in the usual and ordinary mode; the contest between the parties is, whether the officers of the parish shall be compelled to bury the body in an unusual and extraordinary manner. I am of opinion that that is a question proper for the decision of the ecclesiastical court and not of this Court. I need not say that in matters purely of ecclesiastical cognizance, this Court does not interfere, as for instance in the case cited from 5 T. R., the Court will not grant a mandamus to make a church-rate. I am therefore of opinion that this rule should be discharged with costs. BAYLEY J. I agree entirely with my Lord C. J. in the judgment which he has delivered. The object of this application is to compel a burial in a specific manner. It is not for this Court to say that there shall be a particular mode of burial, but that is a matter purely for the consideration of the ecclesiastical court. The HOLROYD J. I am also of the same opinion. matter in dispute is merely as to the mode of burial, and that I think is purely of ecclesiastical cognizance. In 3 Inst. 203. it is said, "that in every sepulchre, that hath a monument, two things are to be considered, viz. the monument and the sepulture or burial of the dead. The burial of the cadaver, (that is caro data vermibus,) is nullius in bonis, and belongs to ecclesiastical cognizance, but as to the monument, action is given (as hath been said), at the common law for defacing thereof." It seems to me that the mode of burial is as much a matter of ecclesiastical cognizance, as the prayers that are to be read, or the ceremonies that are to be used at 3 G 3 the 1819. The KING against COLERIDGE and others. 1819. The KING against COLERIDGE and others. the funeral. I therefore think that this rule should be discharged. BEST J. It seems to me that this a matter purely for the ecclesiastical court, and that of itself is a sufficient reason why this mandamus should not be granted. But considering this as an application to the discretion of the Court, I think that this mandamus ought not to go. The consequence of enforcing such a mode of burial would produce great public inconvenience. For it is evident that in a few years the church-yard would be filled, and a great additional expense cast upon the parish in providing other places for the burial of the parishioners. I think, therefore, that this Court should not interfere in the exercise of its discretion, to enforce a mode of burial calculated to produce such consequences. Rule discharged with costs. MEYRICK and Others against WHISHAW and 4. by marriage FRANCIS Whishaw being seized in fee of certain settlement, conveyed certain estates to trustees with remainder to his children of the mar estates by his marriage-settlement conveyed them to trustees to the use of himself for life, remainder to trustees to preserve contingent remainders; remainder for securing certain payments to his wife, and subject thereto, riage, share and share alike, as tenants in common; and for default of such issue and if any of such children, there being more than one, shall happen to die without issue before twenty-one, that in every such case, the share of such child, should go to the survivors, as tenants in common; and in case all such children should die without issue, then to the use of the settlor in fee. Held, that there were no cross-remainders between the children of the marriage, except in the case of a child having died without issue, and under twenty-one. And that one of the children having died without issue, but after twenty-one, that his share vested in the settlor, and not in the survivor. to to the use of all and every of the children of the said Whishaw on the body of his intended wife to be begotten, sons as well as daughters, and the heirs of their several respective body and bodies to be begotten equally, share and share alike, as tenants in common, and not as joint tenants, with remainder over, in the words following, "And for default of such issue, and if any of such children, there being more than one, shall happen to die without issue of his or their bodies or body, before he, she, or they shall attain the full age of twenty-one years, that then and in every such case, the part and share, parts and shares of every such child and children so dying, shall go and remain, and be to the survivors and survivor of such children, and the heirs of the bodies and body of such survivors and survivor as tenants in common, and not as joint tenants, and in case all such children should die without issue of his, her, or their body or bodies, then to the use of the said Francis Whishaw his heirs and assigns for ever." The marriage took effect, and the issue were two children, Luke and Mary Anne. Luke after attaining twenty-one years, died without issue, and in the life-time of his father. Mary Anne, who survived Luke, intermarried with William Meyrick, and also died in the life-time of her father, leaving the plaintiffs her only children. Francis Whishaw died in November 1816, and by a codicil to his will, after reciting that upon the death of his son Luke Whishaw without issue, after having obtained the age of twentyone years, he the said Francis Whishaw conceived himself to have become entitled to the reversion in fee simple of and in one moiety of the premises comprised in the said indentures of settlement, devised the said moiety 3G 4 1819. MEYRICK and others against WHISHAW and others. 1819. MEYRICK and others against WHISHAW and others. moiety to trustees, to certain uses therein mentioned, under which the several defendants were variously interested. The question, directed by the Vice Chancellor for the opinion of this Court, was, Whether under the limitations of the marriage-settlement the said Mary Anne Meyrick (the late mother of the plaintiffs) upon the death of the said Luke Whishaw took any and what estate in the moiety of the freehold premises comprised in the settlement to which the said Luke Whishaw, as the other of the two children of Francis Whishaw and Anne his wife, who attained the age of 21 years was entitled to at the time of his death, under the limitations of the same indentures. The case was argued at the sittings at Serjeants Inn before last Hilary Term, by Walton for the plaintiff. By this deed cross-remainders are created amongst the children of the marriage, in the event of any of them dying at any age without issue, and consequently Mary Anne Meyrick, upon the death of Luke Whishaw, took a fee-tail in his moiety of the premises. No precise form of words is necessary to create cross-remainders; it is sufficient if that intention appear on the face of the deed. Doe v. Wainewright (a). Here such an intention clearly appears, for by the express terms of the deed the ultimate remainder to the settlor was to take effect only in case all the children of the marriage should die without issue. By the construction to be contended for on the other side, if any of the children of the marriage die after the age of twenty-one years, with or without issue, the ul (a) 5 T R. 481. timate remainder is to take effect as to that child's The words "for deto any failure of such The preceding estates 1819. MEYRICK and others against WHISHAW and others. |