Disorder and most Proceedings informal and in the English Tongue in such a mean Court where are few Precedents to guide them where the Parties themselves are not empowered to draw up their own Proceedings as here above but the whole is left to the Steward who is a Stranger to the Person concerned and therefore 't is hard and unreasonable that Mens Purchases should be prejudiced by the Ignorance Unskilfulness or Dishonesty of a Steward or his Clerks that there is scarce one Customary Recovery in England which is exactly agreeable to the Rules of the Common Law that the questioning of this may in consequence endanger multitudes of Titles which have been honestly purchased especially since there can be no aid from the Statutes of Jeofailes for they do not extend to Courts Baron 'T was further urged That there was no Precedent to enforce Lords of Mannors to do as this Bill desired that the Lords of Mannors are the ultimate Judges of the Regularity or Errours in such Proceedings that there 's no Equity in the Prayer of this Plaintiff that if the Lord had received such Petition and were about to proceed to the Reversal of such Recovery Equity ought then to interpose and quiet the Possession under those Recoveries That Chancery ought rather to supply a Defect in a Common Conveyance if any shall happen and decree the Execution of what each Party meant and intended by it much rather than to assist the annulling of a Solemn Agreement executed according to Usage tho' not strictly conformable to the Rules of Law For which Reasons it was prayed that that Appeal might be dismissed and the Dismission below confirmed and ' was accordingly adjudged so The Countess of Radnor versus Vandebendy al. APpeal from a Decree of Dismission in Chancery the Case was to this effect The Earl of Warwick upon Marriage of his Son settles part of his Estate upon his Lady for a Jointure and after failure of Issue Male limits a Term for 99 years to Trustees to be disposed of by the Earl either by Deed or Will And for want of such Appointment then in trust for the next in Remainder and then limited the whole Estate in such manner as that a third part of a Moiety thereof came to the Lord Bodmyn the Appellants late Husband in Tail general with the Reversion in Fee to the Earl and his Heirs The Son died without Issue the Earl by his Will appoints the Lands to his Countess for so many years of the Term as she should live and to her Executors for one year after her Death and charges the Term with several Annuities some of which remain in being The Respondent's Father purchased part of these Lands from the Lord Bodmyn after his Marriage and had the Term assigned to him The Lord Bodmyn dyes the Appellant brings her Writ of Dower in C. B. the Respondent pleads the Term for 99 years and she Exhibits her Bill praying that she may after the discharge of the Earls Incumbrances have the benefit of the Trust as to a third of the Profits of this Term and upon hearing the Cause the Lord Chancellor saw no cause to give Relief but dismissed her Bill There were many Particulars in the Case and many Proceedings before both in Law and Equity but this was the whole Case as to the general Question Whether a Tenant in Dower shall have the benefit of the Trust of a Term which is ordered to attend the Inheritance against a Purchaser after the Marriage The Lord Chancellor Jeffryes had been of opinion with the Appellant but the Cause coming to be heard again a Dismission was decreed and now it was argued against the Decree on behalf of the Appellant that Equity did entitle her to the Thirds of this Term that a Tenant by the Curtesie is intitled to it and br the same reason a Tenant in Dower that the Term created by the Settlement was to attend all the Estates limited by that Settlement and in Trust for such Persons as should claim under it which the Appellant doth as well as the Respondents that it was in consequence to attend all the particular Estates carved or derived from the others the Term was never in its creation designed for this purpose to prevent or protect against Dower that in the Case of Snell and Clay the Tenant in Dower had it in Chancery against the Heir at Law and that this was the same Case a Purchaser with notice of that Incumbrance of Dower the Vendor being then married this was an Estate of which the Husband was full Owner and received the whole Profits that in proportion 't is as much a Trust for her for her Thirds during Life as it is a Trust for the Respondents for the Inheritance she claims under her Husband who had the benefit of the whole Trust If there be a Mortgage by an Ancecestor upon the whole Eqinty will permit her to redeem paying her proportion according to the value of her Thirds for Life and the same reason holds in this Case and there 's no Precedent in Equity to the contrary And many Precedents in favour of Tenant in Dower were cited and much Reason well urged from parallel Cases to entitle the Lady to her proportion of the Trust of this Term. On the other side 'T was said that Dower is an Interest or Right at the Common Law only that no Title can be maintained to have Dower but where the Common Law gives it and that is only to have the Thirds of that which the Husband was seized of and if a Term were in being no Feme was ever let in but after the determination of that Term that this is the first pretence set up for a Dower in Equity the Right is only to the Thirds of the Rent reserved upon any Term and 't is a new thing to affirm that there shall be one sort of Dower at Law and another in Chancery that 't is and always hath been the common received Opinion of Westminster-hall and of all Conveyancers that a Term or Statute prevents Dower that if a Purchaser can procure it the same becomes his Defence that this is what the Wisdom of our Forefathers thought fit to use and tho' some Mens reasoning may render it in appearance as absurd yet the consequence of an alteration will be much more dangerous than the continuance of the old Rules that tho' this Lady's Case be unfortunate yet the multitude of Purchasors who have bought upon full consideration and have been advised and still conceive themselves safe under this Law will be more unfortunate if the Law be broken Then ' was argued That there could be no Equity in this Case for it must be not only from the Party Appellant but also against the Respondent and that 't is not because he bought the whole Her Portion her Quality and her being a Wife create no Equity as to the Purchaser 't would perhaps be prevalent against an Heir but
and one of these is necessary to prevent a Survivorship Wherefore upon the whole it was prayed That the Judgment should be Reversed On the other side it was argued with the Judgment That the same was Legal and ought not to be Reversed for that as to the last thing stirred it must be a Tenancy in Common the words Share and Share alike imply a Division or Partition in esse or in future and it hath always been so construed The distinction between divided and to be divided hath been long since Exploded as importing no difference Then it was argued That here was only an Estate for Life given by this Clause to the Survivors that a Devise of the Share is the same with the Devise of the Land that the Share doth not signifie the Estate or Interest but the Quantity or Proportion of the Thing here are no words to vest the Inheritance in the Survivors there are proper words to give an Inheritance to the Children and there are no such proper words used to divest it out of them and to give it to the Survivors upon the decease of any one of them under Age and Unmarried The Share or Part can only be the Thing it self not the Estate in the Thing and 't is all consistent if it be adjudged an Estate for Life Besides In the last Clause when he enjoyns the Heir to permit the Devisees to enjoy their Interests and in case he do not discharge the Fee-farm Rent he gives the rest of his Shares to and amongst all other of his Children and their Heirs equally to be divided among them The adding of the word Heirs in this Clause and omitting it in the former shews the Testator to have a different meaning in the first from what he had in the last Then were cited several Cases to prove that totam illam partem carried only the Thing devised not the Interest which the Devisor had therein 3 Leon. 180 181. 3 Cro. 52. 2 Leon. 156 56. and 1 Rolls Abridg. tit Estate 835 836. 1 Cro. 356. Latch 40. and as to the 150 l. appointed to be paid for to bind Benjamin Apprentice 't was said That the same was to Issue out of the Rents and Profits And therefore upon the whole it was prayed That the Judgment might be affirmed and it was affirmed accordingly Dominus Rex Versus Episcop ' Cestr ' and Richard Pierse Esq WRit of Error upon a Judgment in a Quare Impedit in C. B. given for the King and affirmed in B. R. The Case upon the Record was to this effect Mr. Attorney General declares That Queen Elizabeth was seized of the Advowson of the Church of Bedall ut de uno grosso per se ut de feodo jure in jure corone sue Anglie and being so seized did such a Day in the Twelfth Year of her Reign present to the said Church then vacant John Tymms as by the Inrollment of c. appears that he was instituted and inducted that Queen Elizabeth died seized of such her Estate of and in the Advowson aforesaid that the same descended to Jac. 1. per quod he was seized of the Advowson of the said Church ut de uno grosso c. That the Church became void by the death of Tymms and that King presented Dr. Wilson that he was admitted instituted and inducted that King Jac. 1. died seized of such his Estate in the said Advowson and the same descended to Car 1. and he became seized and the Church was again void by the death of the then Incumbent and Car. 1. presented Dr. Wickham that Dr. Wickham died that thereupon one John Pierse not having any Right to present to the said Church sed usurpando super dict' nuper Regem Car. 1. did present one Metcalfe who was inducted that Car. 1. died seized that the Advowson descended to Car. 2. that the Church became void by the death of Metcalfe that Car. 2. presented Samways who was inducted that Car. 2. died seized and the same descended to Jac. 2. who became seized ut de uno grosso c. who being so seized de regimine hujus regni Anglie se dimisit by which the said Advowson came to the present King and Queen and they were and are now seized of it ut de uno grosso c. That the Church became void by the death of Samways and it belongs to the King and Queen to present a fit Person but the Defendants hinder them ad dampnum c. The Bishop pleads that he claims nothing in the Advowson but as Ordinary c. The other Defendant Richard Pierse pleads That the King occasione premissor ' ipsum pred' Richardum impetere seu occasionare non debet quia dicit quod bene verum est quod Car. 1. devenit fuit seisitus of the Advowson aforesaid ut de uno grosso per se ut de feodo jure modo forma pred' in narr ' pred' specificat ' and did present Wickham his Clerk who was inducted But he says further That the Church being so full of the Incumbent and Car. 1. so seized as aforesaid the said Car. 1. by his Letters Patents c. bearing date at Canbury 19 Julij anno regni sui decimo quarto quas idem Richardus hic in curia profert ex speciali gratia certa scientia mero motu for himself his Heirs and Successors did give and grant cuidam Willielmo Theckston adtunc armig ' postea milit ' the Advowson aforesaid to hold to him and his Heirs to the use of him and his Heirs for ever prout per easdem Litteras Patentes plenius apparet by virtue of which said Grant the said Theckston was seized of the Advowson in question ut de uno grosso c. And he being so seized the Church became void by the death of Wickham posteaque ac eodem tempore quo superius in narr ' pred' supponitur pred' Johannem Pierse usurpasse super pred' nuper Regem Car. 1. He the said John Pierse usurping upon the said William Theckston to whom of right it then belonged did present the said Metcalfe who was accordingly instituted and inducted by which the said John Pierse was seised of the Advowson aforesaid and being so seized and the Church then full he the said Theckston did by Indenture 18 April 18 Car. 1. release to the said John Pierse and his Heirs all his Right Title Claim c. by which the said John Pierse became seized and he dying seized the same descended to the Defendant Richard as his Son and Heir by which he became seized and then the Church became void by the Death of Metcalf and continued so void for a Year and half and more and by that Reason Car. 2. to the Church so void per lapsum temporis in defectu Patroni Ordinarij et Metropolitani jure Prerogative sue Regie eidem Car. 2. devolut ' did present Samwayes his
