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John is under no neceflity nor in any wife bound by the law of the land to anfwer; and this he is ready to verify: wherefore, for want of a fufficient plea in this behalf, he the faid John prays judgment and his damages by him fuftained on occafion of the not performing the faid feveral promifes and undertakings in the faid declaration mentioned to be adjudged to him, &c. and for caufes in demurrer in law in this behalf, according to the form of the ftatute in fuch cafe made and provided, he the faid John fets down and fhews to the court here the causes folSpecial caufe lowing (that is to fay) for that by the faid declaration it appears that the faid John hath brought his action against Harriot Ford, and no fuch perfon as Ann White is mentioned in the faid declaration, and yet the faid plea begins with these words, "And the faid Ann White," which is wholly repugnant to the faid declaration, and for that the faid piea is not any answer to the faid declaration, and is wholly uncertain, infufficient, dubious and informal, &c.

of demurrer.

Leave to amend.

Harley Vaughan.

The defendant joined in demurrer, which was argued in this term by Serjeant Davy for the plaintiff, who infifted that the plea was bad, both in form and fubflance; the plea begins, and the faid Ann White, who is not named in the declaration, fo the plea is no answer to it; who is fued by the name of Harriot Ford fpinfter, but the plea doth not fay by whom he was fued, the plea ought to have mentioned that he was fued by the plaintiff, and of that opinion was the court.

Walker Serjeant for the defendant, faid the plea was well enough, and that the words the faid were only furplufage, but the court thought otherwife, fo he moved for leave to amend the plea on payment of cofts, which was granted per curiam.

2 Black, Rep. Frogmorton on the demife of William Wright verfus Sarah Wright widow, and Sarah Kerfhaw widow.

889. S. C.

words in the

preamble of a will:

The following EJECTMENT for two meffuages, two cottages, two barns, two flables, three acres of land, two acres of meadow, and three acres of pafture, and common of pafture, with the "As touching appurtenances in Seacroft, in the parish of Whitchurch otherwife Whitkirk in the county of York; the defendants pleaded not guilty, whereupon iffue was joined, which came on to be tried. at the laft aflizes holden for the county of York before Mr. Juftice Gould, when it appeared in evidence as follows, viz.

all my temporal eftate

&c. I give and difpofe thereof as follows,"

will not alone

coufe a devise

That William Wright being feifed in fee of the premises in of houfes to queftion, being two houfes in Seacroft, and a Croft, with the ap

A. without

purtenances,

conftrued an

ing v.. Buckner, Term Rep. K. B. 610.

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alfo fee 5 T. R. K. B.

13.

purtenances, duly made his laft will and teftament in writing, further difpobearing date the 19th day of March 1728-9, in the words fol- fition of the lowing. In the name of God amen. I William Wright of Sea- fame, to be croft fenior husbandman, and in the parish of Whitkirk in the estate in feecounty of York, being in good and perfect mind and memory, fimple. See praise be therefore given to Almighty God, do make and ordain Doe v. Spear this my laft will and teftament in manner and form following, 6 that is to fay, Firft and principally I commend my foul into the hands of Almighty God, hoping through the merits, death and paffion of my Saviour Jefus Chrift, to have full and free pardon and forgivenefs of all my fins, and to inherit everlasting life; and my body I commit to the earth to be decently buried at the difcretion of my executor hereafter named. And as touching the difpofition of all my temporal estate as it hath pleafed Almighty God to bestow upon me, I give and difpofe thereof as followeth. Imprimis, firft of all, I will that my debts and funeral charges be paid and discharged. Item, I give unto Henry Wright and Nathan Wright my nephews, two houfes at Bank in Leeds, with a croft and appurtenances belonging to them, to be equally dealt between them; Item, I give unto William Wright my Nephew, two houfes at Seacroft, with a croft and appurtenances belonging to them, now in the occupation of John Carter and Elizabeth Thornton; Item, I give unto Ann Wright my niece the fum of twenty pounds, to be paid out of my copyhold eftate at Morwick; and item, I leave unto Dorothy Wright my niece twenty pounds to be paid out of the faid Mor wick land; Item, I give unto Thomas Smith my nephew the fum of ten fhillings; Item, I leave to Mary Smith daughter of Tha mas Smith ten fhillings; Item, I leave unto Thomas Smith junior ten fhillings; Item, I leave unto George Smith junior ten fillings; Item, I leave unto Sarah Smith the fum of ten fhillings; Item, I leave unto John Smith fon of Thomas Smith ten fhillings; Item, I leave unto William Smith fon of Thomas Smith ten fhillings; Item, I leave unto George Smith my nephew the fum of ten fhillings; Item, I leave unto John Smith fon of George Smith ten fhillings; Item, I leave unto Henry Wright my brother five fhillings in the year as long as he liveth, to be paid at two fet days in the year, that is, half a crown at the first half year after my death, and fo every half year fo long as he liveth; and it is my will further, that none of the houses and land named above to be entered to by the above-named Henry Wright, Nathan Wright, and William Wright until the deceafe of my executor; Item, I leave unto Nathan Wright my own brother to be full executor of all goods and chattels whatfoever, and to be full executor of this my laft will and teftament; and I do hereby revoke, difannul and make void all former wills and teftaments by me heretofore made.

