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HENLEY, Lord Keeper, after having taken time to this day, gave his opinion, That the eldest son took by devise, as having under the will a different estate than would have descended to him, the one being pure and absolute, the other not.1

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ACTION of debt on the bond of the father, to whom the defendant is heir. Plea, Riens per descent. The fact was, that the father had devised his lands to the defendant charged with debts. Qu. If this makes him a purchaser? For plaintiff: held, Hob. 30, that it will not make the heir a purchaser. But if the tenure or quality of the estate were altered, it had been otherwise: Dyer 124; Styl. 148; Hedger and Row, 3 Lev. 127, a devise to heir ex parte materna of no effect. Moor 644; Cro. Eliz. 919; Lutw. 797; Salk. 241. For defendant were cited Cro. Car. 161; 2 Mod. 286, Brittam and Charnock.

PER TOTAM CURIAM. If the tenure or quality of the estate be altered, the heir is a purchaser; but a charge on the estate does not alter the manner of the heir's taking the land. A devise is void, where it gives the same as would be taken by descent; 1 Ld. Raym. 728. Judgment for the plaintiff.

HURST v. WINCHELSEA.

KING'S BENCH. 1759.

[Reported 1 W. Bl. 187.]

THIS was a case stated from Chancery for the opinion of the Court of King's Bench, and appeared to be this,-Thomas Herbert, by will duly executed, devised to his wife Elizabeth all his lands, &c. in feesimple. Elizabeth (on his death) married a second husband; but, previous to such second marriage, settled the said estates to use of herself for life; then to Thomas Herbert, her own son by the first marriage, for his life, and so on to his issue in strict settlement; then in remainder to such person or persons as she should by deed or will, notwithstanding any coverture, appoint [and in default of such

1 s. c. 1 Eden, 458. See Serjeant Hill's MS. note quoted in note to this case in Blunt's edition of Ambler. The learned serjeant says: "The determination in this case is right; but the reason given for it is wrong." - ED.

appointment, to the said Elizabeth, her heirs and assigns].

After

the second marriage she made a will, wherein she devised all her estate to said Thomas Herbert (charged with several pecuniary legacies), and died, living her second husband. Afterwards, Thomas Herbert died, sans issue and intestate. And the question was, Whether this estate should descend to his heir, ex parte paterna or materna? or whether the remainder in fee vested in him by descent from Elizabeth his mother, in which case it would go to the maternal heir; or whether it vested by the devise, operating as an appointment under the settlement, in which case, Thomas Herbert would be a purchaser, and the lands would descend to the paternal heir.

The COURT, after hearing two arguments, declared they should certify that it descended to the maternal heir of Thomas Herbert; it being a known rule, that a common devise in fee-simple to an heir-atlaw, gives him no estate at all, he being adjudged in by descent; and it having also been determined in the case of the Duke of Marlborough and Lord Godolphin, in Chancery, 2 Ves. S. 61, 73, that an appointment by will is subject to the same rules as a common devise.

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EJECTMENT: special case. Robert Everden, seised in fee of the lands in question and other lands, on the 14th of September, 1753, devised the lands in question "to his son, Henry Everden, and his wife, Elizabeth, for their joint lives, and the survivor of them; and, after the decease of the survivor, to their eldest son and his heirs forever; and, if they leave no male issue, to their daughters and their heirs forever. And if they die without issue, then he gave, bequeathed, and devised the same to his right heirs forever." Afterwards he devised to his son-in-law, Humphrey Davis (the lessor of the plaintiff), "All his estates, lands, tenements, and premises thereunto belonging, not thereinbefore devised, bequeathed, &c., to hold to him, his heirs, and assigns forever;" in trust to sell the same, and, after payment of so much of his debts, funeral expenses, and all other necessary expenses as his personal estate could not extend to pay, out of the produce thereof to pay certain specific and pecuniary legacies to his children; and to divide the residue equally among his three sons and five daughters. And then devises "all the residue and remainder of his estate, both real and personal, of what nature or kind soever, unto his son-inlaw, the said Humphrey Davis, his heirs, executors, administrators,

1 This is the correct form, as appears from Lord Kenyon's note of the case, 2 Kenyon, 444.

and assigns forever." The testator died on the 21st of February, 1754, leaving Henry, his eldest son and heir, two other sons, and five daughters. Henry (who survived his wife, Elizabeth) died on the 17th of September, 1769, and never had any issue. Qu. Whether the said Humphrey Davis, under either of the clauses in this will, is entitled to recover?

Glyn, for the plaintiff.

Davy, for defendant.