of making a new Presentation And in all pleadings of this sort the notice is generally alledged to be the same day or within a day or two at the most That certainly it ought to be with convenient notice But then it was urged That the six Months ought not to be from the Death of the last Incumbent if there be a person Criminal presented which the Patron doth or may know as well as the Bishop there the six Months must be from the Death but if it be upon a refusal for a Cause which lies only in the Bishop's knowledge then it must be only from the notice and that notice ought to be personal but if the Months incur from the Death the notice should be in conveient time and what that is the Court must Judge Then it was urged from Speccot's Case That this Plea is too general and uncertain that a Temporal right being concerned the Bishop ought to have set forth more particularly and distinctly the cause of his Refusal 8 Rep. 68. the certain cause of a Divorse must be shewn 11 Hen. 7. 27. 2 Leon. 169. The Ordinary is a Judge only of the matter of Fact if true not if this matter pretended be a cause of Refusal he ought to alledge that so particularly as to manifest it to the Court in which the Suit depends That 't is a legal cause of Refusal He is not a Judge whether Hodder's insufficiency in any one point of Learning be a good cause of Refusal for if it should be so the Temporal Right of Patronage would be very precarious The Court ought to have enough before them whereon to Judge of the Cause as well as that on Issue may be joyned and tried here 't is only said that he is less sufficient not that he is altogether illiterate this will put it in the Power of the Ordinary to refuse for want of knowledge in any Learning as he thinks fit as Mathematicks or Anatomy without which a Man may be well Qualified to be the Rector of a Benefice and the consequence of such Opinion will be much to the prejudice of Lay Patrons that certainty in Pleading ought to be encouraged for the prevention of the exercise of Arbitrary discretionary Power that the Wisdom of the Common-Law is to reduce things to single Questions that the Determination upon them may be plain and certain and known and the reasons of such Determinations may appear which cannot well be done if general Allegations or Pleadings be countenanced for which and other Reasons urged by the Counsel who argued with the Judgment 't was prayed that the Judgment might be affirmed It was replied on behalf of the Plaintiff in the Writ of Error that the Books were very plain that the six Months were to incur from the Death of the Incumbent and then if there were not notice in convenient and due time in order to enable the Patron to present again that this ought to come on the other side That to require Learning in Presentees to Benefices would promote the Honour of the Church nay of the Nation in general That every Man who knew this Presentee and his Ignorance even as to the Latin Tongue must acknowledge that the Reverend Prelate who refused him had done worthily and becoming the Character of his Order Family and Person and therefore 't was prayed that the Judgment should be Reversed and it was Reversed Robert Davis versus Dr. John Speed WRIT of Error on a Judgment in Ejectment in the King 's Bench for certain Lands in Hamp-Shire the Declaration was upon the Demise of Francis Cockey The Verdict finds that William Horne and Ann his Wise were seized of the Lands in Question in their Demesne as of Fee in Right of the Wife that they made and executed a Deed Covenanting to Levy a Fine thereof to the use of the Heirs of the said William Horne lawfully begotten and to be begotten on the Body of the said Ann his Wife and for default of such Issue then to the use of the right Heirs of the said William Horne for ever and a Fine was Levied accordingly to these uses that William and Ann were seized prout Lex postulat that they had Issue William Horne their Son who Died without Issue in the Life of William and Ann that she Died and William the Father and Husband Survived her that then he Died without Issue that the lessor of the Plaintiff is Sister and Heir of the said William Horne that after his Death she entred and was seized prout Lex postulat that Elizabeth Joanna and others were Co-heirs of the said Ann that their Estate and Interest came by mean conveyances to the Defendant Speed That he was seized prout Lex postulat that the Lessor of the Plaintiff entered and Ousted the said Speed and made the Demise in the Declaration and that the Plaintiff entered and was Possessed till the Defendant entered upon him and Ousted him And if it shall appear to the Court that the Desenant's entry was lawful they find the Defendant not Guilty and if c. upon this special Verdict Judgment was given in B. R. for the Defendant And now it was Argued on the behalf of the Plaintiff in the Writ of Error that this Judgment was Erroneous and ought to be Reversed for that these Lands belonged to the Heirs of the Husband by force of this Deed and Fine that this was in the Case of an Use which was to be construed as much according to the intent of the Parties as a will That if by any construction that intent could be fulfilled it ought That the intent of the parties here was plain to give this Estate to the Husband and his Heirs that uses are to be governed by Equity and that therefore the meaning of the persons concerned was to be pursued That the Woman intended to take nothing her self nor to reserve any thing but to part with the whole That here was an use by implication in the Husband tho' none could result back to the Husband because he had none before but that in this case as in that of a Will an use might by implication very well be raised to the Husband and then this might be good by way of Remainder after the Death of the Husband or create an Estate Tail in him by coupling the use implied to him for Life with that to the Heirs of his Body and that if it were not so then that it was good as a springing contingent use to the Heirs of the Body of the Husband c. and that in the mean time till that Contingency happened the same was to the use of the Wife and her Heirs And that this Construction contradicted no Rule of Law That it was no more than was allowed in case of a Will by way of Executory Devise according to Pell and Brown's Case in 2 Cro. that the Estate should remain in the Wife and her Heirs during the Life of the Husband
him nay against the Lessee himself the Owner of the Lands if he takes it before the Performance of the Condition so that these Words cannot alter the Case this is not the Case of a Will but of a Deed Executed in the Life-time of the Party the Rule and the Reason of the Rule about Exceptions in Grants will hold to this where the Grant is General the Exception cannot be rejected as void on pretence of Repugnancy The Common Law doth not care to raise or make Estates by Implication where the same Person hath an express one so is Vaughan 261 262. therefore there 's no Reason in this Case to construe the whole Term to pass by Implication in the Premisses a particular Estate being limited in the Habend ' and that not being good all is void Here 's no Purchaser Creditor or Heir in the Case but 't is a meer voluntary Act to the Defendant Then was cited 1 Cro. 376. 2 Bulstr 272. of a Copy-holders Surrender Habend ' a tempore mortis and held void wherefore upon the whole it was insisted That by the Premisses nothing passed but an Estate at Will That the Habend ' giving an Estate or Interest which was not allowable in the Law the Deed was void and passed nothing and therefore the Verdict was for the Plaintiff and the Judgment in B. R. was good and accordingly it was prayed That the Reversal of that Judgment might be reversed On the other side it was argued That to construe this to be void was contrary to the Intention of both the Parties That now the Grantor and his Wife were dead and there was no dispute about their Estates That the Premisses here passed the whole 't is to her and her Executors and Assigns 't is all that Cottage 't is together with all his Deeds concerning it the Deeds are concomitant with the Estate and when he grants the Deeds he certainly did design to pass his Interest he could never mean an Estate at Will when he names the Executors c. Then was cited the Case of Lilley and Witney Dyer 272. pl. 30. Grant of all his Interest Estate and Term Habend ' after his Death the Habend ' is void Plowd 520. 1 Bulstr 191. Bro. Grants 154. Leases 66. The Presumption that a Man can out-live a 1000 Years is a weak Pretence and void of Reason Equity is a part of the Law of the Land and here to judge this void is unconscionable and unreasonable Then was cited 1 Anderson 284 290. Grant of a Reversion Habend ' after his Death shall vest immediately the Lease imports and carries the Estate Peto and Pemberton 1 Cro. 101. Plea That he had surrendred his Lease which shews that it carried the Interest they are Synonimous Bro. tit Grant 155. A Man grants omnia firma sua shall pass his Term There 's no prescribed Form for passing a Chattel before the Stat. of Frauds A Man possessed of a Term grants it to another and his Heirs it passeth the whole so to a Man for Life it shall pass the whole Interest and shall go to his Executor Plowd 424. 3 Cro. 534. If the Habend ' were out of the Case this would pass the whole and if so the Habend ' is void 't is an old Rule and a good one Vt res magis valeat quam pereat The Lord Chief Baron Hale seem'd of that Opinion in the Case of Smith and Tutchett in scacc ' but that proved a Mistake for that Case was different and was ended by Consent as appeared by a Rule Die Mercurij 13. Die Maij Term ' Pasch 26. Car. 2. after Hale was removed into the Kings Bench. Then 't was said that there could be no ill Consequence in adjudging this to be a good Assignment the like case was never probable to happen again that here had been a Diversity of Opinions below Stairs that Equity was with the Defendant and therefore 't was prayed That the Reversal might be affirmed and it was affirmed accordingly Bennett Swayne Esq Petitioner Versus William Fawkener and John Lane Executors of Benjamin Middleton Defendants WRit of Error to Reverse a Judgment in the Kings Bench given for Benjamin in an Action against Swayne for 20 l. received by him of the Profits of a Share in the New-River c. The Case was thus Simon Middleton Esq being seized in Fee of Seventeen Thirty-six Parts of the King's Moiety in the New-River Water and having Issue eight Children viz. Hugh Sarah Hannah and Anne by his first Wife and Elizabeth Rebecca Benjamin and Hezekiah by his second Wife made his last Will and thereby amongst other things to the intent that all his younger Children might be provided for he devised Seven Thirty-sixth Parts or Shares of the King's Moiety aforesaid amongst them in manner following viz. to Sarah Hannah and Anne to each of them and their Heirs one full Thirty-sixth Part or Share of the said King's Moiety free and discharged from the Fee Farm Rent payable to the King's Majesty and of 100 l. per Annum payable to Henry Middleton deceased and his Heirs and from all other Payments and Charges whatsoever And also to Elizabeth Rebecca and Benjamin and to each of them her and his Heirs one full Thirty-sixth Part or Share of the said New-River Water of the King's Moiety only they and each of them proportionably to stand charged with the payment of the Fee-Farm Rent due and payable to the King's Majesty and with the 100 l. per Annum to Henry Middleton and his Heirs and with no other Payment or Charge whatsoever and to his Son Hezekiah and his Heirs one full Thirty-sixth Part or Share of the said New-River Water the said Share being part of the King's Moiety to hold to him and his Heirs with the Rents Issues and Profits thereof from and immediately after his Decease only proportionably to stand charged with the Payments of the Fee-Farm Rent due and payable to his Majesty and with the aforesaid 100 l. per Annum to the said Henry Middleton and his Heirs and also charged with 150 l. more towards binding out of his Brother Benjamin an Apprentice when and so soon as he shall attain to the Age of Sixteen Years but with no other Charge or Payment whatsoever And further devises That in case any of his said younger Children Sons or Daughters shall happen to die before he she or they should attain the full Age of Twenty One Years or be married then and in either of the said Cases he did will and devise that Part or Share with the Profits thereof of him her or them so deceasing as aforesaid to the Survivor or Survivors of all his aforesaid younger Children Share and Share alike chargable nevertheless with the several Payments as aforesaid but liable to no other Charge or Payment whatsoever And all the rest of his Shares in the said New-River Water he gives to his eldest Son Hugh and his Heirs so that he permit
