Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	action_n	defendant_n	plaintiff_n	1,723	5	10.0998	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A70357	The judges opinions delivered before His Grace the Lord Chancellor of Ireland, in the cause between John St. Leger, Esq; plaintiff, and John Barret, Esq; defendant Taken by the register of the High Court of Chancery, Saturday the 8th of February, 1678. Present, Lord Chancellor, Lord Chief Justice Booth, Lord Chief Baron, Sir Richard Kennedy, Mr. Justice Johnson, Mr. Justice Jones, Sir Richard Reynell.	Jubbes, John.	1685 (1685)	Wing J1169A; ESTC R217109	6,080	5

The JUDGES Opinions delivered before His Grace the Lord Chancellor of Ireland in the Cause between John St. Leger Esq Plaintiff and John Barrett Esq Defendant Taken by the Register of the High Court of Chancery Saturday the 8th of February 1678. PRESENT Lord Chancellor Lord Chief Justice Booth Lord Chief Baron Sir Richard Kennedy Mr. Justice Johnson Mr. Justice Jones Sir Richard Reynell THE Notes of the 10th of May 1678 Read Lord Chancellor the Notes are short in this for His Grace gave a Reason why this Court may determine points of Law was because the Court may have the Judges present The latter part of the Notes 9th of Decemb. Read Sir Richard Reynell That upon the hearing of this Cause several points fell out that of the Intail and that of the Remitter As to the Intail the Court by Approbation of the parties sent it to be tryed and the Jury said they did not find any Intail and the Court declared the Verdict sufficient and satisfactory So that of the Intail is now out of doors but the Defendant saith Though there were no Intail yet the Intent of the Will is for him and for the Opinion of the Judges upon the Construction of the Will the Judges called together saith There was an Original Equity because the Witnesses in England Several Cases have been put concerning the favourable Construction of Wills for that saith Where Lands are given by a Will the words must carry it the Defendant hath urged the Preamble and Body of the Will the Intail by Reputation Sir William Barrett's Answer That the Testator was consulting Justice and Conscience Pray where was Justice and Conscience to disinherit the Right Heir That of Justice and Conscience may be broken off after the wrangling World but if you carry Justice and Conscience to the Intail conceives that of Justice and Conscience is subservient to the Construction for the Plaintiff as well as for Defendant You must look upon it now as if there were no Intail and if so by the words of the Will it must be as if he had said the Lands for which there is no Intail must go to my Uncle St. Leger It cannot be denied but the greatest part of the Lands came by the Mother and that might raise a doubt in Sir William that the Lands were not Intailed and therefore he saith Those Intailed I give to those not Intailed I give to the Plaintiff doth acknowledge that if he had referred to the Inquisitions the Case would have been stronger as in Mollineux's Case saith It is not left to the Defendant by Name nor what Estate nor what Lands only to the Right Heir saith He hath looked over all the Witnesses on both sides and it seems to him that there are more Witnesses and of better quality on the part of the Plaintiff than on the part of the Defendant The use he makes of this is That there would be great inconvenience to the Subject to allow Construction de horse concludes as to this point that the words of the Will and not the intent ought to govern As to the Inquisitions must look upon as a Collusion or Contrivance for here is an Estate of 1000 l. per Annum and yet the person concerned knows nothing of them Then the Feofment by Andrew was but a Contrivance to draw his Wives Estate to him and enable him to make Intail conceives that neither the Witnesses nor the Inquisitions nor the Answer ought to give the Court ground to dispose of the Lands otherwise than according to the words of the Will As to Sir Moyle Finches Case there the Mannor had been once a Mannor de facto but dissolved by accident so not a-kin to this Case Then for the Case Hob. 32. there was a Wife de facto but here is no Intail de facto If there had been an Intail produced something might have been said As to the Case Anderson 188 there it was I devise all my Lands Intail not adjudged all my Lands that I thought Intailed As to the Case in Stiles that Tythes shall be intended there it was upon a fair Construction In this Case you must fetch all out of Averments you must aver for the Person you must aver for the Estate you must aver for the Land you can have nothing but by Averment That the Defendants Councel would have it strong enough to intercept the Deviser and not strong enough to intercept the Heir for which he sees no reason at all To allow Foreign Constructions would be of great inconvenience for Witnesses may swear one way and Witnesses the other Therefore it is a good Rule of Law that the Law should be certain in such Cases and that it might arise out of the Letter of the Will and for this relies upon the Lord Chenyes Case and the Case of Brett and Rigden in Plowden In this latter Case the Testator told that his Son should have the Land but the Judges said this would not do because Lands must pass by Writing but these words not in Writing will instance one Case more that is 2 Leonard 70. saith That to him it seems very plain that as this Case is the Plaintiff ought to be put into the possession of the Lands and that he ought to have a Decree accordingly according to the prayer of