Superior Courts: Exchequer Chamber.—Analytical Digest of Cases: Law of Wills. 285 Court of Exchequer Chamber. any penalty shall be recovered under the proRegina v. Dale. Nov. 13, 1852; Jan. 22, fit, any portion of the same, not in any case visions of this Act, to award, if he shall think 1853. ALEHOUSE ACT.- - PENALTY, HOW APPROPRIATED. INDICTMENT AGAINST CLERK TO BOROUGH MAGISTRATES. Held, that the penalty inflicted on a publican for keeping his house open after 12 o'clock is to be paid to the treasurer of the county under the 9 Geo. 4, c. 61, s. 26, and not to the borough treasurer. A conviction was therefore confirmed against the clerk to borough magistrates for having paid onehalf of such penalty to the borough treasurer and the other to the prosecutor. UPON a conviction of a publican named Gibbon for having kept his house open after 12 o'clock, the fine of 21. 10s. had been paid to the defendant, the clerk to the borough magistrates of Tynemouth, who paid one moiety thereof over to the borough treasurer and the other to the prosecutor, and he was thereupon indicted and found guilty for not having paid the same to the county treasurer under the 9 Geo. 4, c. 61, s. 26, which enacts, that "it shall be lawful for any justice, before whom exceeding one moiety thereof, to the use of the prosecutor, and the remainder to the treasurer of the county or place for which such justice shall then act; and the said treasurer shall place the same to the credit of such county or place, and shall duly account for the same." And by s. 126 of the 5 & 6 Wm. 4, c. 76, as to the application of penalties, it is provided, that "nothing herein contained shall extend to any penalties or forfeitures recovered under any Act relating to the Customs, Excise, and Post Office, or to trade or navigation, or any branch of his Majesty's revenue. Pashley for the defendant; Otter in support of the conviction. Cur. ad. vult. The Court held, that the penalty should have been paid to the county treasurer, and confirmed the conviction accordingly. ANALYTICAL DIGEST OF CASES, REPORTED IN ALL THE COUrts. LAW OF WILLS. DEVISE. 1. Estate of inheritance or by purchase. Coalescence of life estate with estate in remainder-General and particular intent.-H., seised of lands in fee, devised them to trustees and their heirs, to the use of the heirs male of E., his sister (which E. died without leaving issue male), who should live to attain the age of 21, and to his heirs and assigns for ever. And, for want of such heirs male, or, there being such, he or they should die before severally attaining the age of 21, then to the use of C. (a niece), for the term of her natural life, for her separate use, independent of any husband; her receipt for the rents to be sufficient discharges, notwithstanding her coverture. And, after the determination of that estate by forfeiture or otherwise, to the use of the same trustees and their heirs, during C.'s life, in trust to preserve contingent uses and estates after limited, but to permit C. to receive the rents during her life. And, after C.'s decease, "to the use of the heirs male of the body of C., lawfully to be begotten, who shall live to attain the age of 21 years, and to his heirs and assigns for ever. But, in default of such heirs male, or, there being such, he or they shall die before he or either of them shall attain the age of 21 years without lawful issue, then to the use" of M. (another niece), with the like limitations as in the case of C., to M. and her heirs male. But, in default of such heirs male, &c., or, &c. (as before), then to the use of all and every the daughters, if more than one, of C., their heirs and assigns for ever, to hold as tenants in common, and not as joint tenants; and, if but one daughter, then to the use of such only daughter, her heirs and assigns for ever. And, in default of such daughter or daughters, or, there being such, all of them should die before attaining 21, without lawful issue, then to the use of M.'s daughters, with similar limitations. And, in default, &c. (interests given to other parties). Direction, that the trustees should receive the rents until the persons should be entitled to and come into possession under the said limitations; such rents to form part of the personal estate. Power to the trustees to lease for a term not exceeding the period at which C. and M. respectively would attain 21, reserving the rent to the trustees or the persons who should become entitled. Power to appoint new trustees, and devise to them jointly with the survivors of the original trustees; such survivors to transfer, so that the legal estate should vest in the new trustees. By a codicil, power was given to the trustees to employ a