exceptions which had been taken by the defendants to the master's report, which found that the plaintiffs could make a good title to the lands agreed to be purchased, being the lands in question in the cause. Upon hearing the said petition, his lordship directed that the opinion of the judges of this court should be taken on the following case: William Henry Whorwood, being seised in fee of several closes of land in Headington and Marston, in the county of Oxford, including the lands comprised in the agreement for purchase, made his will, dated the 9th of November 1834, in the following terms: "I, William Henry Whorwood, of Portswood, in the county of Southampton, a captain in His Majesty's navy, being in enjoyment of perfect health, and of sound mind, memory, and understanding, thanks to Almighty God for the same, do make this my last will and testament in manner and form following; that is to say, first, I give, devise, and bequeath unto my adopted child, Mary Whard Miles, the whole of my property, situated in the village of Portswood in the parish of South Stoneham, in the county of Hants, with the furniture, horses and carriages, and all other effects whatsoever, in and about the said premises; and also 4000l. and upwards, which becomes mine at the decease of Mrs. Grace Horton, my late brother's wife, which aforesaid 40007. and upwards is one half of a sum left by my late brother to her, and at her decease to be equally divided between my present brother Thomas Henry Whorwood and myself; and also my farm called Southfield, containing 202 acres, situated in the parish of Headington in the county of Oxford. I also bequeath to my faithful servant, Charlotte Webb, all my plate, linen, and wines, also my wearing apparel and ready money. I leave to my nephew, William Henry Whorwood, all my other lands, situated in the parishes of Headington and Marṣ 1841. PEPPERCORN V. PEACOCK. 1841. PEPPERCORN บ. PEACOCK. ton, subject to the yearly payment of 150l., to be paid quarterly, to my faithful servant Charlotte Webb, without any deductions whatsoever, commencing from my decease; should it not be regularly paid, the said Charlotte Webb may distrain; and should Mary Whard Miles have lawful issue, the said property to be equally divided between her lawful issue; and should she not have lawful issue, it is my desire that Southfield farm, in the parish of Headington, in the county of Oxford, should become the property of my nephew William Henry Whorwood. I also give to my faithful servant George Wakefield, the sum of 50l. a year of lawful money, without any ductions whatsoever, during his natural life; and also my funeral expenses to be paid by Mary Whard Miles. I also bequeath, at my decease, to my friends, Captain Alexander Barclay Branch, Royal Navy, and Mr. William Savours, of Headington in the county of Oxford, 2001. each, to be paid out of the property of Mary Whard Miles. And I do hereby nominate, constitute, and appoint Alexander Barclay Branch, Captain in His Majesty's Navy, and William Savours, Esq., of Headington, in the county of Oxford, joint executors of this my will, and hereby declare this only to be my last will and testament. In witness, &c." Signed and published in the presence of, and attested by, three witnesses. Proved, in the prerogative court of Canterbury, on the 21st of October 1836. The testator left a nephew of the name of Thomas Henry Whorwood, his heir at law, and who is still living. Mary Whard Miles, in his will named, survived him, and is unmarried; and his nephew, William Henry Whorwood, in his will named, also survived him, and is still living. The lands agreed to be purchased, form part of those included in the devise of all the testator's "other lands in Headington and Marston;" and the particular interest contracted to be sold, is the reversion in fee of those lands expectant upon the decease of the person in the will named Charlotte Webb, who is still living. By indentures of lease and release, bearing date respectively the 2d and 3d of March 1838, the release being made between the said William Henry Whorwood, the nephew, of the first part, and the said Thomas Henry Whorwood, of the second part, and the plaintiffs William Peppercorn and Mary Whorwood, of the third part, after reciting the said will, and the death of the testator leaving the said Thomas Henry Whorwood his heir at law, and that the said Thomas Henry Whorwood, the nephew, and William Henry Whorwood were desirous of selling and disposing of the inheritance in fee of the messuages, lands, and hereditaments thereinafter described and intended to be thereby released, and for better enabling them to effect such sale, they had agreed and determined to convey and assure the said messuages, lands, and other