his Bill saith If he be put into possession he must resort again to this Court if the Heir should commence action to prove the Will Mr. Justice Jones premiseth two things First That the Defendant is the person intended and 't is so agreed Next If the Lands be Intailed the Defendant is true and lawful Heir will not speak to the Verdict though he conceives much might be said because he finds he is restrained as to that will speak of what hapned before the Death of Sir William Barrett will speak to the Reputation The Inquisition was taken before the Chief Justice of Munster and it finds the Deed which is to be believed before all Witnesses if there were Ten thousand Witnesses How this Intail has been defeated cannot say as to the Will of Old Andrew no mention there that it was Katherines Estate As to the Inquisition after the death of Sir James no mention the Estate was Katherines and Andrew complained her Joynture was too heavy for his Estate It appears too that Katherine took to her Joynture Then the second Inquisition was taken before Sir P. Percival who very well understood what Intails were There was another Inquisition taken after the death of Sir Andrew will reflect upon none but it was taken before Mr. Mead and it was taken by new men who might not be knowing in the Settlements Now we 'l speak what the intent of a Testator does operate in a Will next as to the Reputation as to the intent It is the thing that in Law is always taken to guide the Will for this Plowden Hill and Cradocks Case 107. the same Book Weldons Case 516. Hob. 75.

what was the intent here I leave all my Estate Intailed to the Right and lawful Heir It is the duty of Justice to give to every one what belongs to him and Conscience to perform the Trust reposed in him upon creating of the Intail as to Chenyes Case conceives it makes wholly for the Defendant for there an Averment was allowed that John was the person intended In E. 3's time a man had two Sons of one name and their Averment was allowed So in Fitz-Herbert 22 Title Devise which was a much stronger Case than this And Sir Moyle Finches Case is That things shall pass by Reputation and so 2 Leon. 120. will consider a little of the Intail No doubt but there was an Intail were it the Estate of Katherine or the Estate of Andrew but saith If it were the Estate of Kathirine it might have been defeated either by Action or Remitter conceives Sir Andrew nor Sir James could be remitted because the Statute of Uses which fixed the Estate in them and they must take accordingly As to the objection that if there had been an Intail no need of Devise if the Lands did not pass by the Will to the Defendant then he is in as a Disseisor and no Subpoena lyes against him if they do pass by the Will the Plaintiff ought to be dismissed Concludes he conceives the Plaintiff ought to be dismissed as to all the Lands that had the Reputation of an Intail and have a Decree for all those things that were purely in Fee-simple Mr. Justice Johnson That 't is a difficult thing to judge of intents but no difficulty to judge of intents according to what the Law directs Conceives the Question before them is Whether the Lands be devised to the Plaintiff or Defendant and conceives by the words of the Will the Lands are devised to the Plaintiff concerning Chatels Intents have been admitted and so concerning Lands but then that intent must be Collected out of the Will it self and the Statute directs Lands disposed by Will must be by Will in Writing saith The words are not ambiguous they are plain those Intailed are so those not Intailed so The whole Will must be considered saith the Defendants Councel object that he intended something for that he appointed Guardian c. From thence does not necessarily follow that he intended to give any thing absolutely but conditionally Concludes he is of opinion the Lands are by the Will demised to the Plaintiff Sir Richard Kennedy That the Court desires only to know that admit there be no Intail quid operator what does pass by the Will for that will not open the Curtain shut by the Court only peep into the matter of the Intail Lord Chancellor That His Grace intends the Lords the Judges should speak to what they pleased Sir Richard Kennedy If no Intail no Will an easie way of Conveyance to a third person the Heir Conceives the Lands had the Reputation of an Intail it is gray-headed 't is One hundred years old 't was believed by Sir William the Countrey believed it conceives the Will good to pass to both according to the intent of the Will It appears to him that Sir William believed it to be an Intail because he saith When his Soul sat upon his lips and was ready to take wing and fly to another world I give as I ought to do And it seems to him that the Plaintiff also took it to be an Intail by undertaking the Guardianship Observes that it appears by the proofs that Sir William was tempted at the time of his death to change his Will and he answered with a quae Deus conjunxit These which God hath joyned I will not sever Then the Witnesses speak That he said he would Dock the Intail that implies he thought there was an Intail Then it seems to him by the words of the Will if he prove good for any thing breed him as well as you can if not turn him amongst the rest is an Argument there was a great strugling the Testator had concerning the Defendant how to dispose of him the words import as if his Guardian should breed him vertuously and marry him advantageously and for the words Turn him amongst the rest cannot be construed to turn the Defendant out of his Estate but among