Page images

Superior Courts : Exchequer Chamber .--Analytical Digest of Cases : Law of Wills. 285

Court of Erchequer Chamber. any penalty shall be recovered under the proRegina v. Dale. Nov. 13, 1852; Jan. 22,

visions of this Act, to award, if he shall think

fit, any portion of the same, not in any case 1853.

exceeding one moiety thereof, to the use of the ALEHOUSE ACT. - PENALTY, HOW APPRO prosecutor, and the remainder to the treasurer

PRIATED.-INDICTMENT AGAINST CLERK of the county or place for which such justice TO BOROUGH MAGISTRATES.

shall then act; and the said treasurer shall Held, that the penalty inflicted on a publican place the same to the credit of such county or

for keeping his house open after 12 o'clock place, and shall duly account for the same." is to be paid to the treasurer of the county. And by S. 120 of

the countul And by s. 126 of the 5 & 6 Wm. 4, c. 76, as under the 9 Geo. 4. c. 61. s. 26, and not to the application of penalties, it is provided, to the borough treasurer. A conviction that “nothing herein contained shall extend to was therefore confirmed against the clerk any penalties or forfeitures recovered under to borough magistrates for having paid one- any

Lavina naid one any Act relating to the Customs, Excise, and half of such penalty to the borough trea

gh trea- Post Office, or to trade or navigation, or any surer and the other to the prosecutor. branch of his Majesty's revenue."

Pashley for the defendant; Otter in support UPON a conviction of a publican named of the conviction. Gibbon for having kept his house open after 12

Cur. ad. vult. o'clock, the fine of 21. 10s. had been paid to The Court held. that the penalty should the defendant, the clerk to the borough ma- have been paid to the county treasurer, and gistrates of Tynemouth, who paid one moiety confirmed the conviction accordingly thereof over to the borough treasurer and the other to the prosecutor, and he was thereupon indicted and found guilty for not having paid Jan. 28.-Stevenson v. Newenham-Venire de the same to the county treasurer under the 9 novo. Geo. 4, c. 61, s. 26, which enacts, that “it – 28, 29.-York and North Midland Railshall be lawful for any justice, before whom way Company v. Reginam--Cur, ad. vult.




all and every the daughters, if more than DEVISE.

one, of C., their heirs and assigns for ever, 1. Estate of inheritance or by purchase. Ito hold as tenants in, common, and not

as Coalescence of life estate with estate in remain- joint tenants; and, if but one daughter, then der.-General and particular intent.-H., seised to the use of such only daughter, her heirs and of lands in fee, devised them to trustees and assigns for ever. And, in default of such their heirs, to the use of the heirs male of E., daughter or daughters, or, there being such, his sister (which E. died without leaving issue all of them should die before attaining 21, male), who should live to attain the age of 21, / without lawful issue, then to the use of Mi's and to his heirs and assigns for ever. And, daughters, with similar limitations. And, in for want of such heirs male, or, there being default, &c. (interests given to other parties). such, he or they should die before severally Direction, that the trustees should receive the attaining the age of 21. then to the use of c. rents until the persons should be entitled to (a niece), for the term of her natural life, for and come into possession under the said limitaher separate use, independent of any husband ; tions; such rents to form part of the personal her receipt for the rents to be sufficient dis- estate. Power to the trustees to lease for a charges, notwithstanding her coverture. And, term not exceeding the period at which C. and after the determination of that estate by for- M. respectively would attain 21, reserving the feiture or otherwise, to the use of the same

rent to the trustees or tbe persons who should trustees and their heirs. during C.'s life, in become entitled. Power to appoint new trustrust to preserve contingent uses and estates

tees, and devise to them jointly with the surafter limited, but to permit C. to receive the vivors of the original trustees ; such survivors rents during her life. 'And, after C.'s decease, to transfer, so that the legal estate should vest « to the use of the heirs male of the body of in the new trustees. By a codicil, power was C., lawfully to be begotten, who shall live to given to the trustees to employ a person named attain the age of 21 years, and to his heirs and as receiver of the rents. assigns for ever. But, in default of such heirs ! Held, that C. took an estate in tail male, male, or, there being such, he or they shall die either legal or equitable. For thatbefore he or either of them shall attain the age! 1st. If the trustees took the legal estate of 21 years without lawful issue. then to the during Co's life, they took also the legal estate ase” of M. (another niece), with the like limi- as to all the limitations down to and including tations as in the case of c.. to M. and her heirs the estate of M.; and therefore the estates male. But, in default of such heirs male. I limited after C.'s life would, if taking effect as &c., or, &c. (as before), then to the use of by inheritance and not as by purchase, coalesce