the rest of the Shares to be enjoyed according to his Will and discharge the Fee-Farm Rent with which they are charged And in case he shall not do so he gives the said Shares he should otherwise enjoy by the Will to and amongst all other his Children and their Heirs equally to be divided amongst them Simon Middlâ—ton died seized the 20 July 1679. and after his death Rebecca having attained her Age of 21 Years died Hezekiah after seisin of his Share died under 21 Years and unmarried Anne one of the Five younger Children which Five claimed the said Hezekiah's Share by Lease and Release settles the fifth part of the Share late her Brother Hezekiah's upon her self and the Plaintiff Bennet Swayne whom she afterwards married and after to the Children that should be between them Remainder to the right Heirs of the Survivor of them two Anne died without Issue and Bennet Swayne after her death received the Profits of that fifth part of Hezekiah's Share to the value of 20 l. That Benjamin Middleton was the only Brother of the whole Blood and Heir of Hezekiah Et si c. Upon the arguing of this special Verdict the Court below was of Opinion That Benjamin was intituled to Anne's Share of Hezekiah's Part as he was Brother and Heir of Hezekiah viz. That by the Will the Fee-simple and Inheritance of a Thirty-sixth Part or Share of the New-River Water was given to and vested in each of the youger Children and that on the Death of Hezekiah one of the younger Children unmarried under One and Twenty Years of Age by the Clause whereby the Shares of the youger Children dying before Twenty One and unmarried are given to the surviving Children Share and Share alike the five Survivors became Tenants in Common and each was seized of a fifth part only for Life and not in Fee That the Reversion of Hezekiah's Share expectant on the deaths of the younger Children descended to the said Benjamin his Brother and Heir and that he on the death of Anne ought to have enjoyed that Fifth-part in Possession and therefore the Profits of it received by Swayne were due to Benjamin and Judgment accordingly given there for Benjamin And now it was argued That this Judgment was erroneous for that by Virtue of the said Devise the said Anne had an Inheritance in her part of Hezekiah's Share for these Reasons 1. It is well known and agreed That a Part or Share in the New-River is an Inheritance and therefore the Devise of all that Part or Share to any Person is a Devise of that Part and Share to such Person and his Heirs and is as much as if a Person being seized in Fee of Lands should say in his Will he devises all his Estate in those Lands to J. S. it could be no question but such a Devise would convey the said Lands to such Devisee and his Heirs 2. The Share of Hezekiah was given to him and his Heirs proportionably charged with the payment of the Fee-Farm Rent to his Majesty and with 100 l. per Annum to Henry M. and his Heirs and also with 150 l. to his Brother Benjamin and being thus charged upon his dying before Age or Marriage his Share with the Profits thereof thus charged is given to his younger Brother and Sisters the Survivor and Survivors of them Share and Share alike Then 't is observable that the Fee-Farm Rent payable to the King his Heirs and Successors is 500 l. per Annum upon which account 't would be very difficult to conceive that the Testator by this Devise of the deceased's Part to the Survivors Share and Share alike did intend to such Survivors only an Estate for Life when at the same time he subjects and charges it to and with the proportionable payment of the said yearly Fee-Farm and the 100 l. to H. M. and his Heirs which are Rent-Charges in Fee and cannot reasonably be understood to be charged on Estates given barely for Life Besides The Point here is upon the Construction of a Will and the Testators true Intent and Meaning in any part that is obscure ought to be collected out of any other part or words of the Will that may explain it Now it being plain that Hezekiah's Part was a Fee-simple and thus charged it seems to be as plain that the very Inheritance of that Part should upon his death go and remain to the Survivors Share and Share alike that is to say That they should be Tenants in Common in Fee-simple of that Part the same being thus chargable with the two Rents and with the 150 l. to Benjamin for otherwise this Devise over which was designed in their favour and for their benefit might have turned to some of their Losses and Prejudice for they might have paid the 150 l. to Benjamin and have died before they were re-imbursed out of Hezekiah's Share had the same been only an Estate for Life and it cannot easily be supposed that he intended his youngest Children by the second Wife should have a better Estate in his Shares of the New-River Water devised as aforesaid then the younger Children by the first Wife had but that their Shares in it should be equal but by this Construction Benjamin by the second Venter must carry away Anne's Share from her Sisters and Brother of the first Venter here 's no need of the common Care in construing Wills not to disinherit an Heir by general words for Hugh is disinherited by this Will whether this surviving Interest be a Fee or for Life The Intention here was to make an equal Provision for all the younger Children the Part and Share of the Person dying is the Inheritance in the Part and Share of the Person dying in the New-River Water The three Sisters were to have their Shares discharged of the Fee-Farm Bent but if this be only an Estate for Life then those who were designed to have the least benefit by the Will are to have the greatest for they are Heirs to Hezekiah whereas the Children by the first Venter seem to be most favoured by the Will because they are to have their Bequests free from those Incumbrances The Testator recites his own Scisin in Fee of so many Parts and Shares and then devises those Parts in Fee how can this Clause of Limitation to Survivors be construed to mean otherwise then that the whole Fee of that proportion should survive The Cases cited in Rolls on the other side are only Devises of the Land and not of his Share Then 't was said That here was no Tenancy in Common that 't is true equally divided and equally to be divided make a Tenancy in Common but 't is upon the account of the word divided that to two equally will not be so construed 1 Aâ—d 29. and if the words equally will not why should Share and Share alike these words do not shew any partition of the Estate in Fact nor in the Intention of the Testator
the Sentence given by the Constable and Marshal in the Suit before them concerning a Coat of Arms Rot. Claus 12 Rich. 2. m. 4. Appeal by Bond vers Singleton 't is in a Cause of Arms in our Court before our Constable and Marshal wherein Sentence was given by them 1 pars Pat. 17 Rich. 2. m. 12. Thus it appears by a Commission for the Execution of the Office of Constable of England Committimus vobis officium hujusmodi Constabularii ad querelam Thome Moor in hac parte una cum Edmundo de Mortimore Mareschallo Anglie audiendum secunda pars Patent ' 48 Edw. 3. m. 20. in dorso As also by a Claim at the Coronation of H. 5. before Beauchamp Earl of Warwick then Lord Steward John Mowbray Earl Marshal Son to the then Duke of Norfolk claimed under a Grant in 20th of Rich. 2. of the Office of Earl Marshal of England to hold Court with the Constable and to hold Pleas before them and Copies of these Precedents were said to have been ready in Court Further to prove the joynt Authority were cited several of our Old Books 48 Edw. 3. fol. 3. in a Case of Debt upon an Indenture by which P. was retained by the Defendant with two Squires of Arms for the War in France Belknapp said of such Matter this Court cannot have conusance but 't is triable before the Constable and Marshal In the Case of Pountney and Bourney 13 Hen. 4.4 the Court of King's Bench call it the Court of the Constable and Marshal And in 37 Hen. 6.3 upon another occasion Prisot said this Matter belongs to the Constable and Marshal And Coke 4 Inst 123. says that they are both Judges of the Court and that the Constable sometimes gave Sentence is no Argument that the Marshal was no Judge with him it only proves him the Chief who in most Courts doth usually give the Rule Nor is the Earl Marshal's receiving Writs from the Constable to execute his Commands any Argument that he sits there only as a Ministerial Officer and not as a Judge for he may be both as in many Corporations Mayors are Judges of the Court and yet have the Custody of their Goals too and so have the Sheriffs of London their Compters tho' they strictly are Judges of their several Courts 2. During the Vacancy of the Earl Marshal's Office the Constable alone had the Judicature as in 11 Hen. 7. on Holy-rood-day the Earl of Darby being then Constable of England sate and gave Judgment alone in a Cause between Sir Thomas Ashton and Sir Piers Leigh upon a Coat of Arms but this needs no Proof since 't is contended on the other side that the Court doth belong only to the Constable 3. 'T was argued that the Earl Marshal hath set alone and given Judgment and to prove that it was said this Court was held when there was no Constable before Thomas Howard Duke of Norfolk Lord High Treasurer and Earl Marshal of England who Died 16 Hen. VIII and next after him before Charles Brandon Duke of Suffolk then Earl Marshal who Died 37 Hen. VIII after him the Court was held and Sentences given by Thomas Howard Duke of Norfolk who Died in 1512. and after him in the 30 Eliz. the Earl of Essex sat as Earl Marshal and heard and determined Causes judicially and the chief Judge sat then as Assistant with him in Court and then after the Death of the Earl of Essex it was in Commission to my Lord Treasurer Burleigh and others and then the great Oase of Sir F. Mitchell was heard and determined at which several Judges assisted and the Sentence of degradation was executed upon him 26. April 1621. and then was Cited the Case of Pool and Redhead 12 Jac. 1.1 Roll's Rep. 87. where 't was held that the proper remedy for Fees of Knighthood was to sue to the Earl Marshal and Coke says in the same Case the Common-Law does not give remedy for precedency but it belongs to the Earl Marshal And since that in Parker's Case which was 20 Car. II. Syd 353. the Earl Marshal was agreed to have the absolute determination of matters of Honour in the Court of Chivalry as much as the Chancellor hath in matters of Equity And the Error on the other side was occasioned by not distinguishing between the Ancient Jurisdiction of this great Court at the Common-Law and the Jurisdiction given to the Constable and Marshal under those names by Statute for the latter cannot be executed by one alone and that distinction answers the Authority in 1 Inst 74. which grounded the mistake that there is no Court of Chivalry because there 's no Constable whereas the reason why in Sir Francis Drake's Case the not constituting of a Constable silenced the Appeal was from the 1 Hen. IV. Cap. 14. which orders all Appeals of Murder committed beyond Sea to be before the Constable and Marshal by name But the Ancient Jurisdiction of this Court by prescription wherein both the Constable and Marshal were Judges severally or together and which each of them did and could hold alone remains still as much in the Earl Marshal alone as it ever was in him and the Constable Then it was argued that no Prohibition lay to this Court because none had ever been granted and yet greater occasions then now can be pretended by reason of the large Jurisdiction which this Court did in Ancient time exercise many Petitions were frequently preferred in Parliament Complaining of the Incroachments of this Court in Edw. I. Edw. III. Rich. II. Hen. IV. and Hen. VIth's time as appears in 4 Inst. 125. 2 Hen. IV. num 79. and 99. 1 Roll's Abridg. 527. and yet no Prohibition granted or moved for which according to Littleton's Text is a very strong Argument that it doth not lie The Statute of 13 Rich. II. 2. is an Argument against it because after several Complaints of the Incroachments of this Court another remedy is given which had been needless if this had been legal nay it shews the Opinion of the Parliament that there was no other way of relief and soon after the making of this Statute in the same Reign two Privy Seals were sued upon it in the Case of Poultney and Bourney 13 Hen. IV. 4. 5. Besides this might be grounded on the Antiquity and greatness of this Court for as to the subject matter of it 't is by Prescription a Court for determining matters of Honour to preserve the distinction of degrees and quality of which no other Courts have Jurisdiction and the right and property in Honours and Arms is as necessary to be preserved in a Civil Government as that in Lands or Goods Then 't was urged that this Court hath Jurisdiction even of Capital Offences its extent is large 't is throughout the Realm even in Counties Palatine even beyond the Seas its manner of proceeding is different in a Summary way by Petition its trial of Fact may be by Duel as is 4
good for them and that they had the like Power of Appeals Writs of Error and Impeachments c. and that the Cognizance of such Appeals in England would produce great inconveniencies by making poor people to attend here whereas they might with less trouble and expence have Justice at home that this did agree with the reasons of that Ancient Statute 4 Inst 356. that persons having Estates in Ireland should Reside in that Kingdom else half of their Estates should go to maintain the Forts there That this practice of receiving Appeals here would be vexatious to the people of that place and that no Court could have Jurisdiction but by grant or prescription and that there could be no pretence for either in this place Then was it ordered in these or the like Words Whereas a Petition and Appeal was offered to the House the Day of last from the Society of the Governour and Assistants London of the New Plantation in Ulster in the Kingdom of Ireland against a Judgment given by the Lords Spiritual and Temporal of Ireland in Parliament there Assembled on the day of last upon the Petition and Appeal of William Lord Bishop of Derry against the Decree or Orders made in the said Cause in the Court of Chancery there Whereupon a Committee was appointed to consider of the proper method of Appealing from Decrees made in the Court of Chancery in Ireland and that pursuant to the Orders of the said Committee and a Letter sent to the Lords Justices of Ireland by Order of this House several precedents have been transmitted to this House by the said Lord Justices Copies whereof were ordered to be delivered to either side After hearing Counsel upon the Petition of the said Society of London presented to this House praying that they might be heard as to the Jurisdiction of the House of Lords in Ireland in receiving and judging Appeals from the Chancery there as also Counsel for the Bishop of Derry after due Consideration of the Precedents and of what was offered by Counsel thereupon It is ordered and adjudged by the Lords Spiritual and Temporal in Parliament Assembled That the said Appeal of the Bishop of Derry to the House of Lords in Ireland from the Decree or Orders of the Court of Chancery there made in the Cause wherein the said Bishop of Derry was Plaintiff and the said Society of the Governour and Assistants