That

That the faid teftator foon afterwards died feifed of the premifes, without altering or revoking his faid will.

That at the time of making the will he had two brothers, Henry and Nathan, and that Henry furvived the teftator about three years, and died without iffue.

That Nathan, at the time of making the will, had three fons, Henry his eldeft, Nathan the second, and William the youngest, all named in the will.

That Nathan the teftator's brother furvived the teftator about ten years, and upon the death of Nathan, between thirty and forty years ago, William his fon entered upon the premifes in queftion and held them till June laft, leaving by the defendant Sarah his widow a fon now an infant.

That Henry the eldeft fon of Nathan the brother died about a year ago, leaving William the leffor of the plaintiff his eldest fon and heir at law, and who is also heir at law to the teftator.

Whereupon a verdict was given for the plaintiff, fubject to the opinion of this court upon the following question, "Whether "the plaintiff is intitled to recover."

James Wallace for the plaintiff.
Thomas Walker for the defendant.

This cafe was argued at the bar in this term by Serjeant Barland for the plaintiff, and Serjeant Walker for the defendant.

Serjeant Burland-The question is, whether William Wright the youngest fon of Nathan Wright (the teftator's brother) the nephew of the teftator took an eftate in fee, or for life only, in the two houfes at Seacroft, with a croft with the appurtenances, being the premifes now in queftion, by the devife in the will; which runs thus, viz. "As touching the difpofition of all my "temporal eftate, I give and difpofe thereof as followeth, Im"primis, First of all, I will that my debts and funeral charges "be paid and difcharged; Item, I give unto Henry Wright "and Nathan Wright my nephews, two houfes at Bank in

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Leeds, with a croft and appurtenances belonging to them, "to be equally divided between them," then follows the devife whereupon the queftion arifes; "Item, I give unto William Wright my nephew two houfes at Seacroft with a croft and "appurtenances belonging to them, now in the occupation of John Carter and Elizabeth Thornton," then he gives several fmall legacies, and to his brother Henry five fhillings in the

46

year

year as long as he liveth; and then he goes on and fays,

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" And

it is my will that none of the houses and land named above "to be entered to by the above-named Henry Wright, Nathan Wright, and William Wright, [his three nephews] until the "decease of my executor; Item, I leave unto Nathan Wright my own brother to be full executor of all goods and chattels whatsoever, and to be full executor of this my last will and teflament.

66

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I am humbly to contend that William Wright the nephew of the teftator (and youngest fon of Nathan Wright the youngest brother and executor of the teftator) took an estate for life only, after the death of his father Nathan the executor, who took an eftate for life by neceffary implication in all the houses and lands.

