Anonymous (1793) 3 Mod 209
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1793 |
| Date | 01 January 1793 |
| Court | High Court |
English Reports Citation: 87 E.R. 135
IN THE COURT KING'S BENCH, CHANCERY, COMMON PLEAS, EXCHEQUER.
3 MOD. 210. EASTER TERM, 4 JAC. 2. IN B. R. 135 case 126. anonymous. By what words in a will the executor may have an authority only, without an interest in the thing devised.-1 Vern. 32, 353, 361, 425, 482. 2 Vern. 323, 430, 545. Free. Ch. 163, 332. 1 Ld. Ray. 423, 622. 9 Mod. 104. 10 Mod. 522. 11 Mod. 108. 12 Mod. 227, 296, Gilb. E. R. 146. Cornyna, 88. 1 Stra. 12. 2 Stra. 1172, 1 Peer. Wms. 14, 21, 34, 96, 700. 2 Peer. Wms. 102, 280, 374, 529. 3 Peer. Wms. 115, 158. Dougl. 574. 2 Terra Rep. 721. 3 Brown, C. C. 324. A writ of error was brought to reverse a judgment in the Common Pleas, in an ejectment for lands in the county of Essex. A special verdict was found, that R. F. was seised in fee of the lands in question ; that he had issue two daughters, Frances and Jane; that his daughter Frances had issue a son Philip, and two daughters Frances and Anne ; that R. F. the father devised to Philip, Frances, and Anne, the children of his daughter Frances, and to Jane, his other daughter, the rents and profits of his manor of Spain for thirty years, to hold by equal parts, vis. the three grand-children to have one moiety, and his daughter Jane the other moiety; "and if it happen that either of them should die before the thirty years expired, then the said term should be for the benefit of the survivor;" and if they all died, then the same was devised over to other relations. Afterwards he made a codicil in these words, " I give power and authority to my executors to let my whole lands for the terra of thirty years, for the benefit and behalf of my children." Anne, one of the grand-children, died without issue. Frances, another of the grand-children, died, but left issue. The first question was, whether the power given to the executors by the codicil will take away that interest which was vested in the grand-children by the willl [210] Mr. Appleton argued that it would not, because the executors had only a bare authority to let it or improve it for the benefit of the children, there was no devise of the land to them. If power be given to executors to sell lands, it is only an authority, and not an interest in them ; but a bare authority only to let is of much less importance. The second question. After the testator had devised the profits of these lands to his grand-children and daughter, equally to be divided during the term, and had provided that if...
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