Reports of that grave and learned judge, Sir John Bridgman, knight, serjeant at law, sometime chief justice of Chester to which are added two exact tables, the one of the cases, and the other of the principal matters therein contained.

Hillar. 13 Jacob. Webb against Herring.

IN an Ejectment upon a Lease made by Henry Person the 26 Octob. the 13 of King James, of a house in the Parish of St. Mary Ab∣church in the Ward of Candlewick-street: Habendum from Michaelm. last past for three years, and layd the Ejectment to be the 28 Octob. in the same year.

The Defendant pleaded Not guilty.

And the Iury found, that William Say was seised in Fee of the said Messuage, and of two other Messuages in the Parish of St. Johns in Walbrook, London, and held them in Socage. And that the 8 Octob. 1562. the said William having issue Francis his Son, and Margaret, Agnes, and Alice, by his Will in writing did devise the said Messuage in these words: I bequeath to Francis my Son all my three Houses, after the death of my Wife Barbara, and his Mother: and if Margaret, Agnes, and Alice, and either of them, do out-live their Mother and their Brother Francis and his Heirs, then they to enjoy the three Hou∣ses for their lives: and the three Houses then I give freely to my Sisters Sons, Iohn Wittinbury and Roger Wittinbury, and they to pay unto the Wardens of the Batchelors Company of the Merchant-Taylors 6 l. 10 s. yearly to be given to the poor and needy Brethren of the same Company for ever: and if the said Iohn and Roger and their Successors do deny the said payment of 6 l. 10 s. it shall be lawful that the said Wardens to enter into the three Houses, and to discharge them for ever.

William Say the Devisor dyes.

Barbara enters.

Francis, Agnes, and Alice dye without issue.

Barbara dyes.

Margaret enters.

John Wittinbury dyes without issue.

Roger Wittinbury dyes without issue, and the Lessor is Cosin and Heir to him, viz. Son of Margaret Pierson, Sister of the said Roger.

The 18 of August, 13 Jacob. Margaret dyed seised, having issue John Savage her Son and Heir, who entered: which Son, the 17 Fe∣bruary, 13 Jacob. did infeoff Edward Jackson in Fee, who the second of September, 13 Jacob did infeoff Richard Slydhurst in Fee, who the third of September, 13 Jacob. did make the Lease to the Defen∣dant for four years, who entered; upon whom the Lessor did enter,

and made the Lease to the Plaintiff, upon whom the Defendant did enter.

And prayed the Opinion of the Court, &c.

And I conceive Iudgment ought to be given for the Defendant.

But first, as to the Question that hath been made, scil. What Estate John and Roger Wittingbury shall take (if they shall take any Estate at all) by this Will? I shall not argue: for I agree, that if they have any Estate, it is a Fee-simple, in respect of the continual and perpetual charge imposed upon them for the payment of 6 l. 10 s. to the Wardens, &c. for that is to have a perpetual continuance in respect of the persons to whom it is to be payd, scil. the Poor. And also the per∣sons to pay are the two Wittingburies and their successors, who in the Exposition of the Will shall be taken for their Heirs and Assigns: and also in respect of the limitation of the payment, scil. [for ever] which in a Will makes a Fee-simple: and ••••••••s much as the charge is to continue for ever, it follows also that the Estate ought to continue, for without the Estate the charge cannot be.

But I conceive that John and Roger shall take nothing by this will, or at least that they shall take but a future Estate to begin after the death of Francis without Heir, and then their time will never come, for John Savage under whom the Defendant doth derive his Estate, is Heire to Francis, and therefore the Plaintiff nor his Lessor, being Heire to Ro∣bert Wittingb. the Survivor cannot have this house.