hereditaments unto the plaintiffs as therein expressed, it was by the said indenture witnessed, that in pursuance of the said recited desire, and for the barring of all contingent remainders, if any, in the said hereditaments expressed or intended to be thereby released, and for the other considerations therein mentioned, they, the said Thomas Henry Whorwood and William Henry Whorwood the nephew, and each of them, did release and confirm unto the plaintiffs certain closes, pieces, or parcels of meadow or pasture land or ground situate in the parish of Headington, in the county of Oxford, therein more particularly described, and a certain piece or parcel of meadow or pasture land, situate in the parish of Marston, in the county of Oxford, therein more particularly described; (and which parcels comprised the lands and hereditaments in the agreement for sale to the defendant,) to hold, unto and to use of the plaintiffs their heirs and 1841. PEPPERCORN V. PEACOCK. 1841. assigns for ever, for certain purposes and upon certain conditions therein contained, with a power, also therein PEPPERCORN Contained, that the plaintiffs or the survivor of them, or PEACOCK. the heirs or assigns of such survivor, should, at such V. time or times as they or he should think proper, and without any further consent or concurrence of the said Thomas Henry Whorwood and William Henry Whorwood, or their respective heirs, absolutely sell and dispose of the said hereditaments and premises expressed or intended to be thereby released, in manner therein mentioned; and which power (if a good title could be made) enabled the plaintiffs to enter into the aforesaid agreement for sale to the defendant. The questions for the opinion of the court are: — First, whether the words "the said property" in the will of William Henry Whorwood the testator, in the pleadings named, comprised the lands in Headington and Marston, devised to William Henry Whorwood, the nephew. Secondly, what estate the said William Henry Whorwood, the nephew, took under the said testator's will, in the said lands in Headington and Marston. Thirdly, whether Mary Whard Miles in the testator's will named, did, or her issue, if any, will, take any, and, if any, what, estate in the lands described in the said will as "all my other lands situate in the parishes of Headington and Marston." Channell Serjt. (with whom was Tennant) for the plaintiffs. With respect to the first question, it is submitted that the words "the said property," do not refer to the lands devised to the testator's nephew, William Henry Whorwood, under the description of "all my other lands situate in the parishes of Headington and Marston." Those words clearly have relation only to the property in Portswood and to the Southfield farm, devised to Mary Whard Miles in the early part of the will. That this is so, appears from the testator proceeding to devise the Southfield farm to his nephew, in the event of Mary Whard Miles not having lawful issue. If the plaintiffs are right upon the first question, the second becomes immaterial. It is contended, however, that William Henry Whorwood, the nephew, took only an estate for life in the lands described by the testator, as "all other my lands situated in the parishes of Headington and Marston." It will be argued on the part of the defendant, that the nephew took the fee by reason of his being charged with the annuity bequeathed to Charlotte Webb. It is quite clear, that where an estate is devised without words of limitation, subject to a personal charge on the devisee, he takes the fee by implication; but that it is otherwise where the charge is upon the estate. The question here is, within which class of cases the present ranges itself. In Doe d. Palmer v. Richard(a), which will be relied on by the other side, the devise was as follows:-"All the rest, residue, and remainder of my messuages, lands, tenements, hereditaments, goods, chattels, and personal estate whatsoever, my legacies and funeral expenses being thereout paid, I give, devise, and bequeath unto my said sister Jane Dewdney; and do hereby constitute and appoint her whole and sole executrix, and residuary legatee, of this my will." Lord Kenyon held that the devisee took a fee; on the ground that if the devise did not comprise the whole of the devisor's estate, the interest as well as the land, the legacies and funeral expenses might not be paid. (b) The propriety of that decision was much questioned by Macdonald C. B. in delivering the opinion of the judges in the House of Lords in Moor v. Denn d. Mellor. (c) There, a testator, after giving a life estate (a) 3 T. R. 356. (c) 2 B. & P. 247., 7 Brown (b) Videantė, Vol. II. 17 (d). Parl, Cas. (2d edit.) 607, 1841. PEPPERCORN v. PEACOCK. |