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
Feodary and Officiary as Earl Marshal of England which have a Relation to an Office or Land for such are Transferrable over and such Dignities as are only Personal Inherent in the Blood and only favour quasi of the Reality of which no Fine can be levied as 't is of an Annuity to a Man and his Heirs no Fine can be levied 2. A Dignity was neither subject to a Condition at the Common Law nor intailable by the Statute de Donis c. nor barrable by the Statute of Fines Indeed in Nevil's Case something which favours of the contrary Opinion is said but the Question there was Whether 't was forfeitable by Treason And therefore the present Question is very forreign to the Matter there debated A Dignity differs from other Inheritances being an Honour Personal affixed to the Blood cannot be forfeited by a Non-performance of a Condition except that Tacite Condition in Law and consequently cannot be intailed and tho' the Title of a Viscount be of a Place yet it is only Titular for it is often taken from the Sirnames of Families 3. The Title of Viscount c. is not so much a private Interest as a publick Right for Peers are born Counsellors of State and one part of a Senatory Body and therefore cannot be renounced without the Consent of all those who have interest in it they cannot without the Consent of the whole Body whereof they are so considerable Members cut themselves off from the Body and so the Objection of quilibet potest Juri suo renuntiare is easily answered 'T was further argued on the same side That 1. An Honour goes not according to the Rules of the Common Law nor is it governable by them it is not therefore pertinent to argue from those Rules which hold in Cases of other Inheritances for a Dignity descends to the Half-blood there is no Coparcinership of it but the Eldest takes the whole a Fee-simple will go to a Noble-man without the word Heirs 1 Inst 27. It differs from Estates in Land in the Intrinsick Matter as well as the Manner of the Limitation because it is given for two Reasons for Counsel and Defence and it is a Civil Interest appointed by the Civil Constitution of the Realm which goes with the Blood and is inherent in the Blood insomuch that it is agreed on all hands that it can't be transferred to a Stranger and till Nevil's Case 't was doubted whether forfeitable for Treason if a Lord die his Son shall be introduc'd without the Ceremony usual at the first Creation a Peer's eldest Son and all Minors sit behind the Chair of State to prepare them for the Sitting in the House as Members and because they have some Title to the Honour they are called Nobiles Nati for the first time they fetch breath they have Nobility in them So that he that Surrenders by Fine must not only extinguish his Estate in the Honour but also the Nobility of his Blood 2. Every Lord is not only a Lord for himself but also hath a Right of Peerage and is a Peer of the Realm and therefore a Peer for every one of the House and therefore hath the Priviledge to demand his Writ Ex debito Justitiae and is to be tried by his Peers in Capital Crimes and that appears farther from a Matter which happened in this House 16 Car. 2. There was an Order mentioning the Bishops to be Lords of Parliament not Peers at which the Lords wondering ordered a Committee to examine the reason of it which proves that Lord is not so high nor inclusive as Peers So that if the Fine have any Operation it takes away not only his Right but also the Right of the House of Lords 3. The trial of Baron or no Baron upon Issue in any Court of Judicature is by the Records of Parliament but if a Fine may be levied in the Common Pleas the Trial is drawn ad aliud Examen and must then be by the Records of that Court The Clerk of the Parliament always certifies if he be a Baron because he hath the Record before him but he cannot certifie he is no Baron because he hath not the Record thereof before him 4. No Fine can be levied of a thing Personal as an Annuity to a Man and his Heirs but a Dignity is a thing Personal and so he took notice of the difference betwixt the Honours of Peerage which are Personal and the Honours that are Feodary and Officiary which have reference to an Office or Land 5. He did argue ab inconvenienti that this Opinion can be no Inconveniency to the Crown but the contrary makes Nobility a meer Pageantry by putting it into the Hands of a weak and angry Father to dispossess an hopeful Son of that which is his Birth-right The Titles of Esquire and Gentleman are drowned in the greater Dignity of that of a Peer and when the greater are gone the other must go with it And then from being a Nobleman to day he and the rest of his Family must be below all Nobility and be called Yeomen or Goodman Villers to morrow which may bring great Confusion to a Noble Family and all its Relatives and surely this House will not put such a publick Disrespect on such a Family by agreeing to so unjust an act of one Man And that which was most relied upon was a Resolution of this House in Stafford's Case Anno 1640. which no Man without Indecency can question it passed not sub silentio or obiter but upon debate neither could it be any way invalid upon account of