Doe d. Gill v Pearson
| Jurisdiction | England & Wales |
| Judgment Date | 06 February 1805 |
| Date | 06 February 1805 |
| Court | King's Bench Division |
English Reports Citation: 102 E.R. 1253
IN THE COURT OF KING'S BENCH.
Questioned, Attwater v. Attwater, 1853, 18 Beav. 337. Discussed, In re Mackleay, 1875, L. R. 20 Eq. 190. Referred to, In re Rosher, 1884, 26 Ch. D. 814.
[173] doe, on the demise OF john gill and hannah his wife, against pearson AND others. Wednesday, Feb. 6th, 1805. One having real and personal estates gave by his will several legacies and annuities, which he directed to be paid by his executrixes out of his real and personal estates,, which he charged therewith : and then devised certain lands in Y. to A. and H. (two out of five daughters which he had) and their heirs, as tenants in common, on condition, that in case they or either of Jihem should have no issue, they or she having no issue should have no power to dispose of her share except to her sister or sisters, or their children : and he devised all the rest and residue of his real and personal estates to A. and H. in fee; whom he made his executrixes. On his death A. and H. entered, and afterwards A. levied a fine of her moiety to the use of her husband in fee, and died. Held, that the condition against alienation, except to sisters or their children, annexed to the devise to A. and H. and their heirs was good ; and that for the breach of it by A. in levying such fine, the heirs of the devisor might enter on her moiety ; it being a remainder undisposed of by the residuary clause, which was only intended to operate upon such things of which no disposition had been made by the will, and not contemplating the devise over of -the respective moieties of the daughters on non-performance of the condition. And held, that one of the several co-heirs of the devisor might enter for non-performance or breach of the condition, and recover her own share in ejectment. For that where the entry upon a claim by one of several coparceners, 'who make but one heir, is lawful, such entry made generally will vest the seisin in all as the entry of all. [Questioned, Attwater v. Attwater, 1853, 18 Beav. 337. Discussed, In re Macleay, 1875, L. R. 20 Eq. 190. Referred to, In re Roster, 1884, 26 Oh. D. 814.] In ejectment for the moiety of an estate in the parish of Ackworth, in the county of York, brought upon the demise of John Gill and Hannah his wife, stated in the declaration to have been made on 19th January, 44 G-. 3, a verdict was found for the plaintiff at the last assizes at York before Chambre J., subject to the opinion of this Court upon the following case: John Collett being seised in fee of the estate in question, by will dated 13th of January 1787, and duly executed, first directed that all his debts, legacies, annuities, and funeral expences should be paid by his executrixes out of his real and personal estates, which he charged therewith. And then reciting that he had given a bond for 3001. to his son-in-law R. Cuttle on his marriage with his danghter Margaret as a marriage portion, he therefore only gave to the said R. and M. Cuttle Is. (besides the sum due on the bond) in full of all claim upon his estates or effects. He then bequeathed to his daughter Mary, the wife of D. Unwin, an annuity of 81. for her life, to be paid to her (for her separate use) by his executrixes, by quarterly payments, (with a power of distress for arrears). He also bequeathed to D. Unwin Is. in full of any claim [174] on his estate or effects. He then bequeathed to the children of his said daughter Mary Unwin, viz. Thomas, Fanny, G-eorge, William, and Mary Unwin, 101. each, to be paid to them as they respectively attained their age of 21 years, and after their mother's death. And he willed that if any of the children of his said daughter Mary happened to die before he, she, or they attained the age of 21 years, without having lawful issue, then the share of either so dying should go to the survivors. He also bequeathed to another daughter, Fanny, the wife of James Brinon, an annuity of 91. for life, to be paid to her by his executrixes by half-yearly payments, (for her separate use, and with a power of distress for arrears) ; and he gave the said (a) Le Blanc J. was absent from indisposition. 1254 f DOE V. PEARSON 6:EAST,175. James Brinon Is. in full for any claim out of his estates or effects. He also bequeathed legacies of 201. to each of the children of his daughter Fanny, in the same manner as he had before done to the children of his daughter Mary Unwin. And directed all'the legacies given to his grandchildren to be paid as they severally became due to them by his executrixes. He then devised as follows : " I give and devise unto my two daughters Ann Collett and Hannah Collett all my messuages, lands, tenements, and hereditaments at Ackworth, or elsewhere, in the county of York, (subject to the several legacies and annuities herein-before given by this my will, and made chargeable thereon), to hold to them my said daughters Ann and Hannah, their heirs and assigns for ever, as tenants in common, and not as joint tenants ; upon this special proviso and condition, that in case my said daughters Ann and Hannah Collett, or either of them, shall have no lawful issue, that then and in such case they or she having no lawful issue as aforesaid shall have no power to dispose of her share in the said estates so above given to them ex-[175]-cept to her sister or sisters, or to their children. All the rest, residue, and remainder of my real and personal estates, goods, chattels, and effects- not hereinbefore disposed of, I give, devise, and bequeath unto my said two daughters Ann Collett and Hannah Collett, their heirs, executors, and administrators, and lo constitute them joint...
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