London of the New Plantation in Ulster in Ireland were Defendants was coram non judice and that all the proceedings thereupon are null and void and that the Court of Chancery in Ireland ought to proceed in the said Cause as if no such Appeal had been made to the House of Lords there and if either of the said Parties do find themselves Agrieved by the said Decree or Orders of the Chancery of Ireland they are at liberty to pursue their proper Remedy by way of Appeal to this House Sir Caesar Wood alias Cranmer versus Duke of Southampton APpeal from a Decree in Chancery the Case was thus Sir Henry Wood the Appellant's Unkle makes a Settlement in Consideration of a Marriage to be had between his Daughter Mary and the Duke c. to the uses following i.e. in Trust to Receive and Pay out of the Profits 450 l. a Year to the Lady Chester for the Education and Maintenance of his Daughter till twelve years of Age then 550 l. a year till Marriage or Seventeen years of Age which should first happen and in Trust to pay the Residue of the Profits to the Duke after Marriage he first giving Security to the said Trustees to provide Portions and Maintenance for the Daughters of the Marriage equal to the Sum he should receive and in case there should be none then the same Money to remain to the Respondent and if the said Mary should die before Marriage or Age of Seventeen years to such Uses as Sir H. W. should appoint And if Mary after Sir Henry's death die under Sixteen the Respondent then unmarried to any other Woman or after and before Seventeen the Respondent then living and unmarried or if before Seventeen she should marry any other or if she should refuse the Respondent then 20000 l. out of the Profits to the Duke But if the said Marriage shall take effect after Mary's Age of Sixteen years and she shall have Issue Male by the Respondent then for the better Settlement of the Premisses upon the Issue Male and a more ample Provision and Maintenance for the Respondent and his Wife and the longest Liver of them in Trust for the said Duke and Mary for and during their Lives and the Life of the longer liver of them and after their Deaths to the first Son c. in Tail Male and for default of Issue Male to the Daughters And for default of such Issue in Trust for such Persons only as Sir Henry should appoint and in default thereof to the right Heirs of Sir Henry Sir Henry W. at the same time makes his Will tho' dated after the Settlement reciting that he had settled the Premisses upon the Duke and Mary for their Lives and the Life of the Longer liver of them c. and confirms it and in Case the said Martiage should not take effect according to the Limitations of the Settlement or if the said Respondent should die without Issue by Mary or if he have Issue by her and that Issue die without Issue then the Remainder to Mary for Life and afterwards to her first Son and after several mediate Remainders then to the Appellant for Life c. and after to Thomas Webb c. Sir Henry Wood dies the Marriage between Mary and the Duke afterwards takes effect upon her arrival to years of Consent and they lived in that state till she was near Seventeen years of Age and then she dies without Issue The Court of Chancery decreed the Profits of the Estate to the Duke for Life It was argued for the Appellant That here was a precedent Copulative Condition that if the Marriage take effect after Sixteen and there be Issue then to the Duke and neither of these being in the Case the Decree is not consistent with the positive words of the Settlement for that the Duke was to have it upon no other terms That by this Settlement the Duke was thus provided for 1. If the Marriage did not take effect by Mary's refusal or taking another Husband the Duke was to have 20000 l. 2. If the Marriage did take effect and Issue was had then the Duke was to have an Estate for Life but not otherwise that the words are plain and certain that there must not only be a Marriage but Issue Male between them that tho' it should be agreed to be a good Marriage within the intention of the Settlement she living till after Sixteen years of Age yet when a Condition Copulative consisting of several Branches as this doth is made precedent to any Use or
that this was never designed to take effect as an use to be vested immediately and it was no more then if the Deed had declared the use to be after the expiration of twenty Years or at other future time to the Heirs of the Body of William Horne and for default of such Issue to his right Heirs and that such time had happened the use would have vested in the Heirs of his Body or in his right Heirs if he had Died before that time That 't is true there must be a person capable of taking at the time when the Contingency happens and so there was here at the time of his Death That it could never be intended that the Heirs should take immediately for that then there was no such person in being there could be no Heirs during his Life That this was like the Case of Webb and Sir Caesar Cranmer where the Trust of the Estate during the Life of the Duke of Southampton was adjudged to remain in the Heirs of the Devisor the Duke himself not being capable to take it That here being no person able to take under this Deed and Fine during the Husband's Life it shall be construed to remain as it was before till that Life ends and then the use ought to take effect for otherwise both the Deed and Fine are to no purpose they are all in vain and the intent of the parties to it is defeated And there were Cited the Lord Paget's Case in 1 Anderson and Woodlett and Denny 2 Crook 439. and 1 Leon 256. On the other side it was argued with the Judgment that this Deed and Fine can raise no use to the Heirs of the Husband according to the Rules of Law It was insisted That if Husband and Wise do levy a fine of the Wife's Land and no uses are declared or such uses are declared as are void and can never take effect such Fine is to the use of the Wife and her Heirs that in such case the Estate remins ' as it was or if the Fine Operates any thing it shall be for the benefit of the party to whom it did belong before Then it was urged That this was designed to raise an use immediately to the Heirs of the c. and that there was no person capable of taking at the time of levying this Fine the common Maxim in the Law proving it quod nemo est heres Viventis that the name and nature of an Heir import a successor after Death that this being designed to raise an use ex presenti and no person being capable of taking at that time the same must be void That this is the case of a Deed executed in the Life-time of the parties and not a Will where large allowances are often made in favour of supposed intentions by reason that persons are often surprized by Sickness and presumed to want the assistance of Counsel but the Rules of Law are always allowed to govern in Construction of Deeds Then it was urged that nothing was ever designed to the Husband himself by this that no words in the Deed can favour such a presumption that this must either work as an Estate in present or by way of remainder if the latter then by the known Rules of Law there must be a particular Estate to support it and such particular Estate must be either expressed or implied here is none expressed and if implied it must be in the Wife and if in her then she dying before the Husband her particular Estate did determine before the remainder could take place and consequently by all the Rules of Law it can never take place and no particular Estate can be implied in or for the Husband for that there is nothing said shewing such intent and if the Construction of Law be to prevail then as was urged before that is in favour of the Wife But here it was plainly designed to take effect immediately and therefore void because there was no person in being capable of taking at the time the Estate was intended to vest and no uses are to be executed by the State which are limitted against the Rules of the Common-Law Chudleigh's Case 1 Rep. 129. if the limitation of an use be at this day to A. for Years and afterwards to the use of the Heirs or Wife of B. which shall be this is void because 't would have been void if limitted in possession Dyer 190. the Earl of Bedford's Case in Popham 3 4. and 82. resolved in like manner to be void because would have been so in an Estate conveyed at Common-Law And all that can be objected is that then this is all void which is no more than may be pretended upon every imperfect conveyance but here the Case is in a Court of Law and the Defendant is a Purchaser who hath been Thirty Years in Possession tho' that doth not appear in the Case And it was said That as to the Notion of a springing contingent use 't is hardly intelligible in it self and by no means applicable to this Case because here are no words in this Deed that carry any relation to a future time or Contingency and the Objection is only this That the Conveyancer was mistaken in his Judgment or that the parties knew not what they meant or that they meant to create such an Estate and in such a manner as the Law will not allow and neither of these are Reasons sufficient to prevail for the Reversing of a Judgment given according to the Rules of Law by which Men's Inheritances have all along been governed and upon which many Estates do now depend 'T was further urged That the contrary Opinion which must be advanced to annul this Judgment would reder the Law and Men's Conveyances as doubtful and uncertain as last Wills and Testaments and submit Men's Titles to the Arbitrary Power and Will of those that shall Judge of them It is to impower them to suppose intentions where not expressed and to raise uses by Implication where they were never designed And in short 't will destroy all the difference between good and bad Conveyances and enable Men to limit uses and raise Estates contrary to and in different manner from what the Law hath hitherto allowed it will render Purchases more uncertain than they are at present and that 's more than enough already and the consequence must be to produce a confusion in property c. wherefore upon the whole it was prayed That the Judgment might be affirmed and it was affirmed accordingly Watts al' versus Crooke APpeal from a Decree in Chancery The Case in short was this That Peter Crooke and Elizabeth his Wife who was Sister of the half Blood to George Watts claimed to have an equal share with John Watts and Elizabeth Camfield who were Brother and Sister of the whole Blood to the Deceased of his Personal Estate and a Decree was made in Chancery in favour of Crooke and his Wife It was argued on
Appellants were relieved Richard Carew who married Penelope would have no Portion with her 'T was answered That that could not alter the Case the Agreement and Intention of the Parties being the most considerable Matter and besides Richard enjoyed the Estate during his Life without impeachment of Waste And as to the Debts 't was answered That those were no Ingredients in the Question however there would be 4000 l. paid towards it and the Personal Estate was more than enough to pay the residue For which and other Reasons 't was prayed that the Dismission might be Reversed On the other side it was insisted on with the Decree 1. That the Limitation by the Settlement in July 1674. to the Heirs of Penelope upon payment of 4000 l. by them to the Heirs of Richard Carew within Twelve Months after the death of Richard and Penelope without Issue at the time of the decease of the Survivor of them is a void Limitation the Fee-simple being before limited to Richard and his Heirs and so not capable of a further Limitation unless upon a Contingency to happen in the Life of one or more Persons in being at the time of the Settlement which is the furthest that the Judges have ever yet gone in allowing these Contingent Limitations upon a Fee and which were the Bounds set to these Limitations by the late Lord Chancellor Nottingham in the Case of the Duke of Norfolk that tho' there were such Expressions as had been read on the other side yet the Bounds set by him to these Limitations were only dependent upon Life or Lives in being and never as yet went any further And if they should be Extended and allowed to be good upon Contingencies to happen within Twelve Months after the Death of one or more Persons they may be as well allowed upon Contingencies to happen within a Thousand years by which all the Mischiefs that are the necessary Consequents of Perpetuities which have been so industriously avoided in all Ages will be let in and the Owner of a Fee-simple thus clogged would be no more capable of providing for the Necessities and Accidents of his Family then a bare Tenant for Life 2. If this Limitation were good 't was urged That the Estate limited to the Heirs of Penelope was virtually in her and her Heirs must claim by Descent from her and not as Purchasors and by Consequence this Estate is effectually barred by the Fine of Penelope the design of limiting this Power to the Heirs not being to exclude the Ancestor but because the Power could not in its nature be executed until after the decease of the Ancestor it being to take effect upon a Contingency that could not happen till after that time and this Bill and Appeal was not only to have the said Richard Carew who married Penelope to have not one Farthing Portion with his Wife but to make the now Respondent Sir Richard Carew to lose the 4855 l. which his Father Sir John Carew paid as charged on the Lands in question For which Reasons and many others well urged about the Mischief and Danger of Perpetuities and their Increase of late years to the intangling and ruine of many Families it was