And to prove this, here is an Estate limited by expresse words to Francis and his Heirs, and no apparent intent by the Devisor, that the word (Heirs) shall be restrained to the Heirs of his body, unlesse by reason of the limitation of the Remainders afterwards, which cannot be (as hath been said) if Francis had a Fee-simple. But as to this I say, that the same reason may be given, when a man deviseth Land to A. and his Heires, and if he die without Heire, that it shall remain to B. and his Heires, in which case if the Devise to A. shall be restrained to an Estate in Taile, the Remainder to be is good, but no such intent can be colle∣cted against expresse words, and therefore the Remainder is utterly void, as in 19 H. 8. 8. B. where the Rule is given, that when the intent of the Testator does not agree with the Law, his intent shall be void, and this is a certain Rule. And West. 2. cap. 1. where it is provided, Quod vo∣luntas donatoris observetur, yet it ought alwaies to agree with the Rules of Law, as is proved by the 8. Assise 33. where was a Gift in Taile to two, and if one dies, that the Survivor shall have all to him and the heirs of his body, now doth the Law say that they have severall Inheritances, but the will of the Donor was, that the Survivor should have all, which being repugnant to the Rule of Law, was adjudged to be a void Clause, 35 H. 8. 6. Estates 75. Estates given to the husband and wife for their lives, the Remainder to the heires of their bodies is an Estate-taile exe∣cuted, notwithstanding the expresse will of the Donor, because an E∣state for life and of Inheritance cannot be distinct in one and the same person without a mean Estate in another. So that in Wills, if the in∣tent be against Law, they are void: And so is it if the intent be ambi∣guous and not manifestly to be collected out of the words of the Will. And in our Case no manifest intent does appear to make the Estate of Francis an Estate in Tail, C••ke 6. Rep. Wildes Case; One devised land to A. for life, the Remainder to B. in Taile, the Remainder to R. and his wife, and after their deaths to their Children, who then had two Children, the Devisor dies, and A. dies, and B. dies without Issue, and

and it was adjudged that the Children of R. and his wife should have on∣ly an Estate for life, because that by Iudgment of Law they have but an Estate for life, and if R. and his wife should have an Estate in Taile, it ought to be by the intent of the Devisor, which intent ought to be mani∣fest and certain, and so expressed in the Will, and in this case no such intent does appear, for perhaps his intent was to accord with the Rule of Law, 15, & 16 Eliz. 9. a. A. having three Houses & having three Sons and a Daughter, did devise to B. his first Son a House, paying ten pounds to his Sister, and he to enter after the death of the wife of the Devisor, and did devise to his second Son another Houses, paying to the Daughter ten pounds, and he to enter at the age of one and twenty years, and did devise the third House to the third Son paying ten pounds to his Sister, and he to enter at the age of one and twenty years, and if any of his Sons died before the age of one and twenty years, his part should be divided amongst the S••••vivors, and so every one should be heire to the other, and all of them came of age, and paid the money, and it was hol∣den that each of them had an Estate in Fee and not in Taile: and Dyer 357. Chick did devise the Fee-simple of a Messuage to A. his wife, and after her death to W. his Son, which W. was his Heir apparent. A. did enter and married again, and dyed, having Issue by him, and adjudg∣ed that A. had an Estate for life, the Reversion to W. for life, the Re∣mainder to A. in Fee: and 14 Eliz. a. One seised of Lands in Fee de∣vised them to B. and the heirs of his body, and if he died, that it should remain to A. in fee, yet B. shall have an Estate in Taile by the first words, and shall not be restrained by the last words. And Trinit. 37 E∣liz. Rot. 382. Bacon against Hill, and having three Tenements did de∣vise them to his wife for life, and then one of them to each of his three Sons, and if any did die, his part should remain to the Survivors, and if any had Issue and died before he entred, his Issue should have it, and R. one of the Sons had Issue, the wife died, and R. died, and ad∣judged that his Issue should have nothing.

[Object.] But it may be objected that Francis cannot die without heire so long and his Sisters are living, and therefore it shall be construed that the Devisor did intend only the heires of his body.

[Answer.] But it does not appear that the Daughters were of the whole blood to Francis, so that they may be heires to him; for although where a Bro∣ther or Sister is spoken of in pleading, it shall be intended of the whole blood, because a Brother of the half blood is but half a Brother, yet here when the Father onely does call them his Sons and Daughters, and is so found by the Iury that they were his Sons and Daughters, yet this is no proof that they were of the whole blood, for they are daugh∣ters to the Father by what ever wife they were had.

And so I conceive upon the whole matter, that the wife does take an Estate for life by the devise, and that the Son shall have a Fee-simple, but yet subject to this future devise, sc. if he die without heire that the Wittingb. shall have it, and so all the Will shall be good, except the limitation to the Daughters for their lives, and it cannot be intended that the Devisor did intend to prefer the Wittingb. being his collaterall Cosins before the Issue of his Daughters which Issues are of his owne body.

* 1.1And before that I argued againe, Hillar. 14 Jacob. Iudgment was given for the Plaintiff, for they all agreed, that Francis had but an E∣state-tail by these words of the Will, viz. If M. A. and A. do out live their Mother and their brother Francis and his heires, and Francis can∣not

die without heire, so long as his Sisters are living, and therefore the word (Heirs) shall not be intended Heires generall, but heires of his body, wherefore Iudgment was entred ut supra, &c.

Notes

• * 1.1

  Judgment.