his Popish kindred for certainly he intended he should be bred a Protestant I leave all my Estate Shall it be all and shall it be none as some would have it The Testator begins as in Justice and Conscience I ought and provides for payment of his debts There was a debt due to the Defendant the Intailed Estate believes if Sir William were here at this day he would give it other Epithets than wrangling world Concludes that he conceives that there was an Intail in Reputation and that the Lands are well devised to the Defendant by the Will because Sir William looked upon the Lands to be intailed and if so conceives though there were no Intail that the Lands shall pass to the Defendant by the intent and the like Case concerning things in Reputation was Adjudged in 2 Leonard in Jones's Reports and Crook Car. 271. In the Case at Bar the Lands were reputed to be Intailed at the time of the devise but it hath been objected that the Reputation was taken away but conceives it was not for Reputation is taken to be what the Countrey doth believe and know Instanceth Sir Moyle Finches Case for Reputation saith he has delivered his sense leaves it to His Graces better Judgment Lord Chief Baron The Bill is to prove the Will and to have possession As to the first it is agreed on all hands the Will well proved As to the second he is to speak to whether the Plaintiff shall be put into possession for that he must say now as he said formerly that the Verdict is not positive it ought to be positive either Negative or Affirmative or the Court can make no Decree Next it does not appear what Estate Sir William had to devise it hath not been proved that he had an Estate in Fee as to the Construction of the Will will take the same method he did when he spoke last saith There are certain Rules and Grounds in the Law concerning the Exposition of Wills First the Intent is to be found out Next no violence offered to the Will The Rules for Construction of Wills appear in 1 Rolls 319. The Devisor was a Gentleman of an ancient family and had a fair Estate and believed he had Lands which were Intailed and Fee-simple Lands the words I leave all my Lands Intail It is to be considered whether these words are Nugatory or what they import First they import that the Lands Intail should be devised to the Defendant for he does not pretend to be Heir at Law It was Justice it should be so by Argument ab extra that is the Statute de Donis Conditionalibus is so Next ab intra his Conscience told him he ought to leave them to the right Heir By the scope of the Will and the intent of the Devisor it may be Collected the Devisor had Lands which he believed were Intailed and which he intended should go to his Heir intail Then it appears by the Will that the Devisor had Lands in Fee saith It is plain to him that the Devisor intended the Land intailed or which he believed to be intailed should go to the Defendant those in Fee to the Plaintiff If you should make other Construction you will go contrary to the Will and give that to Plaintiff which was intended for Defendant and give the Defendant nothing then there is no necessity for such Construction that there was an Intail you have the Reputation Sir William's Oath Several Circumstances that he believed it was Intailed that he raised money on his Fee-simple Lands that he said he would Dock the Intail will not speak to the two first Inquisitions only to the third which finds it Fee-simple Lands saith The Escheator was Judg and Party and the Lease for years would have been in danger if a Fee had not been found The Devisor provides for the Education of the Defendant and appoints a Guardian which to him seems an undeniable Argument that Sir William believed the Lands were Intailed for if no Estate what needs a Guardian To give the Estate to the Plaintiff would be to make us ridiculous to posterity to give a thing against the intent of the Testator and that a Guardian should be appointed to one who hath no Estate If none but the Devisor himself had believed the Reputation it would be sufficient to pass the Land 1 Inst If a man devise in perpetuam it shall be a Fee that all the words may stand together Fitz Herbert Title Devise 22. These Cases shew that Wills ought to be expounded that all parts may stand together and none rejected Conceives that if the Lands that were Reputed to be Intailed be given to the Defendant and those in Fee to the Plaintiff That all the parts of the Will will stand together The Plaintiffs Council would have the Intent help the Plaintiff and will not admit the Defendant to be helpt by the Intent for it is as doubtful what Lands the Plaintiff shall have as it is what the Defendant shall have As to the person conceives he is well described both by the Will and Proofs and the person intended by the Will It hath been objected Averment shall not lye for that conceives Averments in all Cases for clearing up the Intent of the Devisor and so is Chenyes Case Upon the whole matter conceives the Devise to the Defendant is good and that he ought to be Dismissed Lord Chief Justice Booth The Devising words are only material and the point before us The question what devised to the Defendant and if there be no Intail how can it go to the Defendant There is another right Heir it does not appear to him that the Defendant is the person intended His Opinion is If there be no Intail that nothing passeth to the Defendant If there had been an Intail de jure or de facto it is likely his Opinion would have been otherwise Lord Chancellor Being the Judges differ will not take upon him now to determine