Analytical Digest of Cases : Law of Wills. with the life estate into an estate in tail male. and in the occupation of C. I also give to S. And that

that other dwelling-house and garden situate 2nd. The said estates took effect by way of in- in York Street, No. 30, the whole of which heritance, it appearing that the devisor did not premises are in the borough of Plymouth, intend that the estate should go over so long during her natural life; but should S. marry as there was issue male of C., and therefore and have children, then, after her decease, the the words “heirs male of the body" must before-mentioned houses to descend to her have their technical effect as words of inheri- children ; but should s. die without issue, tance (not of description); and the words then the said premises to become the joint pro“who shall live to attain the age of 21 years, perty of the children of B. I also give, proand to his heirs and assigns for ever,” were to vided S. dies without issue, the sum of 1001. be rejected, the particular intent thereby ex- to J., to be paid to him out of the before-menpressed being inconsistent with the general | tioned premises :" Held, that S. took an estate intent. Toller v. Attwood, 15 Q. B. 929. in fee simple in the first-mentioned house; and Cases cited in the judgment: Shelley's case, 1

therefore, upon her death without issue, the Rep. 184, a.; Harton v. Harton, 7 T. R. 652: children of B. were entitled only to the two Hawkins v. Luscombe, 2 Swanst. 391: Fest? other houses. Doe dem. Bailey v. Sloggett, 5 ing v. Alten, 12 M. & W.279 ; Bull v. Pritch-| Exch. R. 107. ard, 5 Hare, 567 ; Jesson v. Doe dem. Wright, 2 Bligh, 1, 57; Jack v. Fetherston, 9 Bligb.

DUPLICATE WILLS. N.S. 237; 3 Cl. & F. 67 ; Poole v. Poole, 3 Executed at different times and places.-DiB. & P. 627; Doe nem. Tremewen v. Per-rection to the jury. The testator executed a mewen, 11 A. & E. 431 ; Dunk v. Fenner, 2 will in Yorkshire, in 1776, he then having tour Russ. & M. 557; Montgomery v. Montgomery, sons. A fifth son being born in 1777, the tes. S J. & Lat. 47.

tator, in 1778, executed in London, what was 2. Falsa demonstratio. - Tenant in fee of apparently intended to be a copy of, and was tour messuages at L. H., in the parish of F.. /dated on the same day as, the Yorkshire wil, having no other land, devised to J. in fee “ali and at the same time made a codicil in duplithose my three messuages or tenements, with cate,

cate,-the ostensible object of the codicil being the gardens, close of land, and all other my to make provision for the newly born son. The real estate whatsoever. situate and being' attestator's third son died in 1795. The testator 4. H., in the parish of F. as aforesaid, now in died in 1808, leaving the other four sons him the occupation of myself,C., W., N., and H. surviving. After his death, the Yorkshire will, Three of the messuages were in the occupation with one copy of the codicil, were found in an of the devisor, C., W., N., and H.; the fourth open portfolio upon his library table, with messuage was not in the occupation of the de. erasures in both, the effect of which would be, visor or of C., W., N., or H.

in a certain event, to give to the eldest son Held, that the fourth messuage passed by the certain estates whi

certain estates which otherwise would have general words. Doe dem. Campton v. Carpen- gone to the younger sons in succession. The ter, 16 Q. B. 181.

London will, with the other copy of the codicil, Cases cited in the judgment : Doe dem. Hubbard,

were found, without alteration, locked up in a v. Hubbard, 15 Q. B. 227 ; Wilson v, Mount,

drawer in the same table. In the portfolio was 3 Ves. 191.

also found an undated and unfinished sketch

of a will. The Yorkshire will, and the codicil 3. To son for natural life and to issue of found with it, were proved by the testator's body.--Estate tail.-Testator devised as fol. / widow and executrix. After the death of all lows :—“I give and devise to my son Stephen, his brothers, the testator's fifth son brought an a small field at, &c., to hold to my said son ejectment against the heir of his eldest brother, Stephen for and during the term of his natural claiming under the limitations in the unaltered life: and from and after his death, then I give (or London) will and codicil. and devise the same to the issue of his body At the trial, the Judge, left it to the jury to lawfully begotten. if more than one, equally say,-1st, whether the London will was esce amongst them; and, in case he shall not have cuted by the testator as a separate and inde. any issue of his body, lawfully begotten, at the pendent will, or whether the Yorkshire will time of his death, then I give and devise the and the London will, with the duplicate codicil same to my heir or heirs-at-law :" Held, that annexed to each, formed one will, the last Stephen, the son, took an estate tail. Doe d. I will of the testator; telling them, that if they Cannon v. Rucastle, 8 C. B, 876.