prayed that the Decree of Dismission might be affirmed but the same was Reversed Sir William Morley Knight of the Bath Plaintiff Versus Peter Jones Defendant WRit of Error to Reverse a Judgment in B.R. in Ejectment upon the Demise of Bellingham upon a Special Verdict which finds That Anne Bowyer Spinster was seized in Fee of the Mannor of Frencham that the said Anne and Edward Morley Esq and Sir William and J. Wells ante tempus quo c. viz. 22 July 1664. did make and as their Deed deliver a certain Indenture with their Seals sealed whereby the said Anne demises the Mannor aforesaid to Sir William and Wells and their Executors for one Month from the Day next before the Day of the Date that Sir W. and Wells entred and were possessed that they the 23d of July in the said Year sealed and as their Deed delivered another Indenture with their Seals sealed whereby the said Anne reciting a Marriage intended between Anne and Edward and that Edward had agreed to settle a Jointure out of his Lands to the value of 300 l. per Annum and that the said Anne had agreed in case the Marriage took effect and a Jointure were made as aforesaid to settle the said Mannor on him and his Heirs and to particular Trusts after-mentioned until the same be performed She the said Anne in consideration of the Marriage and in performance of the Agreement on her part Bargains Releases and Confirms to Sir W. and Wells their Heirs the said Mannor and all her Right c. and the Reversion c. in Trust for the said Anne and her Heirs until the Marriage take effect and assurance of a Jointure be made as aforesaid and after such Marriage and Assurance of such value as aforesaid then to the use of Edward and his Heirs c. Then the 1st of August 1664. a Marriage was had then the 29th of Jan. 1665. a Deed is Executed between the said Edward and Anne of the first part and Young and Truster as Trustees on the other part reciting that a Fine is already acknowledged and agreed to be levied in due Form of Law next Hillary Term between the said Young and Truster Plaintiffs and the said Edward and Anne his Wife of the said Mannor of Frencham and thereby declared that the said Fine should be to the use of Edward and his Heirs Two days after the Execution of that Deed and before the Fine levied viz. 31 Jan. 1665. another Writing indented was made and executed under Seal between the said Edward of the one part and the said Anne of the other part whereby they both in Consideration of the said Marriage and other good Causes did Covenant Consent and Agree to revoke all former Grants Bargains Contracts Writings Covenants and Obligations made or done between them or any other for them until the said Edward had performed the Agreements in the said Marriage Settlement on his part both in Law and Equity and that in default thereof it might be lawful for the said Anne and her Heirs to enter into the said Mannor and Land conveyed by the said Settlement without the lett of the said Edward and his Heirs Afterwards the Fine was levied Octabis Purificationis which was the 9th of February in that Term And afterwards by Indenture between the said Edward Morley of the one part and one Henry Doble of the other part dated 9 July 1666. the said Edward in consideration of 600 l. Mortgages the said Mannor to Doble and his Heirs Then the Money not being paid by Edward Morley to Doble Doble did 2 June 1676. in consideration of 600 l. with Interest paid by Sir William Morley conveys the said Mannor to one Thomas Young that Edward Morley did never convey the Lands agreed
is aliud testamentum i.e. a general Testament The 2 Rich. 3. fol. 3. is directly thus The Defendant pleads one Will the Plaintiff replies another and exception taken because he did not traverse the former but held needless to do so quia per ult ' testamentum ut placitatur generaliter primum testamentum revocatur in omnibus and it cannot be pretended that this might be the same Will written over again for if so it could not be aliud it would be the same these are not quibbles upon words for can it be said that this is a Devise by the last Will of Sir H. when there 's another Nor is it an Objection that the Contents do not appear for the Will belongs not to the Heir to keep and consequently not to shew in pleading he is not bound to a profert 't is enough that there was a subsequent Will And as the latter may confirm or be consistent with the former so it may not be so and the consistency is not to be presumed especially against an Heir at Law and in possession In the Case of Coward and Marshal 3 Cro. 721. the Substance of both are declared and thereby they appeared to be consistent and consequently no Revocation here Eadem mens sic testandi the same intent of disposing his Estate the same way can never be thought to continue for then there had been no occasion of making another Will If this be not a Revocation 't is an act void and to no purpose which is never to be intended Then 't was insisted on That the bare act of making and publishing another Will is a Revocation and the finding of the Contents unknown is void If this be not a Will 't is a Codicil and that is contrary to the finding of the Jury for the Verdict mentions a second Substantive independent Will without reference to the former which second Will is a Revocation and therefore 't was prayed that the Judgment should be reversed It was argued on the other side in behalf of Mr. Nosworthy That this was no Revocation that here had been a great stir about nothing for that nothing appeared against his Title that a Man may make a Will of several things at several times and they both shall stand that a deliberate Will being made the Contents whereof are known shall never be revoked by that which is not known nothing can be judged upon that which doth not appear and consequently it can never be judged to be a Revocation Here 's another Will and nothing is given by it nothing is found to be given by this subsequent Will The form of entring the ancient Judgments was Quibus visis lectis auditis per Curiam plene intellectis now what is here read to make a Revocation 2 Rich. 3. fol. 3. is with the Judgment for there 't is replied that he made another Executor there are the Contents pleaded sufficient to maintain his Count and answer the Defendant's Bar the Book is per hoc quod alius Executor nominatur Then was cited 1 Cro. 51. the Reason given is quia in dubiis non presumitur pro testamento and here being a good Will at the most the other is doubtful 1 Cro. 114 115. Several Wills of several things may be made And the same Book 595. 10 Car. 1. which Refolution Serjeant Maynard in arguing this Case below said that he heard in that Court of Kings Bench 'T is the Subject Matter of the Wills and the Repugnancy which makes the Revocation In this very Case in the Exchequer upon an English Bill 't was held by Hale to be no Revocation 't is in Hardres 375. Coke upon Littleton which hath been quoted Comments upon these words several Devises and if there be no Devise in the second there can be no sense or meaning in it and consequently unless some meaning appear it can never be an Evidence of a change of his Mind as it might be a Revocation so it might be otherwise and he that will have it to be a Revocation must prove it to be such No Man can affirm that every Will must necessarily be a Revocation of a former for the second Will might be of another thing as Goods or of another parcel of Land or in confirmation of the former If in these and many other like Cases a latter Will is no Revocation of a former how can it possibly with justice be concluded that a latter Will without Contents Purport or Effect shall be a Revocation of a former And tho' the Jury have in this Case believed the Witnesses and found that another Will was made it may be of dangerous Consequence to encourage and construe this a Revocation without knowing the Contents for no Will can be secure against the swearing of a new Will if there be no necessity of shewing it or proving what it was For which and other Reasons it was prayed that the Judgment might be affirmed and it was affirmed Sir Simon Leach al' Plaintiffs Versus J. Thomson Lessee of Charles Leach Defendant WRit of Error to Reverse a Judgment given in B. R. upon a Special Verdict on a Trial at Bar in Ejectment brought by Thomson on the Demise of Charles Leach the Special Verdict finds that Nicholas Leach was seized of the Lands in question in his Demesne as of Fee and being so seized 9 Nov. 19 Car. 2. he makes his last Will and thereby devises the Premisses to the Heirs Males of his Body lawfully to be begotten and for default of such Issue to Simon Leach his Brother for his Life and after his Decease to the first Son of the Body of the said Simon lawfully to be begotten and the Heirs Males of the Body of such first Son lawfully to be begotten and for default of such Issue to the second c. and so on to the eighth Sons of all and every other Sons c. and for default of such Issue to Sir Simon Leach his Kinsman Son and Heir of Simon Leach of Cadley in Com' Devon ' Esq deceased and the Heirs Males of his Body and for default of such Issue to the right Heirs of him the said Nicholas for ever Then they find That the Lands in the Declaration and those in the Will are the same that afterwards viz. 10 Apr. 20 Car. 2. Nicholas died seized without Issue of his Body that after his Death the said Simon his Brother and Heir Entred and was seized in his Demesne ut de libero tenemento for term of his Life Remainder to the first Son of the Body of the said Simon the Brother and the Heirs of the Body of such first Son lawfully to be begotten and for default of such to the second c. Remainder to Sir Simon in Tail Remainder to the said Simon the Brother and his Heirs belonging That Simon Leach the Brother being so seized afterwards viz. 20 Aug. 20 Car. 2. took to Wife Anne the Daughter of Vnton Crook that
then 't was said That the prerogative to present by Lapse is not in the Statute and yet that is admitted so that the omission of it there can be no objection this is a prerogative that follows a Vacancy occasioned by the exercise of the prerogative for such it is to make Bishops The King first made them by the donation of a Ring and Staff then by a Conge d'Eslier the King gave licence to choose and approved the person chosen tho' not by absolute donation as before By the 25 Hen. 8. the Crown is restored to its ancient Prerogatives and there are Letters Missive directing the choice of such a person In Wright's Case in 3 Cro. and Moore then was the first time it came in question and it was debated and considered and the Judgment upon deliberation settled it with the King And as to the Objection that in Dyer 228. 't is said That he and the rest of his Brethren thought otherwise that point was nothing to the Case then in question But however 't is observable that the Queen presented Anno 6. and the Patron did not dispute it as appears in Woodly's Case And in Owen's Rep. 't is said that several Presidents in Henry the Eighth's time were searched 'T is true that in 11 Hen. 4.67 and 21 Edw. 4.33 the King did not intitle himself by virtue of his Prerogative but by reason of the Temporalties being in his hands those Cases can influence nothing in this matter because the King's Prerogative consists not in ousting of himself but of a Stranger it is to present in the turn of another upon such a Vacancy but not where he is intituled himself there he presents by virtue of his own Interest As to the Objection That the Old Books are silent about this Prerogative 't was answer'd That before the Statute of Provisors 25 Edw. 3. the King was defeated of his Prerogative by reason of the Pope's Provisions and therefore the King could not have it whereas 't is the Exercise of his Prerogative of Promotion that gives him this Prerogative of presenting upon this Vacancy by such Promotion and therefore that Statute was made to prevent all Incroachments and tho' it was made to that very purpose yet the Clergy being then so strongly united to the Pope's Interest the Kings of England could not use that Prerogative and frequent Usurpations were made upon the Crown till the Pope's Supremacy was denied The 41 Edw. 3.5 shews that there were such Usurpations 7 Hen. 4. cap. 8. complaint is made of them and 5 Hen. 4. num 95. Cotton 458. And thus it continued till the Statute about the Supremacy 28 Hen. 8. the Kings are to make the Bishops and then consequently in point of Law the right of presenting was restored Then 't was urged That none of the old Books do mention the King 's right to present by Lapse except in Cawdries Case where notice is taken of a Case in the time of Edw. 3. but that is not to be found Bro. tit Presentment 61. is as much Authority for this as that in Cawdries Case is for the Prerogative to present upon Lapse And this right in question having been enjoyed so long should not now have been questioned In 5 Edw. 2. Maynard 148 198. there is one Instance of the Patron 's presenting again but then Provisions were common and usual Walsingham 1313. so that supposing the Patron did in those times present the King was not concerned because 't was then only the Pope's right as was thought and the Pope might be ignorant of the matter And from thence 't was argued that the practise of those Times cannot be urged as Arguments in the present Case Then 2. it was urged That the King having this Prerogative he is not debarred of it by the Dispensation to hold it c. nor by the Act of Parliament nor by the King's Confirmation of it The King by that did transfer no Right to the Incumbent but meerly did continue him in and there was no Avoidance but the same is suspended and had the Incumbent died or resigned during this time the Church had been void by such Death or Resignation and had debarred the King of his Prerogative The Incumbent still remains Incumbent for the time by force of his first presentation and so the Dispensation doth prevent the Avoidance He is not in by force of any Title which the Dispensation gives him but of his old Title Jones 91. 