Andrews, on the Demise of Jones v Fulham
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1791 |
| Date | 01 January 1791 |
| Court | Court of the King's Bench |
English Reports Citation: 95 E.R. 390
IN THE COURT OF KING'S BENCH, AT WESTMINSTER
[263] andrews, on the demise of jones, against fulham. Testator bequeaths leaseholds to his wife for life and after her death " to such child as she is now supposed to be pregnant with, and to the heirs of such child for ever; provided that i£ such child shall die before the age of twenty-one, having no issue of its body, then the reversion " to his wife and two sisters and their heirs respectively in thirds. The testator's wife never was enseint. This devise to the wife and sisters is good, and took effect notwithstanding*1. V. Bradford v. Foley, Doug. 63. Statham v. Bell, Cowp. 40. Avelyn v. Ward, 1 Ves. 420. Fonereau v. Fonereau, 3 Atk. 315. S. C. 2 Stra. 1092. 2 Eq. Ab. 294. Fearne Conting. Eem. 401. Upon a trial in ejectment, (which was before Lord Hardwicke, when he was Chief Justice of this Court) a case was ordered to be stated for the opinion of the Court: and it was briefly this: Robert Wight being possessed of certain lands in fee, and also of several houses for the remainder of a term of ninety-one years, by his last will dated 8 December 1686 devised to his wife Catharine all his lands whether freehold or leasehold for her life, and after her death, " to such child as my said wife is now supposed to be pregnant with, and to the heirs of such child for ever; provided that if such child shall die before the age of twenty-one, having no issue of its body, then the reversion of one third of the said lands, &c. shall go to my said wife and her heirs for ever;" and then he devise* the two other thirds of the premisses, in like manner, to each of bis two sisters Anne and Elizabeth, and makes his wife executrix. The testator soon afterwards died, but after his death Catharine his wife bad no miscarriage or child before her marriage with one Jones, which was several years after the testator's decease. In December 1686 Catharine proved the will, and assented to tbe bequest of the housea, and lJJXSWt.. TRINITY TEEM, 11, 12 GEO. II. 1738 391 enjoyed the tame till her death, which, hapgaaed LZ29. And 26 June 1730 administration of the goods of Robert the testator, unadministred by Catharine, cum testa-men to annexo, was committed to Edward Jones her son, who is the lessor of the plaintiff. And this ejectment was brought against the daughters of Anne, one of tbe sisters of the teitator, for one third of the leasehold premises. And the question was, whether the same belongs to the lessor, aa administrator de bonis non of Robert the teitator, or is well bequeathed to Anne the sister. [264] The ease was argued Michaelmas term last by Mr. Bootle for the lessor of the plaintiff, and Serjeant Eyre for the defendants; and in Hilary term last by Serjeant Wright for the lessor, and Solicitor General Strange for the defendants. On the side of the lessor of the plaintiff it was argued, that in this case the questions proper to be considered are these two: (1) whether the devise, after the death of Catharine, to such child as she is supposed to be pregnant with, be a good devise. And (2) supposing this to be good, whether the further disposition, under the proviso, of the reversion of the premisses by thirds to the testator's wife and sisters and thoir heira, is good or not. As to the first point, it is certain that a present devise to an infant in utero matris is void, but a future devise to such an one is good*2: and such a, devise is contingent, and the law will wait for the contingency, as for a thing that will naturally happen. The present devise therefore is good ; and it is to be considered iu the nature of a remainder to the first and other sons unborn, in the common course of disposition and settlement; not as to a person actually in esse, but as to one who will arise according to the common course of nature. A devise to a monk, &c. is materially different, because he is merely an imaginary person; and he is not capable of taking either in prasenti or in futuro, because his deraignment depends not on his own will. Moor. 637. 2 Roll. 415 D. 1 Roll. R. 254. S. C. 2 Bulst. 272. S. C. Cro. Jao. 376. Raym. 164. It will probably be objected that this devise is void, because it it a devise to one who never had a being; whereas an infant in utero is in esse, and may be vouched, according to 9 H. 6, 24. And it must...
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