were satisfied that all the documents together Case cited in the judgment: Shelley's case. i formed one will in two parts, an alteration or Co. Rep. 93, b.

obliteration in one part, was, in point of lax,

an alteration or cancellation of the correspond4. Construction of.-A testator devised as ing portion of the other part, and that the world, follows :-"I give to my granddaughter S., 1 so altered, became the last will of the testator ; her heirs, executors, and administrators for 2ndly, whether the alterations, when they were ever, that dwelling-house in Tavistock Street, I made by the testator, were intended by him to No. 3, in the borough of Plymouth. I also be final, and to stand as his last will, or were give to S. that dwelling-house and garden | merely deliberative, and intended to exist only situate behind the abovenamed dwelling-house, I until he made a future will. The jury found

Analytical Digest of Cases : Law of Wills.

287 that the two wills and the codicil were intended of my will, to the said H. D. B., with the like to form one will, and that the alterations in limitations over as are contained in my said the Yorkshire will, and in the codicil found will and this codicil, concerning my other with it, were intended to be final.

copyhold estates in the said county of Hertford Held, that these two questions were properly or otherwise :" Held, that, according to the submitted to the jury, and that the direction of true construction of this codicil and will, the the Judge was correct in point of law.

copyhold estate of Cock Corns was devised to Held, also, that it was no ground for a new T. B. and his issue for life. Grover v. Burningtrial, that the Judge left to the jury as a ques- ham, 5 Exch. R. 184. tion of fact, that which he should himself have

LEASING POWER. decided as a matter of law,-unless the objec- | tion was presented to the notice of the Judge Accustomed rents. -- Latest lease. Will, at the trial. Doe dem, Strickland v. Strick- when to be read as bearing date of codicil.—By land, 8 C. B. 724.

will of 1761, power was given to tenants for Case cited in the judgment: Killican v. Lord

life to lease for lives, so that there were reParker, 1 Lee's Eccl. Cas. 662.

served in every such lease the ancient and ac

customed rents and heriots for the premises, ESTATE TAIL.

or more. By codicil of 1763, reciting that J. D., at the time of making her will, was another child was born to the testator since entitled to two freehold estates, one in the the making of his will, that his former children county of Westmoreland, and the other in the were provided for, and that he wished to procounty of Berks, and also two copyhold estates, vide for his last born child, provision was one called Hempstead, and the other Cock made accordingly; and the will was thereby Corns. In 1778, J. D. made her will, and de- also ratified. vised her freehold estate, in the county of In a lease of 1724, the rent was 11., and a Westmoreland, after certain life estates, to heriot, or 31. in lieu of it, was reserved, and the her great nephew, T. B., for life, then to his lease was granted on payment of a fine. By issue for their respective lives, remainder to his another lease, granted in 1762, between the brother, H. D. B., for life, then to his issue for times of making the will and the codicil, the their respective lives, and then to S. E. for life, rent was 15l., and there was no heriot or fine. and her issue, remainder to the right heirs of A tenant for life, in execution of the leasing the testatrix. She devised the copyhold estate power, granted a lease according to the lease of Hempstead, after certain life estates, to of 1724 : Held, H. D. B., for life, remainder to his issue, re- That, although the latest lease preceding the mainder, to T. D., and the copyhold estate of creation of the power was entitled to greater Cock Corns, after the same life estate, to weight than any single earlier lease, and ought H. D. B., for life, remainder to his issue, re- to govern the decision where there was a mainder to R. D. The freehold estate in the balance of evidence, yet, where the ancient county of Berks, the testatrix devised, after custom appeared to have been uniform, and a certain life estates, to T. B., remainder to his , single lease varying therefrom was granted issue for their respective lives, remainder to just before the creation of the power, the exhis brother, H. D. B., and his issue in like ceptional lease ought not then to govern merely manner, remainder to S. E. for life, and her because it was the latest. issue, and then, with limitations over in strict That whether the lease of 1724 or that of settlement, to certain collateral relations of the 1762 contained the ancient and accustomed testatrix. In 1784, the testatrix made the fol- rent and heriot was a question for the jury. lowing codicil :-"And whereas I have in and That the will, creating the power, was not to by my said will, in the disposition I have be read as of the date of the codicil confirming therein made of my share of the real estates in the will; because the codicil was made for the counties of Westmoreland, after the several one specific purpose wholly unconnected with limitations in favour of my great nephew, T. B., the power in question; and the rule, that a shall be spent, limited the same precisely in codicil confirming a will makes the will for the same manner to his brother H. D. B., I do many purposes to bear the date of the codicil, hereby confirm the same, and further declare is subject to the limitation that the testator's my mind and will to be, that, in the next dis- intention. be not defeated thereby. Doe dem. position made in my said will, and of and to Biddulph v. Hole, 15 Q. B. 848. my share of the several copyhold estates of Cock Corns, &c., the said T. B. shall, after the