person named as receiver of the rents. Held, that C. took an estate in tail male, either legal or equitable. For that 1st. If the trustees took the legal estate during C.'s life, they took also the legal estate as to all the limitations down to and including the estate of M.; and therefore the estates limited after C.'s life would, if taking effect as by inheritance and not as by purchase, coalesce 286 Analytical Digest of Cases: Law of Wills. with the life estate into an estate in tail male. And that and in the occupation of C. I also give to S. that other dwelling-house and garden situate in York Street, No. 30, the whole of which premises are in the borough of Plymouth, during her natural life; but should Š. marry and have children, then, after her decease, the before-mentioned houses to descend to her children; but should S. die without issue, then the said premises to become the joint property of the children of B. I also give, provided S. dies without issue, the sum of 100%. to J., to be paid to him out of the before-mentioned premises :" Held, that S. took an estate in fee simple in the first-mentioned house; and therefore, upon her death without issue, the children of B. were entitled only to the two other houses. Doe dem. Bailey v. Sloggett, 5 Exch. R. 107. 2nd. The said estates took effect by way of inheritance, it appearing that the devisor did not intend that the estate should go over so long as there was issue male of C., and therefore the words "heirs male of the body" must have their technical effect as words of inheritance (not of description); and the words "who shall live to attain the age of 21 years, and to his heirs and assigns for ever," were to be rejected, the particular intent thereby expressed being inconsistent with the general intent. Toller v. Attwood, 15 Q. B. 929. Cases cited in the judgment: Shelley's case, Rep. 184, a.; Harton v. Harton, 7 T. R. 652; Hawkins v. Luscombe, 2 Swanst. 391; Festing v. Alten, 12 M. & W. 279; Bull v. Pritchard, 5 Hare, 567; Jesson v. Doe dem. Wright, 2 Bligh. 1, 57; Jack v. Fetherston, 9 Bligh. N. S. 257; 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 four Russ. & M. 557; Montgomery v. Montgomery, sons. 3 J. & Lat. 47. 2. Falsa demonstratio. 1 -Tenant in fee of four messuages at L. H., in the parish of F., having no other land, devised to J. in fee "all those my three messuages or tenements, with the gardens, close of land, and all other my real estate whatsoever, situate and being at L. H., in the parish of F. as aforesaid, now in the occupation of myself," C., W., N., and H. Three of the messuages were in the occupation of the devisor, C., W., N., and H.; the fourth messuage was not in the occupation of the devisor or of C., W., N., or H. Held, that the fourth messuage passed by the general words. Doe dem. Campton v. Carpen ter, 16 Q. B. 181. DUPLICATE WILLS. A fifth son being born in 1777, the testator, in 1778, executed in London, what was apparently intended to be a copy of, and was dated on the same day as, the Yorkshire will, and at the same time made a codicil in duplicate, the ostensible object of the codicil being to make provision for the newly born son. The testator's third son died in 1795. The testator died in 1808, leaving the other four sons him surviving. After his death, the Yorkshire will, with one copy of the codicil, were found in an open portfolio upon his library table, with erasures in both, the effect of which would be, in a certain event, to give to the eldest son certain estates which otherwise would have gone to the younger sons in succession. The London will, with the other copy of the codicil, drawer in the same table. In the portfolio was were found, without alteration, locked up in a also found an undated and unfinished sketch of a will. The Yorkshire will, and the codicil found with it, were proved by the testator's widow and executrix. After the death of all his brothers, the testator's fifth son brought an ejectment against the heir of his eldest brother, claiming under the limitations in the unaltered (or London) will and codicil. 3. To son for natural life and to issue of body.-Estate tail.-Testator devised as follows:-"I give and devise to my son Stephen, a small field at, &c., to hold to my said son Stephen for and during the term of his natural life: and from and after his death, then I give 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 amongst them; and, in case he shall not have any issue of his body, lawfully begotten, at the time of his death, then I give and devise the same to my heir or heirs-at-law:" Held, that Stephen, the son, took an estate tail. Doe d. Cannon v. Rucastle, 8 C. B. 876. Case cited in the judgment: Shelley's case, 1 say,-1st, whether the London will was exe cuted by the testator as a separate and independent will, or whether the Yorkshire will and the London will, with the duplicate codicil annexed to each, formed one will, the last will of the testator; telling them, that if they were satisfied that all the documents together formed one will in two parts, an alteration or obliteration in one part, was, in point of law, an alteration or cancellation of the correspond4. Construction of.