I expect it will be argued on the other fide that by these words, viz. "As touching the difpofition of all my temporal eftate as it hath pleafed Almighty God to bestow on me, I difpofe thereof as followeth," that Wilham the nephew took a fee in the premifes in queftion, by the intention and meaning of the teftator.

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Lord Chief Justice-Then let us hear my Brother Walker.

Serjeant Walker-I humbly contend that William Wright the devifee of the premifes in queftion took an eftate in fee therein, by the intention of the teftator, taking his whole will together; thefe words all my temporal eftate as it hath pleafed God to bestow on me, carry all the real eftate in fee, and all the perfonal estate. So in Tanner and Wife, 3 P. Williams 295. The teftator's will in that cafe was in this manner; "In the name of God amen, "As to all my temporal eftate with which it hath pleafed God "to blefs me, I difpofe of the fame as follows: I will that my "debts be paid;" after, he difpofed of feveral pecuniary and other perfonal legacies, gave 4s. a week to a relation for her life, then came thefe words, "All the reft of my eftate, goods and chattels what foever, real and perfonal, I give to my be"loved wife, whom I make my executrix;" the teftator died poffeffed of leafes for years, and feifed of lands of inheritance in fee-fimple. And Lord Chancellor Talbot with great clearness decreed, that all the real estate did well pafs by the will to the teftator's wife and her heirs. He alfo cited Bowdler verfus Smith, Prec. in Canc' 264; Trott. verfus Vernon, ibm. 430. Beachcroft verfus Beachcroft, 2 Vern. 690. I devife all my land and eftate, carries a fee, thefe words carrying not only the land but also the teftator's intereft in the land. Salk. 236. the Duke of Bolton's cafe. Vol. III.

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To this, Serjeant Burtand was ready to have answered for the plaintiff, but was prevented by the Lord Chief Juftice, who faid there was no diffculty in the cafe; and after flating the cafe as above, gave his opinion for the plaintiff the heir at law to the following effect.

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Lord Chief Juftice De Grey-There is no cafe where the teftator makes ufe of thefe or the like words, "As touching the difpofition of all my temporal eftate, I give and difpofe thereof "as followeth," and immediately afterwards devifes his feveral eftates or his several lands to divers perfons, that ever was determined to carry a fee; "All my temporal eftate I give and difpofe "thereof as followeth," and then he defcribes the eftate or land, and gives to his nephews Henry and Nathan two houses and a croft at Bank in Leeds, and to his nephew William two houfes and a croft at Seacroft, which words are only defcriptive of the particular eftates or lands as to locality, not of the quantity of his estate in those lands, fo do not carry a fee.

It may feem probable that the teftator's intention was that his nephew William should have a fee, but it is a clear rule that there must be exprefs words, or a neceffary implication, to dif inherit the heir at law; neither of these appear in the prefent cafe, and therefore the legal operation of the words of the will must govern.

By the words all my eftate, he must be understood to mean the thing, viz. his lands, and not the quantity of eftate [a fee] which he had in thofe lands. There is a great difference between the defcription of the thing, eftate, or lands devifed, and the quantity of intereft or eftate in the thing estate or lands devised.

The word hereditaments may in a will be a fee; fo if I make one my heir; or the word reverfion may give a fee; but all implied devifes in fee are fubject to reftrictions; as, I "give all my eftate in fuch a place to A. B." or "I make fuch a one my heir for life," carry only an eftate for life. Some words, as, "I give all my tenements, lands, houfes, farms;" of themselves, never carry more than a defcription of the thing per fe. It is true where there's a purpose or intention joined to fuch words, as "I give my houfes to A. B. to pay my debts," thofe words carry a fee, fo a devife to fell, is a fee; or a devife of houses charged with debts which takes money out of the pocket of the devifee, is a fee. It does not appear in this cafe that the teftator has charged the lands in question with any debts; he defires his debts to be paid, but doth not fay out of what eftate; the cafe of Tanner verfus Wife, 3 Williams 295, is very different, and doth

not

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