PAROL EVIDENCE. limitations in favour of his brother, H. D. B., To explain devise.Description of premises. shall be spent, have precisely the same estate - Falsa demonstraiio. — Testator, after beand interest therein before the subsequent limi- queathing money and chattels to his wife, detations to T. D. and R. D., shall respectively vised as follows :- And, as to all the residue of take place as the said H. D. B. hath, in and by my estates whatsoever, not herein before given my said will in the estates in the said county and disposed of, I will and desire that all that of Westmoreland; and I do hereby give and piece of land, known, &c., be divided into five devise the copyhold estate which I lately pur- equal parts ; one part to be given, &c: he then chased of the widow K., and which, after my devised one-fifth part to his eldest son, William, admittance to the same, I surrender to the use two-fifth parts to his sons Thomas and John 288

Analytical Digest of Cases : Law of Wills. respectively, and the remaining two to persons with a condition, that if his wife should give named Parkinson and Weston; all in fee. He birth to a posthumous child, such child should then proceeded :-I do hereby give to my son take, to the exclusion of the nephew. A child David H. all those two cottages or tenements, being afterwards born in the testator's lifetime, the one occupied by my son John H., the other Held, that such child did not take by implioccupied by my granddaughter, together with all cation under the will. Doe dem. Blakiston v. the appurtenances thereto belonging : devising Haslewood, 10 C. B. 544. also to David other lands, and the testator's horses, implements of husbandry, &c., and

and REMAINDER AFTER TENANT IN COMMON. debts, and appointing him sole executor.

Devisee for life.- Devise to trustees " to the In an ejectment brought by William, as heir-use and behoof of my son and daughter and at-law, against David, it appeared that the tes- their respective assigns, for and during the tator, several years before executing his will, term of their respective natural lives, equally was admitted to copyhold premises, described to be divided between them, share and share on the Court-rolls as “two customary or copy- alike: remainder to the trustees to preserve hold messuages, cottages or tenements adjoin- contingent remainders;" but, nevertheless, to ing or near to each other, with the yards, gar- permit and suffer my said son and daughter dens, and homestead to the same belonging, respectively, and their respective assigns, to containing 2a. 24p., situate,” &c.; now or receive and take the said rents," &c., "to their late in the occupation of, &c. (three persons use during their natural lives; and, from and named). The testator at first occupied all the after the decease of my said son and daughter, premises; but he afterwards, and before the or either of them, to the use and behoof of all date of his will, divided one of the cottages and every the children of my said son and into two dwellings by a partition on the ground daughter respectively, both male and female, floor, leaving no interior communication, but and their several and respective heirs and asmaking a new outer door. One of these signs, to be equally divided among them, share dwellings was occupied by the granddaughter and share alike, as tenants in common, and above-mentioned, the other by Wm. H., the not as joint tenants; and, if there shall be eldest son. He had also, before making the only one such child of my said son and daughwill, divided the second cottage in like manner; ter, to the use and behoof of such child, his or and one part of this was occupied by the son her heirs and assigns for ever; and, for default John H., named in the will, and the other by of such issue of my said son and daughter, David, the above mentioned defendant, also then I give and devise the said premises" to therein named. There were no appurtenances the use of T. P in fee. to the tenements so newly formed, except a The son and daughter, who had each several hovel apart from, but used with, the dwelling children, survived the testator. occupied by John, and a pantry adjoining that Held, that, on the death of the son, his occupied by Elizabeth. Another part of the moiety did not pass to his sister, who survived buildings had been formed into a cottage, and him, for her life, with a view to a deferred occupied by a person named Weston, before distribution, after her death, among the chil. the making of the will.

dren of the two families per capita, but that Held, by Lord Campbell, C. J., Patteson, and his moiety passed at once to his children. Wightman, JJ., Erle, J., dissentiente, that by Doe dem. Patrick v. Royle, 13 Q. B. 100. the devise of the two cottages as described in

Cases cited in the judgment: Pery v. White, 2 the will, nothing passed but the tenements

Cowp. 777 ; Doe dem. Comberbach v. Perryn, actually occupied by John H. and the grand 3 T.R. 484 ; Right dem. Shortridge v. Credaughter, and that the devisor remained in

ber, 5 B. & C. 866. testate as to the residue, which therefore passed to the heir-at-law.