-A testator devised as ing portion of the other part, and that the will, follows:-"I give to my granddaughter S., 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, 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, until he made a future will. The jury found Analytical Digest of Cases: Law of Wills. that the two wills and the codicil were intended to form one will, and that the alterations in the Yorkshire will, and in the codicil found with it, were intended to be final. Held, that these two questions were properly submitted to the jury, and that the direction of the Judge was correct in point of law. Held, also, that it was no ground for a new trial, that the Judge left to the jury as a question of fact, that which he should himself have decided as a matter of law,-unless the objection was presented to the notice of the Judge at the trial. Doe dem. Strickland v. Strickland, 8 C. B. 724. 287 of my will, to the said H. D. B., with the like limitations over as are contained in my said will and this codicil, concerning my other copyhold estates in the said county of Hertford or otherwise:" Held, that, according to the true construction of this codicil and will, the copyhold estate of Cock Corns was devised to T. B. and his issue for life. Grover v. Burningham, 5 Exch. R. 184. LEASING POWER. Will, Accustomed rents. Latest lease. when to be read as bearing date of codicil.-By will of 1761, power was given to tenants for Case cited in the judgment: Killican v. Lord served in every such lease the ancient and aclife to lease for lives, so that there were re Parker, 1 Lee's Eccl. Cas. 662. ESTATE TAIL. J. D., at the time of making her will, was entitled to two freehold estates, one in the county of Westmoreland, and the other in the county of Berks, and also two copyhold estates, one called Hempstead, and the other Cock Corns. In 1778, J. D. made her will, and devised her freehold estate, in the county of Westmoreland, after certain life estates, to her great nephew, T. B., for life, then to his issue for their respective lives, remainder to his brother, H. D. B., for life, then to his issue for their respective lives, and then to S. E. for life, and her issue, remainder to the right heirs of the testatrix. She devised the copyhold estate of Hempstead, after certain life estates, to H. D. B., for life, remainder to his issue, remainder, to T. D., and the copyhold estate of Cock Corns, after the same life estate, to H. D. B., for life, remainder to his issue, remainder to R. D. The freehold estate in the county of Berks, the testatrix devised, after certain life estates, to T. B., remainder to his issue for their respective lives, remainder to his brother, H. D. B., and his issue in like manner, remainder to S. E. for life, and her issue, and then, with limitations over in strict settlement, to certain collateral relations of the testatrix. In 1784, the testatrix made the following codicil:-" And whereas I have in and by my said will, in the disposition I have therein made of my share of the real estates in the counties of Westmoreland, after the several limitations in favour of my great nephew, T. B., shall be spent, limited the same precisely in the same manner to his brother H. D. B., I do hereby confirm the same, and further declare my mind and will to be, that, in the next disposition made in my said will, and of and to my share of the several copyhold estates of Cock Corns, &c., the said T. B. shall, after the limitations in favour of his brother, H. D. B., shall be spent, have precisely the same estate and interest therein before the subsequent limitations to T. D. and R. D., shall respectively take place as the said H. D. B. hath, in and by my said will in the estates in the said county of Westmoreland; and I do hereby give and devise the copyhold estate which I lately purchased of the widow K., and which, after my admittance to the same, I surrender to the use customed rents and heriots for the premises, or more. By codicil of 1763, reciting that another child was born to the testator since the making of his will, that his former children were provided for, and that he wished to provide for his last born child, provision was made accordingly; and the will was thereby also ratified. In