the Times for it was in the Infancy of that Parliament and that wherein a Peer's Case who sits now in this House was judicially before them and therefore there is no reason to shake that Judgment more than any other Judgment of that time My Lord Cooke in his 4 Inst Chapt. of Ireland is of Opinion that Honours cannot be extinguished but by Act of Parliament Then as to the Precedents that have been urg'd on the other side there are none directly to the Point for as to Nevil's Case there are very few Cases cited there aright and are not to be look'd upon as Law The Case of my Lord of Northumberland in 3 4 Phil. Mar. was by way of Creation and so was the Case of Dudley And Dugdale in his Baronage of England pag. 270. gives an account of it and the rest of the Precedents are above Two hundred years old which passed sub silentio and are not to be vouched unless they were disputed The first is Bigod's who in the time of Edw. 1. surrendred the Honour of Earl-Marshal of England to the King who granted it to him in Tail This Honour is Officiary and therefore nothing to the purpose and the Surrender was made thro' fear Walsingham 95. The next is the Earl of Pembroke's Case who in 8 Edw. 4. was made Earl in Tail and by this he had the
yet doth further agree That this Parish-Church was never presented to by any Person at all But he insists upon it That now it is void the King hath a Right to present to it by force of his Prerogative upon this Avoidance tho' the Act saith That the Bishop shall present after the Decease of Dr. Tennison or the next Avoidance The Query is whether the King's Prerogative can operate upon this Vacancy of this Benefice thus filled and thus avoided against the express Words of an Act of Parliament It will be necessary to repeat the Words of the Act and they are to this Effect That all that Precinct or District of Ground within the Bounds and Limits there mentioned from thenceforth should be a Parish of it self by the Name of the Parish of St. James's within the Liberties of Westminster and a Church thereupon built is dedicated by the Act to Divine Service and that there should be a Rector to have the Care of Souls inhabiting there and then after a full Commendation of the Merits and Services of Dr. Tennison in that Place the now Reverend the Bishop of Lincoln It doth Enact and Ordain him to be the first Rector of the same and that the said Doctor and his Successors Rectors of the said Parish should be incorporated and have a perpetual Capacity and Succession by the Name of the Rector of the said Parish Church and by Virtue of that Act should be enabled by the Name aforesaid to sue and be sued to plead and to be impleaded in all Courts and Places within this Kingdom and should have Capacity to hold and enjoy purchase and acquire Lands Tenements and Hereditaments to him and them Rectors thereof for ever over and above what is given and settled by that Act to any Value not exceeding 200 l. per Annum Then it Enacts That the Patronage Advowson or Presentation after the Decease of the said first Rector or Avoidance thereof shall or should belong and appertain and by that Act shall or should be vested in the said Bishop of London for the time being and his Successors and in Thomas Lord Jermyn and his Heirs for ever Then it Enacts That the first Rector after such Decease or Vacancy shall be presented or collated by the Bishop of London for the time being and the next to succeed him shall be presented by the Lord Jermyn and his Heirs and the two next succeeding turns by the Bishop and his Successors and the next turn to the Lord Jermyn and his Heirs and then the like Succession of two turns for one to the Bishop and his Succession and of one turn to the Lord Jermyn and his Heirs for ever after This is the Act. Now 't is to be considered That this Law doth bind the King and would bind him in point of Interest if he had been Patron of St. Martins in Right of his Crown and if a Right or Interest of the Crown shall be bound by an Act of Parliament a Prerogative shall be in no better plight It cannot be said That he shall not be obliged by it because not named for tho' and where he is not named he is bound by Multitudes of Statutes according to the 5 Rep. 14 and 11 Rep. 68. He is bound by all Acts generally speaking which are to prevent a Decay of Religion and so he is bound by Acts which are for further Relief or to give a more speedy Remedy against Wrong It is no Objection that this Law is in the Affirmative for that it is introductive of a new Law in the very Subject that is created de novo Then before this Act the King had no Right over this and if he hath now any over it he can only have it how when and as the Act gives it not contrary to it then the Bishop was Patron of the Place out of which the Parish is created And the Bishop can claim no other Right than what the Act gives him Bro. tit Remitter 49. 