« PreviousContinue »
and to certain other persons, his relations on the part of 1835. his grandmother. He also gives Temperance Bedford an advowson in the county of Bucks; and yet in this devise
LOWNDES he passes her by, plainly intimating that she is not of the class amongst which we are to look for the heir at law intended, and that the person he had in view was an heir of the blood of the Selbys. There is, too, something singular in the terms of the devise to William Lowndes. The testator appoints him in a very unusual way his heir at law -making him, after the fashion of the old Roman law, a sort of adopted heir-as one standing in loco hæredis, unless the right heir originally contemplated by the testator should be discovered. Added to this, certain duties are Duties cast cast upon the heir, such as the payment of debts, legacies, upon the heir. and annuities, &c., charged upon the estate, which renders it necessary that the devisee should take the fee. How are we to suppose that the testator meant the devise to be ambulatory for a period of sixty years—the construction contended for on the part of the demandants? Looking, therefore, at these indications on the part of the testator that the large and comprehensive terms used in the will should be thus restricted, we are of opinion that the heir at law of whom mention is first made in the will, is an heir of the blood of the Selbys; and that, no such heir having been found, the devise to William Lowndes was a good and valid devise.-Two points have been urged on the part of the demandants into which I shall not now enter the one, as to whether or not, under the terms of this will, As to the period the heir at law whose claim was to operate so as to des- at which the
devise was to troy the effect of the devise to William Lowndes, was take effect. bound to make his claim within twelve months after the testator's death, the period within which the debts and legacies were to be paid—the other, as to whether the As to the rule rule of descent laid down by Mr. Justice Manwood in the case of Clere v. Brook, and recognized and adopted by the very high legal authorities that have been referred to in
1835. the course of the argument of the Attorney-General in DAVIES
this case, is to be preferred to that which Mr. Justice Blackstone adopts (postponing the class No.11 to No. 10), and so learnedly enforces, in the second volume of his
Commentaries, Book 2, Ch. 14. Such a discussion would As to the vali- here be out of place.—Then, as to the validity of the fine dity of the fine.
levied in the year 1784. It appears from the evidence, that, from the death of the testator in 1772, down to the year 1783, various proceedings were had in the court of Chancery relative to this property; and that pending those proceedings William Lowndes, the father of the tenant, and the devisee named in the will of Thomas James Selby, was appointed receiver; that, previously to the making of the final decree in the equity suits, the courts held by the devisee as lord of the manor of Whaddon, were held by him in his own name of William Lowndes; and that, after the date of that decree, the courts were held either in the name of William Lowndes Selby, or William Selby. The effect of the decree was, to put :William Lowndes into possession of the premises in question as devisee; and from that time to the present he and his heir (the now tenant) have been in the actual receipt of the rents and profits. Upon this part of the case, therefore, the only question of fact for your consideration is, whether William Lowndes, at the time of levying the fine, viz. in 1784, was in possession and in receipt of the rents and profits, claiming the same in his own right, or as a mere receiver. I must confess that I have seen no evidence to support the latter proposition. He appears to have taken possession and to have received the rents and profits in his own name and to have appropriated them as his own right. This being so, the fine is a good and valid fine in a court of law, whether the fee was at that time in him rightfully or wrongfully. Even if William Lowndes held as trustee at the time, I am not prepared to hold that the fine would not be good; for, we could not, I think, in a court of law,
say that the party to the fine had nothing in the lands. 1835. How a court of equity would deal with it is another ques
DAVIES tion. A fine duly levied, with proclamations, and five years' non-claim, constitutes a bar against all the world. If therefore this was a valid fine, that alone will entitle the tenant to a recognition in his favour.
The devise to William Lowndes was made subject to a Not necessary condition that he should change his name to Selby: and should have obit has been asked by one of the Grand Assize whether, in tained a royal
license for order to bring himself within the condition, it should not changing his
name to Selby; be made to appear that William Lowndes did, either by nor that he act of parliament or the royal sign manual, so change changed it withhis name. Upon this point, the evidence is, that, whilst in a definite
period. the proceedings were going on in chancery, Lowndes did not adopt the name of Selby; but that he did so after the date of the final decree which gave him the possession of the property. There is nothing in the will that requires the change in the name to be made within any precise time: neither does the law point out any mode by which such change is to be effected (c). It is true that it is by no means an uncommon thing for parties, in order to give a greater apparent sanction and a more extensive notoriety to the fact, to obtain a royal license for changing their names. But it is not absolutely necessary: a party may (no fraud being contemplated) adopt a name, and work bis way in the world with it as well as he can, without doing any formal act. That Mr. Lowndes, therefore, failed to obtain the king's license for using the name of Selby, is not an objection that can avail on the present occasion. Besides, it is an objection that is out of court if the fine of
(c) A person taking a name by Leigh, 15 Ves. 100. And see Doe act of parliament does not lose his d. Luscombe v. Yates, 5 B. & Ald. original name, and might take a 544, where the voluntary assumplegacy by it: the effect of the king's tion of a name was held sufficient license is only permission to use
to prevent a forfeiture. a name, not imposing it-Leigh v.
