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vise to Robert for life, and after to the next heir male of 166%. Robert, and to the heirs males of the body of such next heir male. It was adjudged he had an estate but for life, and the next heir male took as purchaser; but their being expressly "'for life" in the very will, there i9 less cause by construction to give him an estate tail. Secondly, It was not to the heir male of Robert, nor heir male of the body of Robert, and so differing from the words subsequent of limitation which will alter the case, as I shall shew by and bye. But here it is limited to William, and so to John after the death of Elizabeth, generally, without shewing what estate; and, therefore, may admit that construction that William should have an entail.
But for that case of Archer, I will not raise up again the question from the grave: but I must say, first, that the other point of contingency, that the remainder might be destroyed, being unanimously resolved, went to the end of the case; so that the resolution of this was ex abundantly and more than needed; and, secondly, It appears by the verdict, that Robert was son and heir to the testator; and, therefore, the estate for life limited to him before a son born must determine, it being incompatible that the fee simple in him, and the estate for life without any estate actually to interpose, should stand together.
Id Lewis Bowie's case, 11 Co. 79, upon a feoffment or covenant to stand seized to the use of A. for life, remainder to his first and other sons in tail, remainder to the heirs of the body of A.; there is an estate arises when the contingency happens, to set up and feed the contingent use. But there is none such in case of a will. So that this point in that case was passed over to introduce the opinion of the Court in the greater points of destroying a contingency by feoffment, and of a warranty descending to bar it.
And in truth, the case itself varies in the record of the verdict in some things from it, as it is recited in the case; for the words of the will as they are found by the verdict are " to Robert for life, and after his death wholly to remain to the right and next heir of Robert, and to the heirs of his body [and so is the case itself, as it is reported 3 Cr. 453.] In the case it is, to the next heir male of Robert, and to the heirs males of the body of such next heir male. But be it one, or the other, it is not the next heir or heir male of the body of Robert, but to the next heir or heir male of Robert, and heirs males of his body; and, therefore, hath more ground to make him a purchaser, because the words whereby he should take as a purchaser differ from the limitation after, and are not of the same kind. The heir male or heir of Robert ex
tended to the collateral line; so did not the words of limitation; and, therefore, may well be understood to be of a differing kind. But in our case the words heir male of the body of William, or John, and the heirs males of his body, are both of one kind; and the latter words vary not in the limitation.
Thirdly, the time of the will in Archer's case, and of this will, are to be considered. This will was made 8th September, 39 Eliz. 1597.; and Archer's case was in the same year. That case and Shelly's case came in print three or four years after; and, till Shelly's case, it was long debated, whether where an estate was limited to a man for life, remainder to the heirs males of his body, whether the heir did not take as a purchaser. And, therefore, even in that case, they did not rest in limiting it to the heirs males of the body of Shelly, but to the heire males of the body of those heirs males; and that may be the reason why it was so limited, both in this and that will. But as it was adjudged in the case of Shelly to be superfluous, so shall it be here. If the word heir be taken collective for heirs, it is no more than a devise after the death of Elizabeth to William, and the heirs males of his body, and the heirs males of the body of such heirs males; with like remainders to John and the heirs males of his body; and so all parts of the will agree. - [P. 36Eliz. SCr. 96. Smith and Hawes. The grandfather devised to the father for life, remainder to the son and the heirs males of his body, remainder to the right heirs of the devisor, and the heirs males of his body begotten. The grandfather, (the devisor) and the father die; the son had issue a daughter. It was adjudged she had a fee simple, notwithstanding his intent was apparent that his right heirs should have an estate tail; for the-fee vested in the father by the death of the devisor, and cannot by matter subsequent be turned into an estate tail.]
Sunday's case, 9 Rep. Which I have before cited in part, ^proves this exposition. He devises, if his son Samuel, to whom lie had before devised it, have no issue male, then his son Thomas to have it. If Thomas marry, having a male issue, then his son to have it; and if he have no male issue, then Richard to have it. There the estate was to Thomas generally, and after to his son, which is much more particular than the word next heir male in our case; yet, ad cvitandum absurditatem, the law will construe his meaning by the subsequent words, that his issue male shall have it, so that no estate goes to the son of Thomas by the word son; for that would exclude other sons; but an estate tail settles in Thomas himself. A nd so by analogy of reason in our case, the heir vmte and heirs males of the body of the heir male, shall extend to the heirs 1662.