't is so agreed 1 Rep. 48. and in 2 Rep. 46. if Lands be given in Fee to one who was Tenant in Tayle his Issue shall not be remitted because the latter Act takes away the force of the Statute de donis Suppose he had been Enacted to be Patron of a Living to which he had a former Right there could be no Remitter because as to particulars the Act is like a Judgment and estops all Parties to claim any thing otherwise than according to the Act and yet Remitter is a Title favoured in the Law then if he have this only by force of this New Act and another Person should present in his turn so given 't would be an Injury if a Subject did it and consequently the King cannot do it for the Prerogative which this Act gives or which the Common Law gives is not yet come to take place Tho' this be an Affirmative Law yet according to the Rule taken and agreed in Slade's and Drake's Case Hob. 298. being introductive or creative of a new thing implies a Negative of all that is not in the purview and many Cases are there put to this purpose Then also it being particular and express it implies a Negative because this and the other are inconsistent But First 'T is observable all Prescriptions and Customs are fore-closed by a New Act of Parliament unless saved Suppose there was an Act of Parliament in Force before this viz. That the King should present yet another Statute Enacting somewhat new and inconsistent will carry a Negative and if so in Case of a former Act there 's almost as much Reason for a Prerogative It must be agreed That a Man may prescribe or alledge a Custom against an Act of Parliament when his Prescription or Custom is saved or preserved by that or another Act but regularly a Man cannot prescribe or alledge a Custom against any Act of Parliament because 't is matter of Record and the highest and greatest Record which we know of in the Law 1 Inst 115. Suppose Money were by the Law payable annually and an Act comes and says it shall be paid Quarterly by even and equal Portions at the four Feasts for the first Year this will certainly alter the Law 'T is true That a consistent Devife or Statute is no Repeal or Revocation but if a new Act gives a new Estate different from the former this amounts to a Repeal Fox and Harcourt's Case The same Rule holds even in Case of the King as in the Archbishop of Canterbury's Case 2 Rep. 46. and agreed to in Hob. 310. the Query was if the Lands came to the King by 31 H. 8. cap. 13. or by the Stat. of Edw. 6. and objected That the latter was in the Affirmative yet held That it came by the latter because tho' they were Affirmative Words yet they were differently penn'd and the last being of as high an Authority as the first and providing by express Words That by Authority of that Parliament
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 Name of his Kinsman Thomas Arnold the Sum of 40 s. all to be paid out of his Personal Estate and then proceeds in these words Being determined to settle for the future after the death of me and my Wife the Mannor of Furthoe with all the Lands Woods and Appurtetenances to charitable Vses I devise my Mannor of Furthoe with the Appurtenances unto Sir Lionel Jenkins Kt. William Dyer Matthew Johnson and Thomas Bedford and to their Heirs and Assigns for ever upon trust that they or their Assigns after the death of him and his Wife should pay and deliver yearly for ever several particular Sums to Charitable Vses therein mentioned All the Particulars amounting in the whole to 120 l. per Annum and charged nothing further on the said Mannor but the Expences of the Trustees in the Execution of the said Trust The said Arnold soon affter died the Wife is also since dead Sir Lionel Jenkyns and William Dyer also dead In Trinity 1692. the Attorney General prefers a Bill against the Appellant as Heir at Law to settle and establish the said Charities and to enforce the Trustees to act or to transfer their trust Estate To which they answer and the Heir by his Answer claimed as Heir at Law the Surplus of the Charity Estate over and above what would satisfie the yearly Payments expressed in the Will and the Charges of executing the said Trust upon a Reference to a Master to ascertain the Court of the yearly value of the Mannor he reports it worth 240 l. per Annum and worth the same at the time of making the Will And on hearing the Cause the Court declared That all the Profits of the Premisses ought by the purport and intention of the Will to be applied to the Charities therein mentioned and that the Appellant Arnold the Heir at Law is totally excluded from the Surplus with direction how the Surplus should go in augmentation of some of the Charities nevertheless in case the Appellant should Seal and Execute to the Trustees a Release and Conveyance of the Premisses according to the Decree then he to have his Costs out of the Sale of Timber and that the Trustees be indempnified And it was argued on behalf of the Appellant That this Decree was not equitable Some Questions were made about the distribution of the Surplus amongst only some of the Charities and about the value but a Surplus was agreed to be in the Case and 't was chiefly insisted upon that the Surplus ought to go and be to and for the use of the Heir at Law for that the Estate is not increased by any subsequent or accidental Improvement and so not like the Case of Thetford School but here at the time of making the said Will was and now is of a good value beyond the Sums given and was so known to be by the Testator and the particular Charities given by the Testator are