The Second part of Modern reports, being a collection of several special cases most of them adjudged in the Court of Common Pleas, in the 26, 27, 28, 29, & 30th years of the reign of King Charles II. when Sir. Fra. North was Chief Justice of the said court. : To which are added, several select cases in the Courts of Chancery, King's-Bench, and Exchequer in the said years. / Carefully collected by a learned hand.

Reed versus Hatton.

IN a special Verdict in Ejectment the Question did arise up∣on the construction of the Words in a Will; The Case being this: John Thatcher was seised in Feé of the Houses in question, and did devise them to his Son Robert; in which Will there was this Clause, viz. Which Houses I give to my Son Robert up∣on this Condition, that he pay unto his two Sisters five pounds a year, the first payment to begin at the first of the four most usual Feasts that shall next happen after the death of the Testator, so as the said Feast be a Month after his death, with a Clause of Entry for Non-payment. The Testator dies; the Houses are worth 16 l. per annum; and whether Robert the Son shall have an Estate for Life only or in Fee was the Question.

This was argued by Jones Serjeant for the Plaintiff, and by Seys Serjeant for the Defendant.

And for the Plaintiff it was said, that Robert had but an E∣state for Life: 'Tis true in most Cases the Word paying makes a Fee, where there is no express Fee limited; but the difference is, viz. where the Mony to be paid is a Sum in gross, let it be equivalent or not to the value of the thing devised, the Devisee shall have a Fee, though the Estate be not devised to him and his Heirs; but if it be an annual payment out of the thing devised, as in this Case, it will not create a Fee without apt words, be∣cause the Devisée hath no loss, and therefore it hath beén held that if a Devise be made to two Sons, to the intent that they shall bear equal share towards the payment of 40 l. to his Wife for Life; the Sons had only an Estate for Life because 'tis quasi an annuel Rent out of the Profits and no Sum in gross, Cro. Car. 157. Broke Abr. tit. Estate 78.

And Colliers Case was much relied on where this very diffe∣rence was taken, and allowed that paying 25 l. in gross makes a Fee, but paying 50 s. per annum creates only an Estate for Life.

All Devises are intended for the benefit of the Deviseé, and therefore where a Sum in gross is devised to be paid which is done accordingly, in such Case if the Deviseé should die soon after, the Mony would be lost, if he should have only an Estate for Life; but in the Case at Bar the Testator by a nice calcula∣tion had appointed when the first payment should be made, viz.

not until a Month after his decease, which hath prevented that da∣mage which otherwise might have happened to the Devisee, if no such provision had béen made, Vide Hob. 65. Green's Case.

But on the other side it was said, that Robert had a Fée, for though here is a Sum to be paid annually 'tis a Sum in gross, and Collier's Case was also relied upon on this side.

It was agreed, where payment is to be made by which the De∣visee can sustain no loss, the Word Paying there will not make a Fée, but if there be any possibility of a loss there it will create a Fee, which is the express resolution in Collier's Case.

Here the five pounds is payable quarterly, and the first pay∣ment is to be made the next Quarter after the death of the Te∣stator, so as it be a Month after his decease; if then he should die a Month before Christmas, the Deviseé is to pay the whole quar∣terly payment at Christmas: So that if he should dye the next day after, instead of having any benefit, he would lose by this Devise in case it should be construed that he had an Estate only for Life.

The Court were of Opinion that a Legacy or Devise is always intended for the benefit of the party; so that 'tis reasonable to make such construction of the Will, that he may have no possi∣bility of a loss. And it hath been resolved where a Devise was to A. upon Condition to pay a Sum of Mony to B. and in case of failure that B. may enter, 'tis no Condition but an Executory Devise, and that Mary Portington's Case was denyed to be Law in the Resolution of Fry and Porter's Case in the King's Bench.

And afterwards in this Term Iudgment was given for the Defendant. For if there be a Devise to one upon Condition to pay a Sum of Mony, if there be a possibility of a loss, though not very probable that the Devisee may be damnified, it shall be construed a Fee, and such Construction hath been always allowed in Wills. If A. devise 100 l. per annum to B. paying 20 s. 'tis not likely that the Devisee should be dampnified, but 'tis possible he may; and therefore the Estate in this Case being limited to Robert, and charged with payments to the Sisters during their Lives, doth plainly prove the intent of the Testator, was that the Devisee should have an Estate in Fee simple; and Iudgment was given accordingly.

Notes

• Devise pay∣ing 5 l. per annum, 'tis a Fee.
• Ex parte Quer.
• Jones 211.
• 6 Co. 16.
• Ex parte Def.
• 10 Co. 36.
• Judgment.