Narrationes modernæ, or, Modern reports begun in the now upper bench court at VVestminster in the beginning of Hillary term 21 Caroli, and continued to the end of Michaelmas term 1655 as well on the criminall, as on the pleas side : most of which time the late Lord Chief Justice Roll gave the rule there : with necessary tables for the ready finding out and making use of the matters contained in the whole book : and an addition of the number rolls to most of the remarkable cases / by William Style ...

Gossage against Tayler.

Pasch. 1652. Banc. sup.

Hill. 1650. rot. 117.

IN an Ejectione firmae upon a Lease for years of a Messuage,* 1.1 and certain lands in Hatfield Broad-Oak in the County of Essex, upon a special verdict found the case fell out to be this, Rich. Frank seised amongst other lands and Tenements of the Messuage and lands in question, upon the mariage of his Son Leventhorp Frank with Susan. Cotele, levies a fine of the lands to the use of himself during his own life, and the life of Leventhorp his Son, and after during the life of Susanna Cotele the wife of Leventhorp, the remainder to the use of the heirs to be begotten upon the body of Susanna by Leventhorp her Husband. The question here was, whether the word heirs shall be inten∣ded the heirs of Leventhorp and Susanna his wife, or whether the estate shall be intended to be limited to the heirs of Susanna only, and that Leventhorp shall have barely an estate for life in the lands. Serjeant Glyn of Councel with the Plaintif held, That Susanna Cotele hath an estate tayl executed in the lands, and that the word heirs shall relate only to the heirs of Susanna, and not to the heirs of Leventhorp, 1. Because that here is an estate limi∣ted for life unto Susanna by an express limitation, and her heirs shall take im∣mediately after the estate for life ended, and they shall not come in as purchasors. By express Terms the word heirs is not limited to any per∣son, but it is left to the construction of the Law, and that doth apply it to Susanna, as to a person to whom Richard that setled the lands hath expressed most affection, as appears by the Deed, Lit. f. 6. Sect. 28. There is an ex∣pression of the party to whom the word heirs shall relate, but so is not here, and therefore the cases differ. In 3 Ed. 3. f. 31, 32. It is ruled that both parties have an estate tayl, because the estate is limited to both, but so it is not in our case, so those books are not against me. In our case, it doth not appear that Richard did intend to advance the Husband of Susanna, and therefore it is not reason that the word heirs should relate to him, but to Susanna his wife only, for in case of limitation of estates the intention of the party is to be considered, and doth direct the matter, and the preceding limiting of the estate to Susanna, and not to Leventhorp, doth shew that the party did mean to promote the heirs of Susanna. Lit. Sect. 27. Dyer 27. A second reason is drawn from the penning of the déed, which in the limitati∣on of it doth encline more, that the word heirs should be applyed to Susanna than to Leventhorp; for the words upon her is as much as to say of her, and then it is the same case with Littletons case. 3ly. The Intention of the Do∣nor appears to be such by the circumstances of the entire limitations, which do shew that he did intend that Leventhorp should not have such an estate whereby it should be in his power to deprive his issue, and therefore the word heirs are to be applyed to Susanna, and not to Leventhorp; for if it should be applyed to both, then Leventhorp might destroy the estate of the issue, contrary to the Donors intent; And whereas Dyer 99 is objected against me. I answer, that case is not against me, for there the word heirs is ex∣presly limited to a certain person, viz. to the heirs of the body of both of them, but so it is not in our case; and whereas Hill. 13 Iac. Lane and Pa∣nels case in this Court is also objected against me, I answer, that that case is in effect the same case with Dyer, and the question in our case came not in dispute. And the will of the Donor in deeds is to be ohserved. Lit.

22. C. Tayl. 1. rep. Shelleys case 103. 〈◊〉〈◊〉 Notwithstanding in gifts in tayl this rule holds not, so that a gift in tayl may be limsted contrary to the rule of the Common Law. And I know not of any authority in print, or wri∣ting against me; but in 13 Ed. 3. Fitz. tit. variance 81, there is an expresse authority for me, and 4 H. 4. Fitz. br. 448. & in my experience I have known many estates limited as this is in the Southern parts, & held good estates tayl, & if it should be otherwise, many estates would be shaken. Roll chief Iu∣stice. We have delivered our opinions before, against you, viz. that it was not the meaning of the donour, to apply the word Heirs to the body of Susanna only, for this construction would offer violence unto the words, as appears by Littleton, who interprets that they are to be applyed to the Heirs of both the partyes, and your reason is founded upon a wrong ground, and expresly against Litletons case; and for your second reason it is of no waight, for the words are all one as if he had said to the Heirs of the Husband and wife begotten upon the wife. 3ly. We are not to frame a meaning a∣gainst plain words, which shew the Donors intent to be against you. And the Baron cannot Bar the Estate tayl as you suppose,* 1.2 for the Feme hath an Estate for life, and if she survive she may revive the remaining Estate, and we must not consider of inconveniences, which possibly may happen a∣gainst the expresse words of the deed, and the multitude of conveyances made in this manner, are of no force to alter the Law. Ierman Iustice as Roll. That the word Heirs shall be applyed to the Heirs of both partyes, because voluntas donatoris secundum formam chartae expressa est observan∣da. Nicholas and Ask Iustices of the same opinion.

Notes

• * 1.1

  Special ver∣dict in Tres∣pass and E∣jectrue••••.
• * 1.2

  Tayl.