161. Vaughan 18. 3. Then 't was argued that the Act of Parliament for making this new Parish did not alter the Case 'T was said that the making of this a Rectory in this manner doth make it subject to this prerogative and that it was by no means the intent of the Act to debar the prerogative It is made a Parish and Rectory such as others are subject to the EcclesiasticalLaws as well as any other Benefice under the obligation to Residence and liable to the Common Jurisdiction and Censure of the Ordinary and 't is to be made vacant by the same ways and means as other livings are the words Death or any other Avoidance prove it to be so Lapse will prevail upon this Rectory and that cannot be but because 't is made a Rectory and presentative It cannot be doubted but that the next Avoidance might have been granted over by the Bishop of London before any Avoidance was Suppose the Bishop of London had died and this Promotion had happened should not the King have presented by reason of the Temporalties and yet that is as much out of the Words of the Act as this is As to its being a Donative 't was said That the present Rector doth not come in by Donation and tho' 't is true That the King cannot present to a Donative upon such an occasion the reason is because the Promotion doth not make a Vacancy of the Donative it doth not make a Cession the Parson is not subject to Censures as other Rectors are he is still in by reason of the Institution of the Founder so that nothing can be inferr'd from thence Suppose the Incumbency of a Donative had been immediately turned into a Rectory would not that have subjected it to this Prerogative 'T is admitted That the promotion of the Rector did make an Avoidance then was cited Princes Case 8 Rep. Then suppose it a Donative as to Dr. Tennison at the same time that the Church becomes vacant the Patronage vests and then the King's Prerogative shall take place either codem Instanti or before But here the Right of Patronage did vest immediately by the Act he that is to present when the Rectory becomes void he is Patron 'T is like a Reversion granted cum acciderit there is a present Interest vested and there 's no reason why it should not be so in Case of this Act of Parliament The Stat. of 12 Car. 2. for confirming of Livings makes the then Possessors full and perfect Incumbents as this
reason to continue the exemption afterwards as there could be to allow it during the Interval when they do not draw the Plough And for these and other Reasons urged 't was prayed That the Decree for Tythe quoad such Cattle as ever had been used with the Plough should be reversed On the other side it was urged That the said Decree is agreeable to the Law and supported by many Resolutions in the Court of Exchequer that there was a Reason for Tythe in this Case because these Cattle tho' formerly used to the Plough they ceased now to belong to it and consequently Tythes became due that there 's a Difference in the nature of the thing for when they feed in order to labour the Parson hath a Tenth of the Benefit produced thereby but when they are fatted only for Sale 't is otherwise That this was a settled and allowed Difference in the Exchequer That while the Oxen are working no Tithe shall be paid for their feeding because there is Tithes of other things arising by the Labour of such Cattle but when they do no Work and are turned off to be fatted and are graz'd there Tithes shall be paid for the Herbage which they eat they being no way beneficial to the Parson in any other Tithes And many Cases in scacc ' were cited to warrant this Distinction and 't was said That none could be alledged to the contrary wherefore 't was prayed That the Decree might be affirmed and it was affirmed Magdalen Foubert Widow Grandmother and Administratrix of Katherine Frances Lorin de Granmare Appellant Versus Charles de Cresseron Administrator with the Will annexed of Katherine Granmare Respondent APpeal from a Decree in Chancery the Case was thus Peter Lorin Son of the Appellant and Katherine de Mandoville came to an Agreement to marry and that the longest Liver should take all whether Issue or not A publick Notary took and entred that Agreement in his Book and both Peter and Katherine subscribed the same so entred and then being written fair they signed it again and the now Appellant and other Relations subscribed it They Intermarried Peter was kill'd in Flanders and left Katherine with Child afterwards she being near her time thought fit to make her Will which she wrote with her own hand in French in these Words Quoy que je sois presentement en perfaite santé de corps et d'esprit cependant ne sçachant de quelle maniére il plaira à Dieu de disposer de moy dans ma couche Je trove à propos de marquer jcy més dernieres volontés En cas qu'il luy plaise de me retirer de ce monde si c'est sa volonté de donner dés jours à mon enfant Je luy laisse generalement tout ce qui peut m'appartenir supplie trés humblement Madame Foubert ma soeur Lorin et Mr ' le Bas d'en prendre soin J'espere que Mr. Foubert le Major à la consideration de feu son paure Pere luy rendront lés services dont il aura besoin que Dieu ne l'abandonnera point Je l'en supplie de toute mon ame comme aussi de benir toute la famille fait a Londres ce 16th de Novembre 1693. par moy Catherine de Granmare After which the said Katherine annexed a Codicil to her Will in these words viz. En cas qu'il plaise à Dieu de retirer mon Enfant aussy bien que moy Je donne à Madamoiselle le Bas ma bague de Diamans mon Ecritoire garnie d'argent une boëte de rubants neufs Je donne a Madamoselle Peireaus mon habit brun doublé couleur de paille et mon habit Jaune une demie douzanie de més Chemises Je donne au fils à Jacob dix livres sterlings pour le mettre en Métier à son pere ce qui se trovera dés habits de mon Mary Je donne a Catharine Williams ma filleule dix livres sterlings pour la mettre en mètier Tout le reste de ce qui m'appartient tant en Meubles que Linge Vaissell d'argent Argent Monnoye qui m'est dù Je le laisse à ma soeur Lorin a mess ' de Cresseron pour etre egallement partagé entre eux J'excepte seulement le portrait de mon Cher Mary ma bague Turquoise que Je donne à ma soeur Lorin la prie de garder l'une l'autre tant qu'elle vivra Je donne aussy a Monsieur Cresseron ma montre d'Or que le souhaite qu'il garde et porte pour l'amour de moy fait à Londres ce 16th Novembre par moy Catherine Granmare Then she was deliver'd of a Daughter and a few Hours after died and the Daughter did survive her near two Years and then died And after her Mother's Death there being no Executor named Administration of the Estate of the Testatrix was committed during the Minority of the Child with the Will annexed but the Appellant possest her self of the Estate being about 600 l. Value Then after the Child's Death the Appellant as next of Kin took Administration to the Child and also to Mrs. Granmare The Respondent exhibited his Bill claiming a Moiety of the Residuum by force of the Codicil the Appellant by Answer insisted upon the Invalidity of the Agreement between Peter and Katherine but that being waived the Question arose upon the words of the Will and particularly these donner des jours and 't was insisted That nothing was designed to the Respondent but only in case the Child were still-born or should die in her lying in whereupon the Court ordered the Cause to be continued in the Paper and that both sides should take time to procure the Opinion of French Men born and acquainted with the Laws of France and the Cause coming on again to be heard before the Lord Chancellour and upon reading of several Opinions of French Gentlemen bred to the Laws of that Country the Court declared That the Respondent was well intituled to his Moiety of the Residue after the particular Legacies Debts Funerals and other Allowances deducted and decreed the same accordingly It was argued on the behalf of the Appellant That this Decree was erroneous that the proper Signification of those words was no more than to give Life that it was so translated at Doctors Commons That that Translation does agree with the Opinion of several of the most learned Divines amongst the French Refugees here That 't is so interpreted in the Famous Dictionary of the French Academy dedicated to that King where the Words are as follows viz. lés jours au pluriel signifie la vie That Days in the plural signifie Life without any Determination of time That there are few Frenchmen of any Understanding but will acknowledge That by lés jours d'une personne the
Days of one whether they be many or few in number must be understood the Life c. That the Testatrix here could mean no other by Days but Life when she said That in case it pleased God to take her out of this World if it was his Will to give Days to give Life to her Child she left it all that belonged to her knowing well That if the Child was born alive it must be maintain'd from that Moment out of what was so left it that it appeared from the Preamble of the Codicil viz. In case it shall please God to take away my Child as well as my self then c. That the Testatrix never intended the Estate to go over unless the Child died as well as her self in her lying in Then it was argued from the Nature of the particular Legacies they were of such a sort as that they must be given without Sense or Reason had she not supposed her Child's Death as well as her own in her lying in for otherwise those new Ribbons must become old which were intended as a Present to a young Gentlewoman Clothes lockt up in a Trunk would have been of no use to Persons then in Distress and the poor Orphan had gone too far in Years to learn a Trade Then other Things are given as Tokens to be kept and worn by them for her sake as long as they lived Now what Reason can be assigned for this if she did not mean and suppose a Death in her lying in From whence it was inferred That the Intention of the Testatrix was to give all she had to her Child in case she survived her and if it did not survive her but was taken away as well as her self in her lying in then her Intention was to give that same All which she had given to her Child to other People as specified in the Will and unless this were the Intention the Child must have starved or lived upon Charity not having the Property of what was left it and the Condition precedent according to the Respondents Exposition excludes the Child till its Years of Discretion wherefore 't was prayed that the Decree might be reversed On the other side it was argued with the Decree that the same was just that no Objection could arise from the Nature of the other Legacies or of this as being reasonable or unreasonable for that 't is the Natural Right and Priviledge of every Person to dispose of that which they have at their pleasure to do what they will with their own a Priviledge so certain that tho' 't is used many times to ill purposes yet the Law cannot interpose nor restrain the Proprietor no not to preserve him and his Family from ruine as daily Experience shews That it is agreeable to Law and Justice and to true Piety to see that the Will of the Dead be performed and tho' the Law have ascertained how Estates shall go when there is no Will yet when there is a Will that disposes of it otherwise then the Law would do the Courts below will compel a Performance of such a Disposition as the Will directs Then 't was said That the Intention of the Testatrix in favour of the Respondent is both Charitable and Prudent He was her nearest Relation in England and considering a great part of what she left was once her Husbands she honourably gave as much to his as to her own Relations making her Husband's Sister and the Respondent Charles residuary Legatees to share equally and so is the Decree And to Reverse this Decree and permit the Appellant to go away with the whole as she must if the Decree be reversed doth directly destroy all the Prudent and Charitable Intentions of the Testatrix and carries the Estate where she never designed it viz. to the Appellant Then 't was argued That the Court of Chancery had done well in taking the Opinion of Persons skilled and knowing in the Matter in question that the Gentlemen of the Long-Robe of that Country now here in London did all give their Opinions that according to their Construction of these words in a Will it was an arrival to Years of Maturity or Age enabling to dispose that unless the Child had lived to such an Age as that she had been capable to give the same away her Representative in this Case could not be intituled to it Then ' was said That words are to be interpreted according to the Sense and Acceptation of those which use them That the Testatrix was a Native of France and therefore this method of Inquiring into her Meaning was just and reasonable That the Courts at Law have frequently consulted Merchants about the signification of Mercantile Terms and Trinity House about Marine Phrases so in like manner Grammarians Criticks Chymists and Artificers have been in the Court of Kings Bench consulted according to the Nature of the Thing in question upon words belonging to and used in their respective Professions That in case of words disposing of an Estate in a Foreign Language by the Will of a Foreigner the Judgment of Divines or Grammarians could be no proper Direction to the Court of Chancery but the Means of Information must be from those who were acquainted with the Rules of Interpretation in Case of Wills amongst those People That the Opinion of those Gentlemen was sufficient to justifie the Decree But then it was further argued That here the Meaning of the Testatrix could not be such as the Appellant would pretend i.e. that she meant to give her Estate to the Respondent and others only in case the Child she then went with should be still born or if born alive should dye with the Mother in her lying in for these Reasons First For that she was so far from apprehending that the Child would either be still born or if born alive would dye as soon as her self or in her lying in that she expected 't would live and as she hoped to full Age for she takes particular Care of its Education and earnestly recommends the same to the now Appellant and others prays God to bless it and not forsake it and hoped that all the Relations on the Father's side would for the Father's sake do it all the Services it should stand in need of Then taking it that the Testatrix did expect the Child to out-live her as unquestionably she did if her meaning had been such as the Appellant hath put upon her words the way to have it sure fixt to the Child and then to the Appellant had been to have made no Will at all because if the Child survived the Mother but a day or an hour or never so little the Law had vested the whole first in the Child in its own Right and upon the Child's decease in the Appellant as Administratrix to the Child Suppose the Child had outlived the Mother for a Month or the like what Interpretation could have been put upon this Will
