cafe determined, in the very point now in debate before the court, and which is above stated verbatim, as cited by 'my brother Saver; but as I have a more accurate report of that cafe, which I received from my brother Jephson, who heard the argument and judgment given therein, and noted the fame with his own hand, I fhall cite it verbatim as I received it from him. "In ejectment, the jury found a fpecial verdict, that E"ward Bowden, or Brogden, was feifed in fee of the premifes in queftion; and by his will, dated the 30th day of June 1739, devifed as follows:-I give and devife all my melluages, &c. in Leeds, to my wife Elizabeth, for the term of her natural life, without impeachment of wafte; and after her deceafe, I give * and devife the fame to Elizabeth Crofon my niece, for her natural life, without impeachment of wafte, and immediately after "her deceafe, I give and devife the fame tinto fuch iffue of the body of my faid niece as fhall be then living, and to the heirs of fuch iffue, (that is to fay) in cafe there thall be only fuch iffue one child, then I give the whole to that one child and it's heirs; and if there fhall be iffne two or more children, then to fuch "iffue two or more children equally among them, fhare and fhare alike; and the heirs and afligns of fuch two or more children, to take both freehold and inlreritance as tenants in common, and not as joint-tenants.-And in cafe my faid mete Shall die without iffite of her body begotten, then Irving; or in "cafe all fuch iffite thaft die without iffue, fo that all and every "of the defcendants of her body thall be dead without iffue, "then, and not before, I give and devife all the aforefaid pre mifes unto my coufins Thomas Burnard and James Fenton [the "leflor of the plaintiff] their heirs and affigns for ever, to take "both freehold and infieritance as tenants in common, and not as joint-tenants; upon condition neverthelefs, that they, when they enter upon the 'premifes, pay zool. to Jennetta Parker, if the be then living, rool. of which to be paid by Thomas "Barnard, and rool. to be paid by Fames Fenton. That "That upon the 4th day of February 1744. the teftator died, whereupon his wife entered and died feifed on the 23d day of January 1750, whereupon Elizabeth Crofon entered under the will, and being feifed of the premifes, on the 22d day of April 1751 intermarried with the defendant Reafon; and in Trinity term 24 & 25 Geo. 2. 1751, they fuffered a common recovery and declared the ufes thereof, to each of them for "their lives, with remainder to the defendant, and his heirs "in fee. 46 "Elizabeth (Crofon) the defendant's wife, died the 16th day "of October 1752, and never had any iffue of her body. "James Fenton leffor of the plaintiff is the devifee, and Thomas Barnard is the eldest fon and heir of the other devifee "Thomas Barnard. "The question was, whether the plaintiff was intitled to re"cover the premises? and the whole court of B. R. were of opinion he was, and gave judgment for the plaintiff; and in giving their opinion the judges fpoke to the following effect; 4 "Ryder Chief Juftice-The queftion is, what remainder was "given to the leffors of the plaintiff by the will, and whether "the fame is ftill fubfifting, or determined by the limitations "in the will, or by the common recovery. Several things 4 are very clear. "ift, There is no doubt but the eftate given to the niece. "was only for life, almost every word of the devife proves it; "it is an eftate for life in fo many words; after her death, the "iffue (which in a will, is a word that operates as effectually to "make an eftate-tail, as the words heirs of the body do in a deed) are to take as purchafers, for the devife is to the iffue of the body of the niece, and to the heirs of fuch iffue. "2dly, It is clear, that the remainder limited, next after the Co. Jac. 590. niece's eftate is contingent; the words, in cafe my niece die with- Palm. 131. out iffue of her body then living, thew that it must be con tingent, it not appearing what child may be then living-The child must take by purchase. 66 3dly, A recovery will bar a contingent remainder; any perfon feifed of a freehold may bar all contingent remainders by feoffment or common recovery, but not by a grant. "But it doth not follow from what I have faid, that the re "mainder limited to the leffors of the plaintiff, is a contingent "remainder. In marriage fettlements after the first remainders "to the first and other fons of the marriage, the next re"mainders to trustees to preferve the contingent remainders, are "vefted, as being limited to perfons in effe; for by the rule of law, the eftate fhall open and fhut again, and fo toties quoties, "to let in the intermediate remainders. 66 66 "The question then is, whether the limitation to the leffors "of the plaintiff, in this cafe, be a contingent remainder or "not? It is infifted on the part of the defendant, that the "eftate limited to the iffue of Elizabeth the niece, was a fee fimple; if that be fo, it puts an end to all the other remainders; "but we are all of opinion, that it was an eftate-tail, it being 66 an eftablished rule, that were an eftate is limited to one and "his heirs, it may be reftrained by fubfequent words. Here "the fubfequent words reftrain and confine the word heirs, to "heirs of his body, or iffue; fo a devife to A. for life, is an "eftate for life; but if thefe words are added, viz. And if A. "dies without iffue, then to B. then it becomes an estate-tail "in A. 66 "He concluded by faying, It is a known rule of law, that "where particular eftates of freehold are limited, with parti cular contingent remainders over to perfons not in being, and "then comes a remainder over in fee, to one in being, that is "a vefted remainder, (and cited Boreton verfus Nicols. Cro. "Car. 363.) until the intermediate remainders come in effe, and "then it opens to let them in; fo this remainder to the leffors "of the plaintiff is vefted, to take effect in poffeffion, on the "determination of the former eftates, and does not depend upon "the dying of Elizabeth the niece, having iffue at her death; for it vefts whether fhe has iffue or not. He faid, he did not "think the cafe of Loddington verfus Kyme was ever determined, although Ld. Raym. page 209. fays that it was. Upon the "whole he said, he was of opinion for the plaintiff. 66 "Denifon Juftice-It is admitted that Elizabeth the niece. "took an eftate for life; the queftion then is, whether the "limitation to the leffors of the plaintiff, is, or is not a re"mainder vested; it cannot be an executory devise, because there is a fufficient eftate of freehold to fupport a contingent "remainder. Purefoy verfus Rogers. 2 Saund. 380. Befides "it is upon too remote a contingency to be an executory de"vife; if it is a vefted remainder, the common recovery "could not bar it, but would give a right of entry for the forfeiture; if it is contingent, then it is barred. Is the li66 mitation 3 |