vote, is calculated to produce, not a real, but an ap- 1819. The KING against PLAYER. Rule absolute. GADD against BENNETT. RULE for judgment, as in case of a nonsuit. The venue being in London, the cause had been set down for the sittings in term, and made a remanet to the sittings after term, by consent, when the plaintiff withdrew the record. Reader, for the plaintiff, insisted that the cause having been once carried down to trial by the plaintiff, he had complied with the terms of the 14 G. 2. c. 17., Wednesday, Where a cause was set and made a re manet to the sittings after term by consent, the defendant may move for judgment, as in case the plaintiff' of a nonsuit, if afterwards withdraws the re so that the defendant could not move for judgment, as cord. Per Curiam. In those cases, the cause had been made a remanet at the assizes. At the sittings in Lon 3 A VOL. II. don 1819. GADD against BENNETT. don and Westminster, the cause being made a remanet, does not prevent the defendant from moving for judgment, as in case of a nonsuit. Campbell, for defendant. Rule discharged on peremptory undertaking. Thursday, June 17th. DOE, on the demise of BURDETT, against Wrighte. years was created by deed in 1717, and in 1735 was signed for the purpose of securing an an A term of 1000 EJECTMENT for a messuage and lands, situated at Fairstead, in the county of Essex. At the trial at the last assizes for that county, before Park J., it appeared, that Elizabeth Oglethorpe, being seised in fee of the premises, on the 30th of May, 1786, after chargafter that to at- ing her manor of Fairstead Hall, and her capital messuage, farm, and lands at Fairstead, with an annuity of 50%., devised as follows: "I give and devise the said nuity to A., and tend the in heritance. A. having died in 1741, and the estate having remained undisturbed in the hands of the owner of the inheritance and her devisee from 1735 to 1813, without any notice having been in the mean time taken of the term except that in 1801 the devisee, in whose possession the deeds creating and assigning it were found, covenanted to produce those deeds when called for: Held that under these circumstances the jury were warranted in an ejectment brought for the premises by the heir at law to presume a surrender of the term. A testatrix, after charging her estate with the payment of an annuity, devised the same to G. S., his heirs and assigns, for ever; but her wish and desire was, that G. S., in his lifetime, should convey the estate to some charitable uses, the choice of which was left entirely to his discretion; and, subject to this, G. S. was to enjoy the estate to his own use for his life: Held that this was a devise void by 9 G. 2. c. 56., by which act, the estate given, and not merely the trust, was made void; and that the legal estate, upon the death of the devisee for life, descended on the heir at law. By the codicils to the will, certain legacies were bequeathed, charged upon the estate, and a power was given to G. S. (who was also named executor) to cut down timber to pay them, and interest was directed to be paid by him to the legatees, after the expiration of two years: Held, that the personal charges could not raise by implication the express estate for life given to G. S. by the will into an estate in fee. manor, manor, capital messuage, farm, lands, and hereditaments in Fairstead aforesaid, unto Granville Sharp, his heirs and assigns; to hold unto the said Granville Sharp, his heirs and assigns, for ever. But my wish and desire is, that the said G. Sharp do, in his lifetime, by proper deeds, convey, settle, and assure the said manor, capital messuage, farm, lands, and hereditaments, to some charitable uses, (subject to the said annuity,) to take place at his decease, and not before. The particular uses to be limited I leave entirely to his discretion, having the fullest confidence, as well in his judgment of the choice of proper objects, as in his integrity in the disposal thereof, according to the wish by me expressed; but it is my intent and meaning, that the said G. Sharp shall enjoy the said estate, subject as aforesaid, to his own proper use and behoof, during his life." By a codicil, dated 23d February, 1787, reciting that there was a considerable quantity of timber on her estates at Cranham and Fairstead, in the county of Essex, which estates she had, by her will, devised to several persons therein named, she declared that it was her will, that the persons to whom she had respectively given the said estates, should take the same, subject to the payment of the legacies following; viz. her estate at Cranham, subject to the payment of 1000l. to the Marquis of Bellegarde, over and above all other legacies and bequests by her already given him; and her estate at Fairstead, subject to the payment of 10007. to Count Bethisy, a relation of her late husband, residing in France; and she thereby charged her said estates respectively with the payment of the respective sums; but as the persons to whom she had respectively given the said estates might raise the said sums by sale of timber, without otherwise incumbering the said estates, 3A 2 to 1819. DOE against WRIGHTE. 1819. DOE against WRIGHTE. to discharge the said legacies, she willed that the same should not be payable until the end of two years after her decease, and without interest during that time; and she appointed G. Sharp executor. By another codicil, dated 1st September, 1787, reciting, that by her will, dated 30th May, 1786, she had given to the Princess of Ligne, niece of her late husband, 5007.; and by the above written codicil, she had given to Count Bethisy 1000l., she thereby revoked the said legacies of 500l. to the said Princess of Ligne, and said legacy of 1000l. to said Count Bethisy; and she thereby willed and directed, that the said respective legacies should not be paid, but she willed and directed that the sum of 1000l. should be charged upon and paid out of the estate at Fairstead, at such time and in such manner as she had above directed, concerning the 10007. which she had given to the said Count Bethisy, unto the two youngest daughters of the Marquis of Bellegarde, in her said will and codicil named; and she willed, that after the end of two years after her decease, one moiety of the said 10007. should be paid each of the youngest daughters of the said Marquis, as they should respectively attain the age of twenty-one years, or be married. If one died before twenty-one, the survivor to take the whole. Until such age or marriage, interest at 3 per cent. to commence at the end of two years after her decease, to be paid by G. Sharp, towards their maintenance and education, and their receipts to be sufficient discharges. G. Sharp, after having enjoyed the estate from the period of the death of the testatrix, in 1787, died on the 13th of July, 1813, without having made any disposition of the estate to any charitable uses. Upon his decease, the defendant came into possession, claiming as heir at law to Mrs. Oglethorpe. It was, however, clearly proved at the trial, that the lessor of the plaintiff was the true heir at law of Mrs. Oglethorpe. It appeared also, that by a deed, dated 28th November, 1717, certain terms of 1000 years were created for the purpose of securing a mortgage of 800%. upon the premises. Sir Nathan Wright, in 1727, having purchased the fee of the property, there was, in the deed conveying it to him, an express declaration, that Elizabeth Palmer, to whom the terms were assigned by the deed. of 20th November, 1717, should stand possessed of the premises for the residue of the said term of 1000 years, subject to a redemption, on payment of 14007. and interest, by Sir Nathan Wright. On the 16th of January, 1735, by a deed between Elizabeth Wright, (afterwards Mrs. Oglethorpe,) of the first part; Oliver Martin and Thomas Russell, executors and residuary legatees of Elizabeth Palmer, of the second part; Alexander Prescott, of the third part; and Herbert Tryste, and dame Abigail, his wife, (widow of Sir N. Wright, and mother of Mrs. Oglethorpe,) of the fourth part; after reciting the creation of the terms, their assignment, and the declaration before mentioned in the deed of 1727, the executors, Martin and Russell, at the request of Tryste and his wife, assigned, and Elizabeth Wright ratified and confirmed, the premises to Mr. Alexander Prescott, for the residue of the term of 1000 years, in trust for securing an annuity of 451. to Tryste and his wife, and after that to attend and wait upon the freehold and inheritance, as they were conveyed by the deed of 1727. A deed was also produced, dated 26th August, 1801, between G. Sharp, 3 A 3 1819. DOE against WRIGHTE. |