1835. 1781 was properly levied, or if the demandants have failed
in the proof of their pedigree; and it is equally out of court if the construction we have put upon the will be the
true one. The principal fact for your consideration is, As to the proof whether or not the pedigree of the demandants has been of the demandant's pedigree. proved; if you think it has not, then your recognition will
be for the tenant: if, on the other hand, you are of opinion that the pedigree is made out, still upon the points of law that have been raised on the part of the tenant, and which I have endeavoured to explain to you, and in the consideration of which you will no doubt be guided by the court, the tenant will also be entitled to your verdict.
Tender of bill Talfourd, Serjeant, on the part of the demandants, tenof exceptions, dered a bill of exceptions. The grounds of exception 1. to the construction put by were—first, to the construction put by the court upon the the court upon the-2. to the will; the demandants contending that the testator meant ruling as to the effect of the fine. the devise to operate in favour of his heir general
secondly, to the ruling of the court as to the effect of the fine-thirdly, to the reception of the decree of March 28th, 1783.
Tindal, C. J.-It is too late to object to the admissibility of the decree: the demandants made use of it for the purpose of shewing the seisin of the testator within sixty years.
It was proposed to take the opinion of the jury upon the
specific points: but the demandants' counsel objected that No special ver- it could not be done—it being admitted that in a writ of dict in a writ of right.
right there cannot be a special verdict. The Grand Assize retired for about half an hour. On their return, the Lord Chief Justice asked if they were agreed as to the pedigree: but they declined to answer the question, and returned a general verdict for the tenant.
Verdict for the Tenant.
“ and their law
CURSHAM and Others o. NEWLAND and Others,
April 30th. The following case was, under the direction of His Testator devisHonor, the Master of the Rolls, submitted for the opinion of his freehold, of this court:
leasehold esRichard Merricks, the testator in the pleadings in these tates, &c., to
his wife for life; causes named, made his will, which was duly executed and and from and attested, in the following terms:- Whereas I am seised in immediately af
ter her decease fee simple and inheritance of all that undivided third part to his son and
daughters, of certain messuages, lands, tenements, hereditaments, and namir premises situate in the parish of Hellingly, in the county ful issue respecof Sussex (near the church there), which are now in the tively,
general, with occupation of my nephew B. W. Gilbert, or his under ten- benefit of survi
to ants or assigns; now I do hereby give and devise the said amongst the ismessuages, lands, tenements, hereditaments, and premises, iy, as tenants in unto and to the use of my nephews B. W. Gilbert and G. common, and
not as joint tenF. Gilbert and their assigns respectively during their na- ants:"—Held, tural lives and the life of the longest liver of them; and, of the testator
that the children after the determination of those estates, by forfeiture or took estates for
their respective otherwise, in the lifetime of my said nephews or the sur- lives, as tenants
in common, in vivor of them, to the use of my trustees, W.C. Newland, the freehold and W.W. Holland, and H. Hall, and the survivors and sur- copyhold lands,
and the grandvivor of them, and the heirs of such survivor, during the children continnatural life of my said nephews and the life of the survi- in tail general vor-upon trust to preserve the uses hereinafter limited by purchase in
the shares of from being defeated, and for that purpose to make entries their respective
parents in the and bring actions as occasion shall require; but nevertheless same lands, to permit and suffer my said nephews or their assigns, and mainders in tail the survivor of them and his assigns, to take the rents, is- Children
among such sues, and profits of the same premises during their natural respectively,
and cross-re• among their parents—the testator having used the words “ issue of child or children" as synonymous with " sons or daughters of a child or children;" and that the children and grandchildren respectively took corresponding interests in the leaseholds.
mainders in tail