RESIDUARY CLAUSE, The person who prepared the will being « Testamentary estate.P., seised in fee, called as a witness, counsel proposed to ask by will dated 1821, devised land to W., withhim “what the testator said about the two out words implying inheritance, “but not to cottages” on that occasion,

be sold or mortgaged ;” and then he devised Held by Lord Campbell, C. J., Patteson, and lands to E. S.; and added, “ also, I give, Wightman, JJ., that the question, in that ge- devise, and bequeath unto the said E. S. part neral form, could not be put. Doe dem. Hub- of my household goods and chattels, and tesbard v. Hubbard, 15 Q. B. 227.

tamentary estate and effects, whatsoever name Cases cited in the judgment: Doe dem. Temple and denomination, except my clock,” &c. man v. Martin, 4 B. & Ad. 771,785 ; Thomas (other personal chattels named)," which I give v. Thomas, 6 T. R. 671, 676 ; Roe dem. Ryall and bequeath unto M. H.; and the remainder v. Bell, 8 T. R. 579 ; Doe dem. Humphrey's v. of my household goods, chattels, and testa: Roberts, 5 B. & Ald. 407; Newton v. Lucas, mentary estate and effects, I give, devise, and 6 Sim, 54.

bequeath unto the said M. H. and E. S., share “POSTHUMOUS CHILD.”

and share alike :" Held, that the residuary Testator, in contemplation that his death

clause passed the remainder expectant upon

| Wi's life estate. Doe dem. Evans v. Walker, was approaching, devised lands to his wife for life, with remainder in fee to his nephew,

15 Q. B. 28.

The Legal Observer,



LAW BILLS BEFORE PARLIAMENT. I be taken upon the question, and the whole

subject fully discussed. To enable our

readers to form their own opinions upon EXTENSION OF COUNTY COURT JURIS- | the merits of the Bills already in print, and DICTION.

to keep what in nautical phrase is termed The regular Parliamentary Session hav- " a clear deck,” we subjoin an epitome of ing commenced, attention is naturally di- both the Bills laid before the House of rected to the progress and prospects of the Lords for extending the County Court juvarious measures, connected with the admi- risdiction. nistration of justice, introduced in the short The Bill, the preamble of which states preliminary Session which preceded the that “it is expedient further to extend the Christmas Recess, as well as those now an- jurisdiction of the Judges of the County nounced for the first time.

Courts, and thereby and otherwise to faciThe indefatigable persons who, no doubt, litate proceedings in the Court of Chandisinterestedly, devote their energies to the cery,” empowers the Lord Chancellor to aggrandisement of the County Courts, and appoint such Judges of the County Courts whose vocation it is incessantly to proclaim as he shall think fit to be officers of the the superlative merits of those tribunals, Court of Chancery, in such matters, for have, it seems, succeeded in persuading such purposes, and under such regulations, Lord Brougham to press forward the Bills as the Chancellor, with the advice and already submitted to the House of Lords, consent of the Lords Justices, Master of for further extending the jurisdiction of the Rolls, and Vice-Chancellors, or any the County Courts and facilitating proceed- two of them, shall by General Orders ings in the High Court of Chancery ;” and direct. The subject-matter of the General « for giving to the Judges of the County Orders and Regulations to be made by the Courts jurisdiction in matters of arrange- Chancellor, with such advice and consent, ment and of Bankruptcy.”

is thus specified :It was clearly to be inferred from what fell from Lord St. Leonards in the state.! 1st. For enabling the Court of Chancery ment made by him in the House of Lords to send accounts and inquiries to Judges of

the County Courts, and to Masters Extraon the 16th November last, that he did not

ordinary in Ireland of the English Court of concur in the proposal further to extend the Cha jurisdiction of the County Courts, and we 2nd. For taking down evidence, and for shall be somewhat surprised if the propo- providing for the preservation of examinasition is received with greater favour by tions, &c. Lord Cranworth, who must be considered 3rd. For authorising Judges of the County upon such matters to represent the govern- Courts and Masters Extraordinary in Ireland, ment. Still, we have no doubt, it has been

to administer oaths, and take pleas, answers,

examinations, and disclaimers in causes in earnestly impressed upon Lord Brougham

Chancery, and also the examination of married that the public are anxiously desiring an women with reference to the disposal of funds increase of the County Court jurisdiction, subject to the order of the Court. and that its only adversaries are the country 4th. For enabling the said Judges and Masattorneys, and, under this conviction, it is ters to examine witnesses, and regulating the probable that the sense of Parliament will mode of such examination.

Vol. XLV. No. 1,301.

« EelmineJätka »