DE GREY, C. J. There are some propositions clearly established, which will give light to this case. Personal estate, being of a fluctuating nature, must go to a residuary legatee in the same state as it happens to be at the death of the testator. Not so real estates, which are of a more permanent nature; for there only such will pass by a residuary devise as the testator really meant to devise at the time of making his will. Therefore, in the case of Doe and Underdown [Willes, 293], an estate that lapsed afterwards by the death of a devisee did not go to the devisee of the residuum. Again it is certain, that a reversionary interest, which the testator then has, will (if nothing be mentioned of it) pass by a residuary devise. And there may be cases where a reversion of an estate devised to a man's own heirs may pass to a residuary devisee under the general clause, and others where it will not. It is always a question of construction; and in Doe and Russel I think the court construed it right. No argument is to be drawn from the position of clauses in a will, but all are to be taken together. Neither is the present question upon the legal operation of a devise to a man's right heirs, but upon the testator's intention by such devise. It is said that the devise to the heir is nugatory, and must be rejected. But there is as much reason to reject the residuary devise as nugatory as the other. It is said that the devise of the reversion being a nullity, it falls into the residuum as being undevised. But it would rather fall under the second clause; for all undevised estates are subject to the trust, which this is not now contended to be. The whole is merely a question of intention, and you can never infer an intention from a sweeping residuary clause. The intention of the testator is clearly, that his heir at law should have the land, failing the issue of his body. As for authority: in Amesbury and Brown, 25th May, 1750; testatrix, having four sisters, devises particular estates to them, with remainder to her own right heirs. Afterwards, a general residuary clause to one of the sisters; and [she] had no other real estate. One of the particular estates determines. Lord Hardwicke held, that the reversion did not pass by this residuary clause, and that though the devise may not operate to make the heir take it by purchase, yet it is in the nature of an exception out of the residuary clause. This case was recognized and approved by Lord Northington in Robinson and Knight, 12th July, 1762, 2 Eden, 155, which was also a case of a residuary devise, and determined upon intention merely. I am therefore of opinion with the defendant.

GOULD, J., of the same opinion.

BLACKSTONE, J., of the same opinion. Here are three dispositions. The first clause devises specific lands to his son and daughter in tail, with remainder to his own right heirs. The second devises such estates in point of locality as he had not before devised, to Davis, to be sold for the benefit of his younger children. The estate in question cannot come under this description, for it is previously devised. The third clause devises such estates, as well in point of interest as locality, as he had not before devised, to Davis absolutely in fee. For residue and remainder are relative expressions, and must refer to what had been before devised. Whether the devise of the reversion to his right heirs could, in point of law, take effect or not, it is in fact devised; and by such devise de facto it is (as Lord Hardwicke expresses it) excepted out of the general residuary clause. The residuary devise would extend to any latent reversions he might have in him, but not to those which he has expressly disposed of otherwise, unless there be special circumstances, as in Doe and Russel.

NARES, J., having been of counsel in the cause, gave no opinion. Judgment for the defendant.1

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COVENANT for not repairing, on a lease for 21 years, which expired at Lady Day, 1807, made by the father of the plaintiff to the defendant. And the plaintiff declares, that his father was seised of part of the demised premises in fee, and of the residue, by copy of court-roll held of the manor of Tottenham in fee-simple, at the will of the lord, according to the custom of the manor; that he surrendered the copyhold part to the use of his will, and by his will devised the whole premises to his wife for life, provided she did not marry; and died seised, leaving his said wife, and the plaintiff, his only son and heir at law, him surviving; and that afterwards, and before the breach of covenant, the said wife died, and the said demised premises, with the appurtenances, descended to the plaintiff, as only son and heir at law of the lessor, whereby the plaintiff was, and continually hitherto hath been, and still is seised, &c.

Plea, that the demised premises, with the appurtenances, did not descend to the plaintiff as the only son and heir at law of the lessor, modo et forma.

On the trial, at the sittings after last Trinity Term, a verdict was found for the plaintiff, subject to the opinion of the court, on the ques

1 S. P. Doe d. Davis v. Saunders, Cowp. 420 (1776).

tion whether the plaintiff took by descent, or by devise under the will of his father, by which the father devised all his lands, as well freehold and leasehold, as copyhold, with their appurtenances, unto his wife for life, provided she did not marry, with power to grant building leases for 61 years, charged during that time with the payment of the yearly sum of £50 to his son, the plaintiff, if he should so long live, by four equal quarterly payments, and also finding him in board, washing, and lodging during his stay at the university, and during his studies in the profession of the law in London or otherwise, until such time as he should arrive to the age of 27 years; and also charged with the payment of the further yearly sum of £30, during his wife's life, unto his daughter Sarah, the wife of George Thompson, if she should so long live, and payable quarterly; and in case his said wife should marry, then and from the time of such marriage he devised all his said lands unto his said son, charged with the payment of the said yearly sum of £30 unto his daughter Sarah, in like manner as if his wife had not married; and also charged with the payment of the yearly sum of £100 to his wife during her life, payable quarterly; and from and after the decease of his said wife, he devised his said estates unto his said son, charged with the payment of the yearly sum of £100 unto his daughter Sarah during her life, payable quarterly. And upon the decease of the survivor of his wife and daughter he bequeathed the sum of £1500, to be equally divided between all the children of his said daughter then living, if more than one, and if there should be only one child, then the whole to go to such child; and in case she should not have any children or child living at the time of her decease, then he gave the said sum of £1500 to be disposed of by his said daughter in such manner as she should, by any deed or will attested by two witnesses, notwithstanding her present or any future coverture, appoint; and for want of such appointment the same to go to her executors and administrators. And it was his will that the said sum of £1500 should be paid within one year after the decease of his wife and daughter; and in default of payment, either of the yearly sum of £100 to his daughter in manner above mentioned, or of the sum of £1500, within the time above specified, he devised all his said lands, as well freehold and leasehold as copyhold, with the appurtenances, unto the said G. Thompson, his executors, administrators, and assigns, in trust, upon such default of payment, to raise and pay the said yearly sum of £100 out of the rents and profits, and the said sum of £1500 by sale or mortgage of a sufficient part of his said lands, and subject to the said several charges and trust he gave the said lands, after the decease of his wife, to his said son, his heirs, executors, administrators, and assigns. The testator's said daughter is still living.

If the court should be of opinion that the plaintiff took by descent, the verdict to stand; if not, a nonsuit to be entered.

Gaselee, for the plaintiff.

Marryat, contra.

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