All their Arguments will hold as well to a Month Week or Days surviving of the Mother as to this of two Years and therefore it must be thus construed to be her Intent that the Devises over should take effect if the Child should not live to an Age of Maturity and Power of Disposition And as to the pretence of the Child's starving in the mean time there neither is nor can be any weight in that for the Interest and Produce of the whole during all that time must remain and be to and for the benefit of the Child Wherefore upon the whole Matter 't was prayed that the Decree should be affirmed and it was affirmed Philip Jermin and Sarah Vxor ejus ' Plaintiffs Versus Mary Orchard Widow Defendant WRit of Error to Reverse a Judgment of Reversal given in the Exchequer Chamber upon a Judgment given in the Kings Bench for the Plaintiffs in an Action of Trespass for the mean Profits after a Recovery in Ejectment and Possession had thereupon The Case was this upon Record The Plaintiffs declare that the Defendant 1 Sept. 1672. their Close c. vi armis c. did break and upon the Possession of the Plaintiff did enter and the Plaintiffs from their Possession did expel and remove and them so being removed and expelled for a long time viz. from the said 1 Sept. 1672. to the time of exhibiting the Bill viz. 6 May 1685. did hold out from the same by which they lost the Prosits thereof c. Et al' Enormia c. The Defendant by Plea takes Issue as to the Force and Issue thereon and as to part of the Trespass pleads the Statute of Limitations and as to the residue of the Trespass pleads that Sir William Portman made a Lease to one Trowbridge for 1000 years and by mesne Assignments derives a Title down to Thomas Nicholas and that he in his Life time by Indenture assigned to the Defendant The Plaintiffs Reply and as to the first part of the Plea viz. of the Statute of Limitations they demur and as to the other part of the Plea they tender a Traverse and deny that Thomas Nicholas did assign the Premisses to the Defendant The Defendant joyns in Demurrer as to the first part of the Plea viz. the Statute of Limitations And as to the other part she takes Issue upon the Traverse which Issue is joyned and a Venire awarded tam ad triand ' the two Issues quam ad inquirend ' de dampnis upon the Demurrer The Jury find that Thomas Nicholas was possessed in manner as the Defendant in her Plea hath alledged and that he did make Seal and as his Deed deliver the Indenture in the Plea mentioned which said Indenture follows in these words and so set forth the whole in which after a Recital of the Lease and a Deducement of the Title down are these words viz. The said Thomas as well for and in consideration of the natural Love and Affection which he beareth to the Defendant his Grand child as for other good Causes and Considerations hath granted assigned and set over and by these Presents doth grant assign and set over unto the said Mary her Executors Administrators and Assigns all the said Cottage Barn and Lands and all and singular other the Premisses herein before recited or mentioned with the Appurtenances to the same belonging or appertaining together with the said recited Lease and all Writings and Evidences touching the Premisses to have and to hold the said Cottage Barn and Premisses and every part thereof with the Appurtenances unto the said Defendant Mary her Executors Administrators and Assigns from and immediately after the Death and Decease of the said Thomas Nicholas party to these presents and Mary his Wife unto the end of the term and for and during all the rest and residne of the said term of 1000 Years which shall be therein to come and unexpired by and under the yearly Rents Covenants c. expressed in the said Original Indenture of Lease Then the Jury leave it to the Court whether the Deed of Assignment be good in Law or not and conclude specially if the Assignment be not good in Law then they find for the Plaintiffs and Assess Damages 50 l. and 40 s. Costs and thereupon c. And now it was argued for the Plaintiff and it was said in the first place That this Case was extraordinary that tho' the Majority of the Judges in Westminster-hall were of Opinion with the Plaintiffs yet they were forced to sue this Writ they had the four Judges of the King 's Bench and the then Mr. Justice Powell and the then Baron Powell concurring with the King 's Bench and the chief Baron Atkins being absent the other Five in the Exchequer-Chamber reversed the Judgment it having been resolved upon the Stat. of Eliz. which erects that Jurisdiction That the Concurrence of six are not necessary to reverse but only that six must be present to make a Court so that here were six to five for the Plaintiff and yet he hath lost it Then it was argued That there had been two Things insisted on below one was the finding of Damages generally and the other was as to the Validity of the Assignment and as to the finding it was said That the Matter of the Force is meer Form and if there had been no non prosequi the same could not make an Error That in C. B. and B. R. the Issue upon the vi armis c. is seldom or never taken notice of no Entry is made of it upon the postea at all unless a wounding or some such other special Matter were mixt with it in the same Issue That 't is held in the Case of Law and King 1 Saund ' 81. If nothing be answered to the vi armis in a special Plea 't is well upon a general Demurrer and the 7 Hen. 6. 13. and 1 Hen. 7.19 are plain That if the Party have the special Matter which he pleads found for him the vi armis shall not be inquired of So if the Defendant have Judgment against him upon Demurrer to the special Matter pleaded by him the vi armis shall never be tried tho' Issue were joyned upon it but the Party shall be fined upon the Capiatur c. without any Inquiry So is the King and Hopper 2 Cro. 599. in a Scire Facias on a Recognizance for the good Behaviour special Matter pleaded held That the Jury need not inquire about the vi armis if such Special Matter be found for the Defendant much more is it so in case it be found for the Plaintiff for there the Act which is found imports it c. and it shall be intended to be vi armis c. and the Book of Hen. 6. is full in it no need of any Inquiry in such Case And in this Point both the Courts having concurred the Counsel for the Defendant did not contest
the Grantee for 't is plain from the whole Contexture of the Deed that the Defendant was to have nothing in the Term till the Death of the old Man and his Wife It was undoubtedly the meaning and design of all the Persons concerned that the Defendant only should have the Residue after his decease Then that the Law will not permit this is plain from the Books for that 't is uncertain how much or if any of the term will remain or be in being at the death of the Grantor or Assignor that the Law rejects such a small or remote Possibility that Man's Life in the Eye of the Law is of so great a regard that 't is presumed to be of a longer duration than the longest term of years That this is an old Maxim upon which Thousands of Properties do depend that tho' some Mens reason may not approve it 't is not to be altered but by the Legislature that the Law first prefers Inheritances or Estates descendible then Freeholds or Estates for Life then Chattels real or Terms for Years The Law values and regards what a Man and his Heirs shall enjoy before that which he himself only can enjoy and what he himself may enjoy during his Life before what he may have only for a certain limited time the which he may by any supposal survive These are known Truths 32 Assis 6. Plowd 521. If a Man be possessed of a Term for 100 years and grants so many of them as shall remain at the time of his death this is void for the uncertainty otherwise if it be by Devise because there nothing takes effect till death and then 't is certain how many years he is to enjoy it 'T is true a Lease of Land for Forty years to commence after a Man's death is good because 't is certain that the Land shall be enjoyed for Forty years but here non constat in certain that this Deed could take effect for a year an hour or at all Bro. tit Lease 66. Plowd 520. A Man possessed of a Term grants it to another during Life 't is as much as during the whole Term tho' never so long because Life is presumed longer so if he grant all the Term that shall remain after his Death 't is all void because he reserves to himself the whole for a greater includes the less and for Life is the longest of the two These things are not to be disputed If both Premisses and Habendum had had this Limitation the other side must have agreed it to have been void ab origine and nothing to have passed by this Deed. But then the Objection is That the whole Term passes by the Granting Part and then the Habendum is void because 't is repugnant To this it was answered That in a Deed each part hath its proper Province The Office of the Premisses is to express the certainty of the thing granted the Habendum is to express the quantity and limitation of the Estate 1 Inst 6. Plowd 196. Lofield's Case 10 Rep. 107. And according to Littleton's Text Sect. 370. all the parts of the Indenture are but one Deed in Law from whence it was inferred That the Habendum is never to be rejected but when there is a manifest express and particular Contradiction never when the Habendum doth apparently shew the Parties Intention Here the Lessee for years grants totum Cottagium suum c. The Grantee or Assignee if there be no Habendum hath but an Estate at will whereas if he grants all his Estate and Interest in such a Cottage there the whole Term passeth This is the express Opinion in Griffin's Case 2 Leon. 78. Case 102. and there said to have been lately so adjudged in Wynnibank's Case in B. R. Now here 's nothing in the Premisses but what is general not the whole Estate granted nor is it said for how long time he shall enjoy it and therefore the Habendum cannot be said to be repugnant or contradictory because the first is not express In Stukely's Case Hob. 170 171. upon the Case of Grants and Exceptions is the learning of Habendums laid down if it had been a Grant of all his Estate Habendum after his Death there the Habendum shall not frustrate the Grant but if the Premisses give no certain or express Estate there you may alter and abridge nay you may utterly frustrate it by the Habendum these are the words of the Book Then was cited 2 Rolls abr 66. and 1 Inst 48. b. and the same Case of Hodge and Crosse in 3 Cro. 254 255 where 't was ruled That the Habendum tho' void shall controul the implied Limitation in the Premisses 't was a Feoffment of Lands in London Habend ' to the Feoffee and his Heirs after the Death of the Feoffer And 't was argued in that Case That the Habend ' was void but resolved That nothing passes because it appears to be the Intent of the Party that nothing should pass but in futuro for the Premisses could pass nothing but by Implication and that was nothing at all because the Intent was to pass nothing presently and tho' there were Livery made yet that Livery could operate only secundum formam Charte and therefore the whole was void the reason was because the first was General tho' the Law would have given a particular Estate for Life by the Livery yet because the Party gave none expresly by particular Words the Habendum was not to be rejected many of the Rules in Buckler and Harvey's Case 2 Rep. 55. are applicable to this And altho' there be a Difference where the Deed passes the Estate and where Livery or other Ceremony is requisite as to many purposes yet still the Distinction is where the Premisses do not give all the Parties whole Interest or some other particular Estate but is General there the Habendum shall not be rejected as repugnant 2 Rep. 23 24. Baldwin's Case As to the Words together with the said recited Lease that can only mean the Indenture or Writing for the Adjective recited implies the Intent to be such Recited signifies only a Rehearsal or Repetition of Words spoken or written before and so is Recitare Testamentum Calvin's Lexicon and 't is joined with the other Writings and Evidences concerning the Premisses and doubtful Words are to be construed according to the Nature of the things expressed and mentioned with them Lease in it self imports only the Conveyance or Instrument of Conveyance not the Interest in the thing conveyed if by Writing 't is called a Deed or Lease in Writing if otherwise a Lease Parol Thus is it explained in Blunt's Law Dictionary and in Knight's Case 5 Rep. 55. where all the Parts of it are described A Man may give away his Lease and yet retain his Estate or Term he may deposite it as a Pawn or Pledge and the Party in whose Custody 't is so lodged may maintain Trover or Trespass if it be taken from
