default of fuch iffue male, to the use of Lord "Brownlow 1809. DoE, Leffee of The Earl of LINDSAY, against COLYEAR. Denman, for the plaintiff, on the ground that there was no valid devife of the ultimate remainder to any person who was capable of taking it, under the description of right heir male of Peregrine Duke of Ancaster, contended that the reverfion neceffarily defcended to the leffor of the plaintiff, as heir at law of the teftator. The only perfons who could pretend to claim against the heir are Peregrine Duke of Ancafter, or fome of his male defcendants; but he and his fon Robert took estates of inheritance as purchasers under the will, which lapsed by their deaths before the teftator, according to Brett v. Rigden (a), Goodright v. Wright (b), and Hodgson v. Ambrofe (c). [Lord Ellenborough C. J. meritioned alfo White v. Warner, leffee of White, as a leading cafe which went to the Houfe of Lords (d), to the (b) 1 P. Wms 397 fame (c)* Dougl. 323. 337 (a) Plowd. 240. (4) This came on in B. R in Tr. 21 Geo. 3. upon a writ of error from Ireland, and was decided in M. 22 Geo. 3. Vide a fhort note of the point in Dougl. 344. n. 4. The following report of the arguments and judgment I had from Mr. Justice Buller; the statement of the cafe is abridged from the appeal papers of the House of Lords. HAMILTON WHITE against WARNER, Leffee of RICHARD WHITE. B. R. M. 22 Geo. 3. in Error from B. R. in Ireland, upon a special verdict. -The special verdict stated that Richard White, being feifed in fee of the manor of Bantry, and of certain lands in the barony of Beer and Bantry, by indentures of leafe and releafe of the 24th and 25th of September 1766, being the fettlement made on the marriage of his eldest fon Simon White, conveyed thefe lands, &c. to trustees and their heirs, as to part of them, to the ufe of Simon for life, remainder to his firft and other fons of the marriage in tail male, remainder to Simon in tail male; with remainder to Richard himself in fee: and as to other parts of the lands, to the ufe of Simon in tail male, with remainder to Richard himself in fee. White being fo feifed of thefe remainders, and being alfo feifed in fee of other lands, and having iffue the faid Simon, his eldest fon, and Hamilton Richard 1809. Doz, Leffee of the Earl of LINDSEY, againft COL YEAR. A devife of all the reft and refidue of the teftator's eftate in the manor and lands of Bantry, &c. not already settled on his eldest fon Simon's marriage, (except thofe parts of it before devised to his (fecond) fon Hamilton,) together with all remainders and reverfions of the faid lands fettled on the faid marriage, to his eldeft fon Simon and the heirs of his body; and for default of issue of Simon, then he devised his faid entire estate of Bantry to his fon Hamilton in tail, with remainders over; lapfes by the death of Simon in the lifetime of the teftator, and the refidus paffes to Hamilton immediately on the death of the teftator, though Simon left iffue. White 1809. DOE, Leffee of The Earl of LINDSEY, against COLYEAR. fame purpose.] Duke Peregrine took under the will ci ther a fee or an eftate tail. If the eftate had been limited to him and his heirs male by deed, he would have taken a fee, White, his fecond fon, (the defendant below,) and a daughter, Margarety by his will of the rft of January 1775, after fome pecuniary bequests, devised to his grandson Richard White (the leffor of the plaintiff below) and the heirs of his body certain lands; and if he fhould die without iffue before 21, then to his grandfon Simon White and the heirs of his body; with like remainders over to his grandfons Hamilton and Edward; with remainder to his own right heirs. He devifed other lands to his grandfon Hamilton White in tail, with like remainders over to his grandfon Edward, and to his own right heirs. He then devifed to his younger fon Hamilton White (the defendant below) and the heirs of his body certain other unfettled lands; and for default of iffue of his fon Hamilton, he devifed over the fame to his eldest fon Simon and the heirs of his body, remainder to his daughter Margaret for life, and after her decease to the heirs of her body; with remainder to his own right heirs. He devised other lands to his fon Hamilton for life, and 1000l. to be paid him by his executor Simon White. And then followed the devife immediately in queftion, by which he devised all the reft and refidue of his eftate in the manor and lands of Bantry, &c. not already fettled on his eldest son &mon's marriage, (except thofe parts before devifed to his fon Hamilton) together with all remainders and reverfions of the faid lands fettled on the faid marriage, to his eldest fon Simon White and the heirs of his body: and for default of fue of his fon Simon, then he devifed his faid entire fate of Bantry to his ad fon Hamilton and the heirs of his body; and for default of iffue of Hamilton, then he devised his faid entire cftate of Bantry to his daughter Margaret for life, and after her decease to the heirs of her body; remainder to his own right heirs. He then appointed his eldeft fon Simon White, his fole executor, and devifed to him all the refi due of his cftate, real, perfonal, and mixed, not before devifed, fubje& to his debts and legacies. The special verdict then ftated that Simon White, the fon, died on the 2d of September 1776, in the lifetime of the teftator, leaving iffue of the marriage Richard White, the leffor of the plaintiff, his eldest fon, and three other fons and four daughters, all infants. That the teftator, who had been a barrifter, knew of the death of his fon Siman, and died on the 27th of the fame September. On the testator's death the defendant, Hamilton a fee, by Lit. f. 31.; but according to Lord Coke's Comment, the law, in the cafe of a devife, will fupply the words "of the body," and give him an estate tail: and then according Hamilton White, his fon, took poffeffion of the lands devised to him, and of all the other estates of the teftator not comprised in the fettlement of the 24th and 25th of September 1766, claiming them under his father's will; being the lands in question, for which this eje&ment was brought. In Hilary term 1785 judgment was given for the leffer of the plaintiff; on which this writ of error was brought; and the cafe was argued in Trinity term 21 Geo. 3. by Davenport for the plaintiff in error, and Bower for the defendant; and again in M. 22 Geo, 3. by Wallace, Attorney-General, for the plaintiff, and J. Wiljen for the defendant. The queftion was, Whether by the death of Simon in the lifetime of his father, the teftator, the refiduary devife to Simon of the lands in Bantry were lapfed, and whether the remainder to Hamilton did then immediately take place? For the defendants in error they infifted on the intention of the teftator, and from the words "entire eftate," that the time at which the limitation to Hamilton fhould take place was not till the eftates in fettlement on Simon and his iffue fhould fall in, and the whole pafs to Hamilton. Holmes v. Meynel, T. Jones, 172. That there is a diftinction between the cafe where the first devifee in tail is heir at law to the teftator, and where he is a ftranger: a stranger can only claim under the will, and muft fhew his intereft exprefsly defcribed therein; but the heir looks not for what he takes by the will, but for what is not expressly given away. The prefumption is strongly in favour of the heir where he claims against a remainder-man. They denied that the heir at law was firft devifee in tail in any of the cafes where the remainder-man had taken immediately upon the lapfe. The cafe of Brett v. Rigden, Plow. 341. was a devife in fee; and if given to the heir would be without effect, as he would take by defcent. In Hartopp's cafe, Cro. Eliz. 243. it was only ruled that neither the daughter nor the pofthumous fon of the first devifee, who died before the teftatrix, fhould take: but the Court of Wards made no final determination ; but because the office was not fully found, they directed a melius inquirendum; which could only be to inquire, whe ther the first devifee were heir at law to the teftatrix; for it would have been abfurd to direct it, if in no event either could have taken. In VOL. XI. Fuller 18c9. DOE, The Earl of against COLYEAR. |