1833. MANBRIDGE v. PLUMMER. JOHN FRAIN, by his will, dated the 28th of November 1810, duly executed to pass freehold estates by devise, gave and devised all and every his freehold messuages, lands, tenements, and hereditaments, and real estate whatsoever and wheresover, unto his wife Elizabeth Frain for and during the term of her natural life; and from and immediately after her decease, he gave and devised all and every his said freehold lands, tenements, and real estates, with the appurtenances, unto his grand-daughter Elizabeth Horn, the only child of his the said testator's daughter Elizabeth Horn, deceased, late wife of Charles Horn, and to the heirs and assigns of his said grand-daughter Elizabeth Horn for ever: but, in case his said grand-daughter Elizabeth Horn should happen to die under the age of twenty-one years without issue, then over. Elizabeth The testator died in June 1815, leaving his wife Elizabeth Frain, and his grand-daughter Horn, his sole heir at law, surviving him. Elizabeth Frain, the widow, entered into possession of the lands, and died in December 1824. Elizabeth Horn attained her age of twenty-one years in 1823, intermarried with Charles Hatfield in 1829, and died without issue in June 1830. The Plaintiffs were the heirs of the testator John Frain, and also the heirs ex parte maternâ of Elizabeth Hatfield, and they claimed to be entitled to the lands in question by descent on the death of Elizabeth Hatfield, the person last seised, insisting that Elizabeth Hatfield took by descent, and not by purchase. The Defendants were the heirs ex parte paterná of Elizabeth Hatfield, 1833. MANBRIDGE v. PLUMMER. Hatfield, who claimed on the ground that Elizabeth Hatfield took by purchase under the will of her grandfather. The husband of Elizabeth Hatfield had forfeited his tenancy by the curtesy by a subsequent intermarriage, the lands being of gavelkind tenure. Mr. Pemberton and Mr. Cooke, for the Plaintiffs. The only point in this case is, whether the testator's grand-daughter took by descent or by purchase, and that point must now be considered as settled by the case of Doe dem. Pratt v. Timins. (a) The principle established by the cases is, that if a person is entitled to the same quality of estate in the two characters of heir and devisee, he will take by his preferable title of descent: Counden v. Clerke (b), Godolphin v. Abingdon. (c) It makes no difference whether the devise be subject to a previous estate for life, or be charged with the payment of debts or annuities (Chaplin v. Leroux (d)), or whether, as in the present case, there be an executory devise over. In Hainsworth v. Pretty (e), there was a devise to the eldest son in fee, upon condition that if he paid not certain specified legacies to the devisor's second son and daughter, the land should go to the second son and daughter, and their heirs. There the Court held, that the devise in fee to the heir, being no more than what the law gives, was void; and that the land descended until the condition became broken, when the limitation to the younger children took effect. So, in the present case, the land descended; and if the granddaughter had died under twenty-one without issue, the conditional limitation, or executory devise, would have taken effect. In Doe dem. Pratt v. Timins the devise (a) 1 B. & Ald. 530. (d) 5 Maule & Selw. 14. was (c) 2 Atk. 57. was to the heir at law in fee, with an executory devise over in case he did not attain the age of twenty-one; and the Court held that the quality of the estate which he would otherwise have taken as heir was not altered, and that he took therefore by descent and not by purchase. That case settled the point, and must decide the present question; the devise, in fact, being precisely the same in both cases. Mr. Bickersteth and Mr. Ellison, for the Defendants. There are conflicting decisions on this point, and the reasons given for these decisions cannot be easily reconciled. In Scott v. Scott (a), which is briefly reported in Ambler, and more fully and accurately by Lord Henley, where the devise was, as in the present case, to the testator's eldest son, and, in case he should die without issue before twenty-one, over, Lord Northington held that the eldest son took by purchase. It is true that the Court arrived at a different conclusion in Doe dem. Pratt v. Timins; but Scott v. Scott was not expressly over-ruled by that case, and the soundness of the decision in Doe dem. Pratt v. Timins has been questioned by eminent conveyancers. Mr. Pemberton in reply. The case of Scott v. Scott is not inconsistent with the law upon this point, as settled by Doe dem. Pratt v. Timins, for a reason which is given in the manuscript notes of Mr. Serjeant Hill (b), whose observation upon Scott v. Scott is as follows::- "The determination in this case is right, but the reason given for it is wrong." Mr. Serjeant Hill then examines the cases in Croke, Lord Raymond, Hobart, &c., and shews that Lord Northington (a) Amb. 383. 