a lease of 1724, the rent was 17., and a heriot, or 37. in lieu of it, was reserved, and the lease was granted on payment of a fine. By another lease, granted in 1762, between the times of making the will and the codicil, the rent was 157., and there was no heriot or fine. A tenant for life, in execution of the leasing power, granted a lease according to the lease of 1724: Held, That, although the latest lease preceding the creation of the power was entitled to greater weight than any single earlier lease, and ought to govern the decision where there was a balance of evidence, yet, where the ancient custom appeared to have been uniform, and a single lease varying therefrom was granted just before the creation of the power, the exceptional lease ought not then to govern merely because it was the latest. That whether the lease of 1724 or that of 1762 contained the ancient and accustomed rent and heriot was a question for the jury. That the will, creating the power, was not to be read as of the date of the codicil confirming the will; because the codicil was made for one specific purpose wholly unconnected with the power in question; and the rule, that a codicil confirming a will makes the will for many purposes to bear the date of the codicil, is subject to the limitation that the testator's intention be not defeated thereby. Doe dem. Biddulph v. Hole, 15 Q. B. 848. PAROL EVIDENCE. To explain devise.-Description of premises. - Falsa demonstratio. — Testator, after bequeathing money and chattels to his wife, devised as follows:-And, as to all the residue of my estates whatsoever, not hereinbefore given and disposed of, I will and desire that all that piece of land, known, &c., be divided into five equal parts; one part to be given, &c: he then devised one-fifth part to his eldest son, William, two-fifth parts to his sons Thomas and John 288 Analytical Digest of Cases: Law of Wills. with a condition, that if his wife should give birth to a posthumous child, such child should take, to the exclusion of the nephew. A child being afterwards born in the testator's lifetime, Held, that such child did not take by impli cation under the will. Doe dem. Blakiston v. Haslewood, 10 C. B. 544. respectively, and the remaining two to persons named Parkinson and Weston; all in fee. He then proceeded :-I do hereby give to my son David H. all those two cottages or tenements, the one occupied by my son John H., the other occupied by my granddaughter, together with all the appurtenances thereto belonging: devising also to David other lands, and the testator's horses, implements of husbandry, &c., 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 testator, several years before executing his will, was admitted to copyhold premises, described on the Court-rolls as "two customary or copyhold messuages, cottages or tenements adjoining or near to each other, with the yards, gardens, and homestead to the same belonging, containing 2a. 24p., situate," &c.; now or late in the occupation of, &c. (three persons named). The testator at first occupied all the premises; but he afterwards, and before the date of his will, divided one of the cottages into two dwellings by a partition on the ground floor, leaving no interior communication, but making a new outer door. One of these dwellings was occupied by the granddaughter above-mentioned, the other by Wm. H., the eldest son. He had also, before making the will, divided the second cottage in like manner; and one part of this was occupied by the son John H., named in the will, and the other by David, the above mentioned defendant, also therein named. There were no appurtenances to the tenements so newly formed, except a hovel apart from, but used with, the dwelling occupied by John, and a pantry adjoining that occupied by Elizabeth. Another part of the buildings had been formed into a cottage, and occupied by a person named Weston, before the making of the will. Held, by Lord Campbell, C. J., Patteson, and Wightman, JJ., Erle, J., dissentiente, that by the devise of the two cottages as described in the will, nothing passed but the tenements actually occupied by John H. and the granddaughter; and that the devisor remained intestate as to the residue, which therefore passed to the heir-at-law. The person who prepared the will being called as a witness, counsel proposed to ask him "what the testator said about the two cottages " on that occasion, Held by Lord Campbell, C. J., Patteson, and Wightman, JJ., that the question, in that general form, could not be put. Doe dem. Hubbard v. Hubbard, 15 Q. B. 227. Cases cited in the judgment: Doe dem. Templeman v. Martin, 4 B. & Ad. 771, 785; Thomas v. Thomas, 6 T. R. 671, 676; Roe dem. Ryall v. Bell, 8 T. R. 579; Doe dem. Humphreys v. Roberts, 5 B. & Ald. 407; Newton v. Lucas, 6 Sim. 54. 