particularly and expresly named and limited and do amount only to so much as is less than the value of the Land and thS urplus is not disposed of and consequently ought to be the Heirs For as at the Common Law in a Will what is not given away must descend whether you speak of Land or the interest in it so in Equity whatsoever Trust or part of a Trust is not declared and expressed the same shall be for the benefit of the Representative of the Testator either Heir or Executor as the Case may happen Then these Bequests or Devises being particular and express they do and will controul and expound nay restrain and qualifie the meaning of general precedent words That Expression of his being determined to settle his Mannor to charitable Uses will be qualified by the Particulars afterwards as is Nokes's Case in 4 Rep. and many others in the Books Besides 't is not accompanied with any term of Universality that excludes the Construction contended for and if it had been so largely expressed those general words of his designing to settle the whole may be intended only as a Security that the particular Charities may be certainly answered And by such Construction all the words of the Will may be satisfied and then the Trustees may convey the Premisses to the Heir at Law and take Security for the same saving and reserving all the said Charities devised with all reasonable Charges and Deductions without prejudice to the Will of the Testator or to the said Estate which must nevertheless be liable to answer and make good the same so that there can be no Damage done to any of the Parties or Interests concerned by this Construction nay it is the adding a further Security for their payment Now it is plain he designed the Sums given to the particular Uses and no more for that they are all so particular and express and it is pursuant to the Rules of Law and Equity in all doubtful Cases to adjudge in favour of the Heir at Law and not to extend the general words of a Will to enlarge a Charity beyond the intent expressed especially against a near Relation and Heir as this is viz. his Brother's Son Besides the Testator was bred a Civilian and as such knew how fully to express himself if he had intended the Overplus to go in increase of the Charity Or if he had intended them more then is mentioned he would have declared himself in such manner as should exclude all doubt On the other side it was argued That the Testator's intent plainly appeared by his Will to dispose all his Estate wholly to charitable Uses and that the words of the Will were sufficient to carry the whole Estate to that purpose and that it did not appear by his Will that 't was his intent to give his Heir at Law any thing out of his Real Estate that his determination to settle his Mannor with the Appurtenances was to settle the whole that what is not disposed of in Particulars is to be directed by the Court of Chancery that that Court hath done right in directing it in augmentation of the Charities mentioned because the Testator's intent was most in favour of those which are so mentioned That if the Query were askt What shall be done with the Surplus if any The Answer is natural viz. I am determined to settle the Mannor that is the whole on Charitable Uses That the Testator by his Will expressed some Care for his Sister and for John Boncher his Nephew and other his near Relations but neither by any Expression or Implication pointeth at any provision designed for his Heir at Law but for the Excluding him of all Pretences hath bequeathed him 40 s. and no more that the other is to contradict his plain Intent 't is to make a new Will for him contrary to the determination which he saith he had made And accordingly the Decree was affirmed Sir Richard Dutton Plaintiff Versus Richard Howell Richard Grey and Robert Chaplain Executors of Sir John
specially That if Parol Evidence or a naked Averment should be admitted then they find to such Uses But here 't is like finding the Badges of Fraud without finding the Fraud it self or a Demand and Denial without finding a Conversion upon neither of which can the Court judge the Thing to be a Fraud or a Conversion And for these and other like Reasons it was prayed that the Judgment might be reversed It was argued on the other side with the Judgment That this Fine thus levied was not to the use of the Husband but of the Wife and her Heirs that the Fine is not to the Uses in the Deed of the 29th but controuled by that of the 31st 'T was agreed that if there be a Deed to levy a Fine and in pursuance thereof a Fine is levied to the Person of the Lands and at the time no Proof shall be allowed that the Fine was to any other Use but if it be in case of a subsequent Deed then Averment may be against it but by the making of a precedent Deed all Parties are estopped to contradict it unless there be another Deed of equal Nature to controul that Where the Deed is punctually observed there 's no liberty to aver the contrary but where 't is not pursued the Averment is consistent Where it doth vary yet if nothing doth appear to the contrary there the fine shall be construed to be to the Uses of the Deed by construction of Law a Wife is bound by the Husband's Declaration and if the