1815. KINGDON against NOTTLE. damage in the lifetime of the testator, as was the case of Lucy v. Levington (a), otherwise it shall go to the heir or the assignee of the land; whence it may at first seem as if the devisee in this case, being assignee, ought to have the action. But if the breach be in the testator's lifetime, it is not capable of being assigned; the covenant indeed will pass with the land, but not the breach of it (b); and if the breach cannot be assigned, how shall the plaintiff as assignee maintain covenant? Now that the covenant was broken in the testator's lifetime is plain from Shep. Touch. 170., which says, "that if one doth covenant that he is lawfully seised in fee, or that he hath a good estate, &c. and he hath not, in this case the covenant is broken as soon as it is made." And though in King v. Jones (c) the heir was allowed to maintain covenant upon a breach incurred with the ancestor, yet that was because the heir represents the ancestor in respect of land, as the executor does in respect of personalty, and therefore what the ancestor might have the heir shall have: but that is different with the assignee. Besides, in that case the ultimate damage was sustained in the time of the heir, and was specially alleged, namely, that the heir was evicted : but here nothing is alleged for damage, which might not have been alleged in the testator's lifetime; therefore upon the second ground also the plaintiff is not entitled to maintain this action. Lord ELLENBOROUGH C. J. The rule with respect to the executor's right to sue upon breaches of contract made with the testator was considered in the former (a) 2 Lev. 26. 1 Ventr. 175. S. C. (b) Lewes v. Ridge, Cro. Car. 863. (c) 5 Taunt. 418. 1 Marsh. R. 107. S. C. case But case of Kingdon v. Nottle as subject to some qualifica- LE BLANC. J. If the covenant is to cease with the breach of it, then if it be broken, and the covenantee die immediately after, the covenant will be gone; and yet the injury arising from the breach would accrue altogether to the devisee. DAMPIER J. This is a covenant which runs with the land; but if it may be broken but once, and ceases eo instanti that it is broken, how can it be a covenant which runs with the land? Per Curiam, Judgment for the Plaintiff. Bayly was to have argued for the plaintiff. (a) Ante, vol, ii. 40 Chamberlain v. Williamson, 1815. KINGDON against NOTTLE. 1815. Friday, Devise, 1st, to my wife all my goods, &c. to her and her heirs, also three cow.commons to her and her heirs; 2dly, to my two ne phews all that piece of land called, &c., also to my nephews all that piece of land called, &c. as tenants in common, and to their several heirs and as signs for ever; 3dly, "I give to J. C. all that my house and premises at P. I ALSO give to J. C. all that my land in P. and R. to him, his heirs and assigns for ever:" Held that J. C. took a fee in the house and premises as well as in the land. FENNY, on the Demise of JOHN COLLINGS, against EWEStace. JOHN COLLYER being seised in fee, &c. by his will devised," FIRST, To his wife all his household goods, &c. to her and her heirs for ever; also he gave to his wife three cow-commons to her and her heirs for ever; 2dly, To his two nephews, John and Thomas Collings, all that piece of land called Priestlands, also he gave to his nephews J. and T. Collings, all that piece of land called Longland, to be equally divided between them as tenants in common, and to their several heirs and assigns for ever: "3dly, (he devised) I give unto my nephew John Collyer all that my house and premises at Pitston, in the occupation of R. Read; I ALSO give unto my nephew John Collyer all that my land in the parishes of Pidleston and Aubury, in the occupation of J. Tompkins, to him my said nephew John Collyer, his heirs and assigns for ever." 4thly, He gave to his brother F. Collyer one shilling a-week for his life, for the payment of which he charged the house and premises in the occupation of R. Read. And all the rest and residue of his real and personal estate he gave unto his nephew J. Collings and his nephew J. Collyer, to be divided equally between them, after paying his debts and funeral expences. And he appointed them joint executors. The testator died, and John Collyer, his nephew and also his heir-at-law, died. And upon a case reserved at the trial of this ejectment for the house and premises at Pitston, the question was, what estate J. Collyer took under the devise. If the Court should be of opinion that that he took only an estate for life, then judgment to be entered for the plaintiff for a moiety of the premises; if they should be of opinion that he took an estate in fee, then judgment to be entered for the defendant. Preston argued that he took but an estate for life. And that, he said, was the plain construction of the 3d clause of this will, which contained two separate and independent branches of devise; whence it followed that the words of inheritance in the last branch were to be confined to that branch, and not taken to enlarge the devise in the first branch. And there can be no reason for joining the two branches, because both are perfect and sensible in themselves; and the word also, with which the second branch is commenced, rather denotes a disjunctive than a copulative; or, according to the opinion of the Court in Spirt v. Bence (a), " it is no more than the word and, and shall not extend to the quantity of the estate, but to the clause following." And therefore where the devise ran thus: "Item, I give to my son H. my pastures, also I will that all bargains, &c. which I have from N. B. my son H. shall enjoy and his heirs for ever," &c.; it was held that H. should have but an estate for life in the pastures. So in Hopewell v. Acland (b), where the devise was, “Item, I devise my manor of B. to A. and his heirs. Item, I devise all my lands, tenements, and hereditaments to the said A.:" it was contended that the item conjoined the sentences, and carried on the testator's intent to give the like estate in the lands, tenements, and hereditaments, as was before expressed in the precedent 1815. FENNY against EWESTACE. 1815. FENNY against EWESTACE. sentence. But per Trevor C. J." Item is an usual word in a will to introduce new distinct matter; therefore a clause thus introduced is not influenced by, nor to influence, a precedent or subsequent sentence, unless it be of itself imperfect and insensible without reference; therefore not here, where both clauses are perfect and sensible." Which reasoning of Trevor C. J. is very material to the principal case, and may also serve as an answer to what fell from Lord Hardwicke in Cheeseman v. Partridge (a). So, in Doe v. Wright (b), a devise "to J. W. of all his lands, freehold, copyhold, and leasehold, in A.; also to J. W. of all his estate, freehold and copyhold, in B.;" was held to be a life-estate only in the lands in A., for that the two clauses could not be connected. Lord ELLENBOROUGH C. J. Undoubtedly if there be nothing in the context to connect the different clauses of a will together, they must be taken separately; but does not the arrangement in this will point out the connection which the testator intended; namely, a numerical order, connection, and division, between the several clauses of the will. In some of the clauses, he reserves the main sense in respect of the quantum of interest to the last; he says he gives such lands to the particular devisee, and also such lands, and then at the last he states what the quantum of interest is that he gives. This is a question for a grammarian rather than a lawyer, or which a schoolmaster might decide as well as a Judge. If it had not been for the numerical arrangement there might have been some difficulty, |