66 POSTHUMOUS CHILD." their respective assigns, for and during the term of their respective natural lives, equally to be divided between them, share and share alike: remainder to the trustees to preserve contingent remainders;" but, nevertheless, to permit and suffer my said son and daughter respectively, and their respective assigns, to receive and take the said rents," &c., "to their use during their natural lives; and, from and after the decease of my said son and daughter, or either of them, to the use and behoof of all and every the children of my said son and daughter respectively, both male and female, and their several and respective heirs and assigns, to be equally divided among them, share and share alike, as tenants in common, and not as joint tenants; and, if there shall be only one such child of my said son and daughter, to the use and behoof of such child, his or her heirs and assigns for ever; and, for default of such issue of my said son and daughter, then I give and devise the said premises" to the use of T. P in fee. The son and daughter, who had each several children, survived the testator. Held, that, on the death of the son, his moiety did not pass to his sister, who survived him, for her life, with a view to a deferred distribution, after her death, among the children of the two families per capita, but that his moiety passed at once to his children. Doe dem. Patrick v. Royle, 13 Q. B. 100. Cases cited in the judgment: Pery v. White, 2 Cowp. 777; Doe dem. Comberbach v. Perryn, 3 T. R. 484; Right dem. Shortridge v. Creber, 5 B. & C. 866. RESIDUARY CLAUSE. Testamentary estate."-P., seised in fee, by will dated 1821, devised laud to W., without words implying inheritance, "but not to be sold or mortgaged;" and then he devised lands to E. S.; and added, "also, I give, devise, and bequeath unto the said E. S. part of my household goods and chattels, and testamentary estate and effects, whatsoever name and denomination, except my clock," &c. (other personal chattels named)," which I give and bequeath unto M. H.; and the remainder of my household goods, chattels, and testamentary estate and effects, I give, devise, and bequeath unto the said M. H. and E. S., share and share alike:" Held, that the residuary W's life estate. Doe dem. Evans v. Walker, clause passed the remainder expectant upon Testator, in contemplation that his death was approaching, devised lands to his wife for life, with remainder in fee to his nephew,15 Q. B. 28. The Legal Observer, DIGEST, AND JOURNAL OF JURISPRUDENCE. SATURDAY, FEBRUARY 12, 1853. EXTENSION OF COUNTY COURT JURIS subject fully discussed. LAW BILLS BEFORE PARLIAMENT. be taken upon the question, and the whole To enable our readers to form their own opinions upon the merits of the Bills already in print, and to keep what in nautical phrase is termed "a clear deck," we subjoin an epitome of both the Bills laid before the House of Lords for extending the County Court jurisdiction. THE regular Parliamentary Session having commenced, attention is naturally directed to the progress and prospects of the various measures, connected with the administration of justice, introduced in the short preliminary Session which preceded the Christmas Recess, as well as those now announced for the first time. The Bill, the preamble of which states that "it is expedient further to extend the jurisdiction of the Judges of the County 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 1st. For enabling the Court of Chancery fell from Lord St. Leonards in the statement made by him in the House of Lords to send accounts and inquiries to Judges of the County Courts, and to Masters Extraordinary in Ireland of the English Court of Chancery. on the 16th November last, that he did not concur in the proposal further to extend the 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 upon such matters to represent the government. Still, we have no doubt, it has been earnestly impressed upon Lord Brougham that the public are anxiously desiring an increase of the County Court jurisdiction, and that its only adversaries are the country attorneys, and, under this conviction, it is probable that the sense of Parliament will VOL. XLV. No. 1,301. 3rd. For authorising Judges of the County Courts and Masters Extraordinary in Ireland, to administer oaths, and take pleas, answers, examinations, and disclaimers in causes in Chancery, and also the examination of married women with reference to the disposal of funds subject to the order of the Court. 4th. For enabling the said Judges and Masters to examine witnesses, and regulating the mode of such examination. |