Fine be in pursuance of the Husband's Deed 't is as binding to her as if she were a Party An Infant cannot avoid a Fine where there was a Deed agreeable but by reversing it Then 't was argued That here was such a Variance as did allow of such Averment that 't is true the Deed of 29. had been a good Declaration of the Uses of this Fine notwithstanding the Variance if the Writing of 31. had not been made but there being a Variance that is admissible that this Fine now found differs as much from that in the Deed as if it had been levied at a time after that levying it before makes it not the same The Woman perhaps here did agree to levy a Fine at this distance of time that she might in the mean while have a competent Provision out of her Husband's Estate for her Joynture then when she levies this Fine at a different time she doth not do it in pursuance of the first Deed. Then 1 Rep. 76 99. 3 Bulstr 231. 2 Rolls Abridg 251. 2 Cro. 646. 2 Rolls Abridg. 799. Savil 124. 1 Leon. 210. 3 Cro. 210. 1 And. 240. were quoted and either answered or applied to this Point of Variance Then 't was said That there was a difference between a Fine that varies from a precedent Deed and a Fine that is followed with a subsequent Deed or Declaration of Uses If there be a subsequent Declaration the Heir at Law cannot aver that 't was to the use of the Conusor and his Heirs or to any other use then what is in the Deed the Party himself or his Heirs cannot aver it but they are estopped by this Deed tho' subsequent however a Stranger is at liberty to make such Averment But if a Deed be precedent and the Fine varies and is not the same there none are estopped neither the Party himself his Heir nor a Stranger because the Fine stands alone without any Deed referring to it and declaring the uses of it ' Then 't was urged That this second Deed was sufficient to declare the uses of this Fine If the use arise upon or by transmutation of the Possession as by Fine or Feoffment 't is sufficient without any Deed the use arises only upon the Parties Declaration or Appointment If without a transmutation of Possession there must be some Agreement binding the Party upon some Consideration for the use being founded in Equity the Chancery would never relieve where there was no transmutation of Possession or Agreement upon Consideration and if in Consideration of Blood it must be by Deed because the Consideration is not binding without it Moore 's Rep. Callow and Callow If this Writing of 31. had expresly declared that it should enure to the Husband and his Heirs upon such a Contingency this had been a good original Declaration of the use and would have altered the Estate because of the transmutation of the Possession and as 't is now penned 't is a good Writing sufficient to declare the uses of the Fine any sort of Agreement whereby the Parties intent appears is sufficient an use is an equitable thing and if it appears to have been intended that is enough 2 Leon. 14. Brent's Case any Agreement between the Party that hath the Estate and him who is to have it may raise an use in this Case a Bargain and Sale of the Lands carries the use tho' no mention of it 8 Rep. Fox's Case Crossing and Scudamore In this Case there was an Agreement betwixt Husband and Wife that he should have the Lands if he made a Jointure A Bargain and Sale tho' not inrolled a Charter of Feoffment without Livery shall raise the use of a Fine levied between the same Parties therefore this Writing is a good Appointment But suppose it were not so of it self 't is sufficient to controul that of the 29th for 't is agreed thereby that all Deeds shall be revoked which shews plainly that the Fine was not to be to the uses mentioned in that Deed especially when it varies from it A Parol Declaration of the Mind of the Party will be enough to controul and hinder the raising of an use by the Deed and Fine where different and if so then the use here is to the Wife and her Heirs Then supposing the Variance frivolous and immaterial this Writing of the Husband and Wife is a good appointment the Trustees or Conusees of the Fine need not to be Parties to the appointing or declaring of the uses The Indenture precedent is but directory and if there be another direction under Seal before the Fine it must over-rule the first Writing of it self seems enough 2 Cro. 29. 3 Cro. 571. But suppose an Indorsment on the Indenture revoking one use before the Fine be levied would not that controul it This is rather like a last Will and the last before the Fine must stand A Covenant to stand seized must have all the necessary Parts of a Deed so as to have been obligatory in Chancery before the Statute but a meer Declaration of uses need not be so formal The use declared by the 29th was always revocable till the Fine was levied and this is sufficient both to revoke the last Declaration and to declare new uses this amounts at least to a Deed-Poll and therefore sufficient Then were cited Moore 22 512. Latch 139. and many other Authorities And upon the whole 't was prayed that the Judgment should
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
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
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