1 Ed. 459. (b) Ambl. 383. Blunt's edit. was 1833. MANBRIDGE v. PLUMMER. 1833. MANBRIDGE v. PLUMMER. was mistaken in supposing that, where an executory devise over followed a devise in fee to the heir, the heir took by purchase. But the question in Scott v. Scott was in reality a mere question as to the right of marshalling the assets, and that depended, not upon the estate which the heir took at law, which for that purpose was wholly immaterial, but upon the intention of the testator. The legatees claimed to have the assets marshalled as against the estate devised to the heir, on the ground that it was descended estate, as the heir took by his preferable title. To decide upon that claim, it was only necessary to inquire whether the will did not shew an equal intention, on the part of the testator, to benefit the heir and the legatees. If the will shewed that the heir and the legatees were equally objects of the testator's bounty, the legatees could have no right to marshal the assets, and it was wholly immaterial what might be the legal effect of the devise to the heir. To have decided otherwise than as Lord Northington decided in Scott v. Scott would have been to hold that the heir was placed in a worse situation by the devise, than he would have been had he not been the express object of the testator's favour. But the legal effect of such a devise, as is elaborately demonstrated by Serjeant Hill, was mistaken by Lord Northington. The MASTER of the ROLLS. It has always been the established doctrine, that a charge upon an estate devised to the heir does not break the descent; how, then, will a condition operate? The charge partially affects the devise, the condition wholly affects it; and it being determined that a charge, which carries off a part, does not break the descent, neither does a condition, which in a particular event would carry off the whole, break the descent. 1833. PLAYTERS v. ABBOTT. ROLLS. 1833. July 24. Where a tes tator provides fund for the a payment of fines on admission to copyholds, or on renewals of leases, the manner of raising the fines, and the question of contribution between the tenant for life and the remainder-man, must depend upon the in tention of the testator, to be collected from THE will of Sir William John Playters, so far as it applied to the questions in the cause, was in the following words:"First, I nominate, constitute, and appoint Francis Abbott and Gardiner Chapman executors of this my will; and I give and devise to the said Francis Abbott and Gardiner Chapman, their heirs and assigns, all my messuages, lands, tenements, and hereditaments, as well freehold as copyhold, or of any other tenure, situate, lying, and being in the parishes of Yelverton, Alphington, Framingham, Earl Bramerton, and Holveston, in the county of Norfolk, or in any other parish or place, or parishes or places adjoining or near thereto; and all other my messuages, lands, tenements, and hereditaments whatsoever and wheresoever, and of what nature or tenure soever, whereof or wherein I or any person or persons in trust for me have or hath any estate of the whole freehold or inheritance, to hold the said premises with will. the appurtenances unto and to the use of the said Francis Abbott and Gardiner Chapman, their heirs and assigns for ever, upon the trusts and to and for the intents and purposes, and subject to the powers, provisoes, and declarations hereinafter mentioned, expressed, and contained of and concerning the same; that is to say, upon trust that the said Francis Abbott and Gardiner Chapman, or the survivor of them, or the heirs, executors, or administrators of such survivor, do and shall, by and out of the rents and profits, or by mortgage, sale, or other disposition of the said messuages, lands, tenements, and hereditaments, or any part or parcel thereof, raise and levy all such sum and sums of money as may be necessary for paying, satisfying, and discharging the fines and VOL. II. H fees |