males of the body of William. v^-v*^/
I do not deny, this is not the clear literal interpretation of pett* the words: but it is enough if the words will bear this inter- Goddah*. pretation, the other parts of the will manifesting this to be his Tne clear intention, and thereby avoiding, not only contradictions, but ab^ literal intersurdities, which would arise upon another interpretation. But ^ordlraa/be whether this interpretation of these devising words shall stand departedirom or not, yet his general intent upon the whole will appearing, jfea^^uJer that the heirs male of the body of William, the devisor, shall sound interhave it, by express and pregnant words in the will, subsequent Pr^tiot?' to this. That part of the will shall be taken to be in force, otherparte of which is last iiv the will, and agrees with that general intent, a will manirather than the other part; for the last words in a will, and the ^SSm!^ first in the deed, shall stand in force. "" and absurdi
So that I conclude, that the general intent of the devisor in IrSlctfons,11"
the will was, That the lands should go to his sons, and the majr thus b'e
heirs males of their bodies successively in remainder. And I avoided
deduce it,— ^ifHfV*'
'will shall be
First, from that which is apparent in both clauses of his will, taken to be in. that he intended his goods and land should go together. ££^ ^^
Secondly, That it is manifest his goods, by the words and will, and intent of the will, are to go to the heirs males of his body, and "fe6^* consequently his lands ought to go so also. intent." The
Thirdly, From the absurdities and unreasonable conse- ,ast.word»in
* 3 \t ill HIIII
quences of another construction; First, that if an) of the sons the first in a outlive the mother, all the remainders would be void, contrary deed, shall to his express intent. Secondly, That ifWilliam or John staQdinforccshould have two or more sons, all should be disinherited but the eldest, and the estate skip over them to another brother, and in like manner from one brother to another brother. Nay, if William or John's wife were enseint at the time, and the child born after Elizabeth's death, it should not take.
And, lastly, from the devising words themselves, which, in a reasonable and fair construction, such as we allow in wills, though not necessarily, yet -eroitandam absurditatem be fairly and without violence extended to the sense of devising the fends to his sons, and the heirs males of their bodies in remainder one after another, [whereas to introduce that sense which is put upon the words by my brother of the contrary opinion, and which confessedly carries with it these unreasonable consequences and absurdities, you offer greater violence to the words; for whereas the words are, to William, if he be 4hen firing, and if he be dead, to the next heir male of his body, you put in the words,/or life, and make it to William for Tile-, 1662.
and you put out the words, if he be then living, and if he be dead, which words literally sound in contingency and make it to William for life, remainder to the next beir of his body, and theheirs males of his body.J
For authorities in point, I can cite none. I remember what Justice Jones said, in Daniel and Ubly's (q) case :—"a case upon a will has no brother, and therefore authorities in point in such cases cannot be expected." But these cases which (as cousin german) by analogy of reason agree with ours, as Sundays and Spaldings, I have cited, as they came in my way, and lay no further weight upon them.
I conclude that judgment ought to be given for the defendant, who claims under the recovery suffered by Thomas, who, as I have argued, was tenant in tail.
(j) Latch, and the contemporary reporters, 3 Car. 1.
BECKMAN v. MAPLESDEN. (a)
[The law requires the same measures (6) for the same kind of com-
In an action of trover and conversion for taking away certain pots, and thirty pounds weight of pewter pot metal, the special verdict finds that the plaintiff was possessed of the pots in the declaration, and so finds the special matter touching them; but they say nothing as to the thirty pounds weight of pewter pot metal, neither finding the plaintiff possessed or not possessed; or the defendant guilty or Dot guilty of the conversion. This omission vitiates the verdict, although the conclusion is special; inasmuch as the conclusion is grounded on the special matter which extends not to the metal. And this is not holpen by the statute of 32 H.8. c. 30. of Jeofayles. That statute, after issue tried, aids negligence or default of the parties, their counsel or attornies; but not the verdict or fault of the jurors.]
(a) A note of the argument of counsel in this case, is in No. 3781, of the Ayscough MSS. in the British Museum. It was decided in Michaelmas term, 14 Car. II. Harg. MSS. No. 55. fol. 139, and No. 57,
fol. 201. The defendant was Mayor of Maidstone in 1658—1659.
(ft) See a short note on the late discussions upon an uniformity of weights and measures in Appendix D.
An action of trover and conversion is brought against Ger- 1664. vase Maplesden by Gabriel Beckraan, for one pewter gallon ^^v"^"/ pot, one pewter quart pot, one pewter pottle pot, one pewter Beckman pint pot, 301b. weight of pewter pot metal, and 30 lb. weight M*plesdew of other pewter metal called lay, to the value of 100s. ad Ha MSS damnum 101. •''. No. 55. fol.
Upon not guilty pleaded, a special verdict is found:— fol. 202!"
That, 28th October, 1659, the plaintiff at Maidstone Nomeilti0I1
contain less than the standard by virtue of the statute ^ot found
.»■,««■• j now, or by
delivered out of the records of the Exchequer, and wnora tried;
kept in the town of Maidstone aforesaid for the whole nor do tie county of Kent; and that, thereupon, the defendant s^jJutonly being then mayor of the said town of Maidstone, in thattheywere the said court of clerk of the market, did seize the SUbJlK? said pots as forfeited, and did break the said pots, sure, (c) and destroy them, according to the form of the statute 11 H. 7., in such case made and provided. And they further find, that the said pots were of the bigness of the several measures used for the sale of wine, and were worth 30*. But whether the standard measure for retailing wine, and the standard measure for retailing ale, are and of right ought to be one and the same measures, or diverse, the jury know not; and therefore pray the advice and consideration "■ i '■ 11 ■ in • 11—■— , r. ■ -- ■
(c) Notos in the margin of the manuscript'