mainder. This distinction is pointed out in Gilbert's Te- Reply. The distinction between the act of the particular tenant and the act of God, in destroying contingent remainders of copy holds, does not appear to be well founded. The principle upon which contingent remainders are protected is the same both in freehold and copyhold estates. With respect to the former, if a legal estate be given to trustees, the contingent remainder is not destroyed by any act which puts an end to the particular estate before the contingency happens, because the trustees having the legal estate it may wait in them, and there 1805. BROMFIELD v. CROWDER and Others. 1805. BROMFIELD V. CROWDER and Others, there is always a tenant to the præcipe. This was the clear opinion of Lord Talbot in Chapman v. Blissett, Cas. Temp. Talbot, 145. Now in the case of copyholds, there is no doubt that the whole freehold remains in the lord, the copyholders being mere tenants at will according to the custom; therefore if the lord mortgage his manor and afterwards purchase acopy hold, the copy hold is mortgaged as much as if the lord had purchased it before the mortgage. Doe, d. Gibbons v. Pott, Dougl, 710. Orif the lord devise his manor and afterwards purchase copyholds, they will pass, Cur, adv, vult. (a) The opinion of the Court was now pronounced by Sir JAMES MANSFIELD Ch. J. (who, after stating the will proceeded thus)-All the testator's real estate is given to the Plaintiff immediately on the death of the preceding devisees, if he live to attain 21; if he die before 21, and his brother Charles Bromfield survive, then the testator gives his real estate to the said Charles Bromfield, if he (a) The record of the case of Edwardsv. Hammond was searched for and producedby desireof the Court, from whichit appeared that the premises in question were customary lands held of the manor of South Burstead in Essex, in which there was a custom that the youngest son should inherit, and that the widow of the tenant in fee should have her free-bench; that John Hammond the elder surrendered the reversion of the premises in question, dependant on his mother's free-bench, to the use of himself for life, and after his decease to the use of John Hammond the younger (his eldest son,)“ and his heirs and assigns for ever, if it shall happen that the aforesaid John Hammond the younger shall live until the aforesaid John Hammond attain the age of twenty and one Dyears; provided always and under the condition nevertheless that if it shall happen that the aforesaid John Hammond the younger shall die before he attain the age of twenty and one years," then to remain to the use of John Hammond the elder and his heirs; that the mother died in the lifetime of the surrenderor; that the surrenderor died leaving issue the said John the younger, his eldest son, and Thomas his youngest son; that John Hammond the younger was admitted according to the surrender; that the Defendant, Ann Hammond, was the widow of the youngest son, who entered on the death of his father, and that John Hammond the youuger (the eldest son) being then fifteen, brought an ejectment against Ann Hammond, his brother's widow; that judgment was given for him upon special verdict in the Common Pleas, and afterwards a writ of error brought, live to attain 21, but not otherwise. If both die under 21, then he gives it to his godson John Vale in fee. The Plaintiff was under 21 at the time of the death of the' surviving devisee, and the question is, Whether he took any and what estate in the freehold or copy hold premises? There does not appear to us to be any distinction between the freehold and copyhold. In fact, this is an immediate devise to the Plaintiff, to take place on the death of the two preceding devisees. If so, we must either break in upon the terms of the will, or give them effect. In the latter case, there is an end of all argument about the word "if." There is nothing in the will to prove that the testator meant the Plaintiff not to take a vested estate unless he survived 21. Indeed the true sense of the thing is, that the devisor meant him to take it as an immediate devise in himself, but that it was to go over in the event of his dying under 21. It must be admitted, that according to repeated decisions, no precise words are necessary to constitute a condition precedent in wills. They must be construed according to the intention of the parties; and it would be absurd, considering the various circumstances under which wills are made, to require particular terms to express particular meanings. The apparent intention, as collected from the whole will, must always controul particular expressions. Now the fairest construction that can be put upon this will, independent of authority, is, that the Plaintiff took an immediate vested estate on the death of the preceding devisees, with a condition subsequent. With respect to the cases, that of Edwards v. Hammond is on all fours with the present. The circumstance of the devise over being to a stranger makes no difference; for it is clear that the testator meant no one to take his estate unless in the event of the Plaintiff dying under 21. Edwards v. Hammond is neither opposed nor weakened by any case. No doubt the general meaning of the word “if” implies a condition precedent, unless it be controlled by other words. But, in this case, 1805. BROMFIELD บ. CROWDER and Others. case, there is a variance between the expression and the meaning, and the case of Edwards v. Hammond sanctions us in giving effect to the latter. On these grounds, we are of opinion that the estate vested in the Plaintiff on the death of the preceding devisees; and the expression, all my estate, is so general as to pass an estate in fee. Besides, it would be an absurdity on the face of the will, to construe it only an estate for life. The following certificate was afterwards sent to the Master of the Rolls: This case has been argued before us by counsel, and we are of opinion that, in the events that have happened, the Plaintiff John Davenport Bromfield takes a vested estate in fee simple in the freehold and copyhold estates of the said John Davenport the testator, determinable upon the contingency of his dying under the age of 21 years. J. MANSFIELD. J. HEATH. G. ROOKE. A. CHAMBRE. July 2d. The Court will not set aside a verdict upon the affidavit of a juryman that it was decided by lot. TH OWEN and Another v. WARBURTON. HIS was an application for a new trial in this cause, which was tried at Chester, on the ground of misconduct in the jury. Two affidavits were produced in support of the motion; one by Ralph Bridge the foreman of the jury, and one by a person of the name of Chapman. The material facts sworn to by Bridge were, that the jury not being agreed left the Court and were put into a room by themselves; that four were disposed to find a verdict for the Defendant, and eight for the Plaintiffs; that one of those disposed to find for the Plaintiffs swore he would stay there till Saturday evening before he would find a verdict for the Defendant; that after some hours had elapsed in fruitless endeavours by Bridge to alter the opinions of those who inclined to a verdict for the Plaintiffs, it was proposed by several of the jury to draw lots, to which he Bridge was induced to assent; that accordingly two pencils were produced of different lengths, and it was agreed that the longest pencil should be for the Plaintiff and the shortest for the Defendant; that Bridge held the pencils and another juryman drew, and that the longest pencil being drawn, the . jury went to the Chief Justice's lodgings and those of the jury who were for the Plaintiffs gave in the verdict for them. Chapman swore that he followed the jury when they went to the room, and stood at the outside of the door, where he heard the jurymen arguing very violently and disputing with each other; that after some time he heard a proposal made by some of the jury to draw lots whether the verdict should be given in favour of the Plaintiff or the Defendant; that they were quiet for some time, and then came out of the room and went to the Chief Justice's lodgings, after which he was told by several of the jurymen how the verdict was, and the mode in which it had been decided. Upon these affida.vits a rule nisi for a new trial was granted. Cockell Serjt. in the course of the last term shewed cause and relied on the case of Vaise v. Delaval, 1 Term Rep.11. where the Court of King's Bench under similar circumstances refused to receive the affidavits of jurymen, such conduct being a very high misdemeanor in them, and observed that in such cases the Court must receive their information from some other source. He also cited the case of Jackson v. Williamson and Others, 2 Term Rep. 281. where the Court of King's Bench refused to amend the postea upon the unanimous affidavit of the jury that the 307. damages given in by them and recorded as their verdict was in addition to a sum of 317. which had been proved to be the price actually received by the Defendants for 1805. OWEN and Another WARBURTON. |