upon the Livings becoming void by Cession viz. by the Incumbents being made a Bishop but never a word of the King's Title in all the Case or any such Prerogative as is now contended for And in Owen's Rep. 144. Walmesly cites a President which he had seen in Edward the Second's time adjudged that the King had no such Prerogative and all that was said for it was eight or nine Presidents in Tradition or History of a Patron being complemented out of his Right but not one Law-Book for it Coke 4 Inst 356 357. who wrote and published much he never mentions this Prerogative but says that the Law is otherwise for upon his Observation on a Record of 24 Edw. 3. Rot. 25. coram Rege Cornub ' Admittitur Episcopus Exon ' pro fine 200 merc ' pro contemptu in non admittendo presentatum Regis ad Ecclesiam de Southwel pro quo contempt ' omnia temporalia Seisita fuerunt in manus Regis tunc temporis ante finem fact ' vacavit Archidiaconat ' Cornubiae ratione quod Incumbens Electus fuit in Archiepiscopunâ— Dublin ' in Hibernia Temporalibus Episcopi Exon ' ad tunc in manibus Regis existent per quod Dominus Rex recuperavit versus Episcopum dict' Archidiaconat ' Upon this Record he makes two Conclusions 1. Tho' Ireland be a distinct Kingdom yet 't is governed by the same Law as England in these Matters 2. That when the Arch-Deacon was by the King preferred to an Archbishoprick he had the Presentation to the Arch-deaconry in respect of the Temporalties of the Bishop of Exeter Patron of the Arch-deaconry and not by any Prerogative Here 't is observable That my Lord Coke took it that the Patronage by reason of the Temporalties gave to the King this Right and not the Prerogative Then his next Paragraph is stronger If a Bishop in England be made a Cardinal the Bishoprick becomes void and the King shall name his Successor because the Bishoprick is of his Patronage All which implies That if 't were not of his Patronage 't would be otherwise else why is that reason added Obj. But then say they The Pope's Usurpation prevailed in all those times and the Pope had it when Provisions were in use But that can be no Argument to give the Crown a Prerogative for the Pope was a Tyrant over the English Church and by the same Reason the King may claim to be above all Laws because some Judges said as Hank did in Hen. 4. quod Papa potest omnia at that rate no Act of Parliament shall bind the King because the Pope thought himself bound by no Law of ours Besides There were several of our English Monarchs and English Parliaments that boldly withstood these Usurpations and there were divers Intervals of Liberty and Freedom from that Romish Yoke and we never read of any Exercise of this Prerogative in those Intervals 'T is questioned in 41 Eliz. and in Owen's Rep. 't is said that the Pope's practise was no Authority to warrant a Prerogative for they used to do strange things and the Clergy then made his Will a Law and our English Lawyers have always complained of it Obj. There 's no ancient Books that mention Title by Lapse But 't was answered That in Caudries Case 't is fetch'd from the Reign of Edw. 3. and that is no very late Reign and Lapse is so ancient as it appears by the close Roll 21 Hen. 3. in n. 12. that the Deâ— and Chapter pretended to it during a Vacancy of a See upon an Advowson of the King 's own but it appears there by a Writ to that purpose that no Lapse per tempus semestre accrued on the King which shews that 't was old Law for the Subjects Pryn 2.481 By a Writ 8 Hen. 3. num 4. Dorso Prynne 2 Vol. 389. it appears the Archbishop of York was to present si ultra tempus sex mensium vasari contigerint and 1 Inst. 2 Inst. and all the Booksare full of it and Doctor and Student which is no new Book treats of it cap. 31. Besides that and this are different Cases there is a necessity of such a Law for the Service of the Church the King is by the Constitution intrusted with the Supreme Care of his People both for Religion and Property and if a Patron will not do it in reasonable time 't is reasonable he should lose it and the King present But to make that a similar Case they should shew that these Prerogatives were of equal duration and that there 's as much reason for the one as for the other but because the King hath preferred the Patron 's Friend therefore the King shall have it that cannot hold upon a toties quoties when the Friend is dead and three or four more of the King 's presenting for by this means the Patron may never present to his Church 2. The next Query was Whether this Commendam for above the six Months with power to take the Profits to his own use shall be a fulfilling of this turn or otherwise prevent the Operation of the Prerogative on it by this he was a plenary Incumbent after Consecration and he had the Profits to his own use He was not meerly the Ordinary's Deputy to supply the Cure during six Months but hath it in his own right and this with the King's concurrence The Prerogative could only work upon an Avoidance by Promotion and that is upon Consecration this becomes void at the expiration of therein limited T is to be considered That this is none of the old Prerogatives of the Crown which in a Competition are to be preferred before the Subject's Right it is a Prerogative not to be favourably interpreted but stricto Jure for 't was only taken up as a Papal Right and so 't is plain from 2 Rolls Abridg. 358 359. As such a Papal Right it ought to be interpreted stricto Jure even by the Pope's Law being against the Patron 's ordinary Right and so 't is nature odiose there might be cited Suares and others to this purpose Perhaps the Pope's Right was not so much allowed here as to make it clear with him in this Point for Dr. and Student cap. 36. 37. says that the Pope's Collection of Benefices vacantium in Curia was held to be within the Statute concerning Provisions viz. 25 Edw. 3. This Prerogative hath been construed stricto Jure here 1. In the Case which the Lord Chief Justice Vaughan Reports where the Crown upon the promotion of an Incumbent to the Bishoprick of Oxford and who by Dispensation retained his Living till death would have presented to the Living when it fell vold by the Incumbent the Bishop's Death it was resolved that the King's Prerogative was not to present to the next Avoidance after the Promotion but to the next Avoidance by the promotion which in that Case was none for that the Avoidance was by Death 2. In the Case my Lord Chief
Justice Dyer reports 228. the promoted Incumbent was dispensed with to retain for a term of years within which term he resigned and there upon the Avoidance the Prerogative was not admitted to take place because the Avoidance was by the Resignation and not by the Promotion Now if this Prerogative is to be interpreted stricto Jure it will have no place in this Case where the Incumbent promoted is dispensed with to retain for a term of time which is elapsed For The King's Prerogative will have a very Natural Construction by admitting his Title to present to all such Avoidances as commence immediately from and by the promotion This is the Avoidance which the Law intends and which the Law would always cause if not hindred to operate by Dispensation and this Avoidance is that therefore which the Prerogative must most principally respect and only that if it be to be strictly taken insomuch that were it in the sole power of the Archbishop to grant this Dispensation it seems the King's Title would clearly be set aside by it much more therefore should it be so when what the Law designs is prevented by the Act of the King himself For tho ' the Lord Vaughan saith That the King's Concurrence to the Dispensation is only for formality yet 't is plain that the King may force the Archbishop to grant it Now this Interpretation of the Prerogative seems to be already made in the Case cited upon a Resignation of the Incumbent dispensed with for as it is there intimated if the King's Title was not supposed to be gone by the defeating of the immediate Avoidance which the Law intended but the King would not permit It would be very strange that it should be eluded by the Resignation of the Incumbent to which the King was no Party for if the King had a Prerogative to present to this new this deferred this adjourned Avoidance it would be more reasonable to allow it to be hastened then defeated by such a Resignation before the time This Prerogative ought to admit such a Restriction from the reason of the thing and from the consideration of the Inconveniencies which may otherwise follow To the Subject A Patron might be content to let the King exchange a single Life and put in a Clerk in the place of one removed much rather then that the Living should be held on by one in Commendam that from thenceforth would be sure to leave it and be absent for a better Residence in a Palace yet they may as they have reason think it too hard that the King should as it were let a Lease of it first and afterwards put in his Clerk for Life and tho' the King doth commend here but for a small time yet he may for a longer He may perhaps as the Pope did often dispence with the Bishop to hold durante beneplacito and when the Incumbent is in danger of Death then present another so as the Patron may have his own Clerk not removed as was first intended but dispensed with to wear out his Life in the Benefice and yet after all have another put in The Crown may have Inconvenience by the straining of it further than this for all strains weaken if not break the thing it self This Opinion of theirs arises from the Principle my Lord Vaughan lays down That a Commendam neither gives nor takes away Right but only is a Dispensation to hold and he continues Incumbent still and it prevents an Avoidance and if so why should it not also prevent the operation of the Prerogative too As to the Case of Woodley 2 Cro. 691. they say 't is Law to prove the other Point for them If it be Law for them in that Point 't is Law against them in this That a Dispensation ad retinend ' prevents the Grantee of the next Avoidance The Case was thus A Man hath a Grant of the next Avoidance the Incumbent is promoted but with a Commendam Retinere for six years and dies the Grantee shall not present because he is to have the next Avoidance only and no other 'T is the words of the Book that when the Incumbent is created a Bishop and the King presents or grants that he shall hold it in Commendam which is quasi a Presentation and he is thereby full Incumbent and may plead as an Incumbent if the Grantee of the next Avoidance do not then present he hath lost his Presentation for he ought to have the next and he cannot have any other Now if this be so that a Commendam Retinere hath so much of a Grant in it and is so equivalent to a Commendam ad recipiend ' that it will set aside and frustrate a Grant of the next Avoidance and be it self taken for a presentation to the next Avoidance against the Grantee by the same reason it must be taken so against the King as a Presentation to an Avoidance and consequently his turn is served by it Much might be said against those Commendams as promotive of Pluralities and tending to the ruine of the Church and this out of our own Law-Books but it is not material at present 't is however to be observed that this is not a Commendatory for six Months during the time that the Patron may forbear to present such Person continued then is only commendatorius under the Bishop to provide for the Church as 't is his Duty to take care of it during that time 3. Admitting that the King hath such a Prerogative and that this Commendam tho' it gives the full perception of the Profits is not a fulfilling of the King's turn nor doth any way distinguish the Case or exempt it from the Prerogative yet this is a Case not within it and this doth appear of Mr. Attorney's own shewing in his Declaration upon the King's behalf He hath set it forth to be a Parish newly created by Act of Parliament a thing not in esse before It appears by the Declaration what that Act is it must be taken as 't is there set forth To this Declaration the Bishop hath demurred Now if by that Declaration it appears that the Bishop and not the King is rightfully intituled to present upon this Avoidance the Judgment will and must be accordingly for the Defendants Mr. Attorney by his Count doth agree an Avoidance within this Act of Parliament by the Promotion of Dr. Tennison and Mr. Attorney doth likewise admit and agree That the King is not Patron of this Benefice called St. James's he doth agree too That the King hath no Right given to have any Turn or Presentment by this Act for he saith 't is to be by the Bishop of London and the Lord Jermyn he doth also admit by this Declaration That Dr. Tennison was never presented to this Living that he came not into it by Virtue of any Presentation from any particular Patron nay That he did not come into it by any sort of Presentation whatever nay he