Arthur v Bokenham
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1796 |
| Date | 01 January 1796 |
| Court | Court of Common Pleas |
English Reports Citation: 88 E.R. 957
IN THE COMMON PLEAS.
11 MOD. 148. HILARY TERM, 6 QUEEN ANNE. IN C. B. 957 [148] hilary term. The Sixth of Queen Anne. In the Common Pleas. Thomas Lord Trevor, Chief Justice. Sir John Blencowe, Knt., Thomas Bury, Esq., Robert Tracey, Esq., Justices. Sir Edward Northey, Knt., Attorney General. Sir Simon Harcourt, Knt., Solicitor General. la^'- ò &ò'; '- '5/7 ftt. òòkb'k. . ' ò=ò ! -a^3?QASE 21j arthur against bokenham. A devise of " all such lands, tenements, and estate whatsoever, wherewith at the time of my decease I shall be possessed or invested, or which shall then, or of right doth appertain to me," will not pass an estate purchased subsequent to the making o£W;- c"-' the will.- S. C. Fitzg. 234. S. C. Holt, 750. S. P. ante, 121. Ejectment waa brought for a house in Kent by John Arthur, on the demise of Robert Bokenham, against Frances Bokenham, widow. On not guilty pleaded, there is a special verdict, wherein the jury find, that as to a moiety of the said house the defendant is not guilty ; and as to the other moiety they find, that William Bokenham, Esq., late the husband of the defendant, being commander of Their late Majesties ship "The Grafton," on the third of May, in the year one thousand six hundred and ninety-two, duly made his last will and testament in writing, which they find in hcec verba. It recites, that he was then bound out to sea, and then says, " I do hereby give, devise, and bequeath unto my well-beloved wife, Frances Bokenham, all such sum and sums of money as now is, or hereafter shall grow due to me from Their Majesties for my own and servants service, either by sea or land. As also all such sum and sums of money, lands, tenements, goods, chattels, and estate whatsoever, wherewith at the time of my decease I shall be possessed or invested, or which shall then, or of right doth appertain unto me. And I do hereby nominate and appoint her, the said Frances Bokenham, my well-beloved wife, to be the whole and sole executrix of this my last will and testament." They farther find, that the testator, at the time of the making of the will, was riot seised of any lands whatsoever ; but that afterwards by deeds of lease and release, bearing date the twenty-sixth and twenty-seventh days of February 1693, Sir John Franklin and Thomas Halsey, being seised in fee of the other moiety of the said house, conveyed the same to the said William Bokenham and his heirs, whereby he became seised, and so died without issue of hia body. They find, that the house aforesaid is held in socage, and is of the nature of gavelkind, and devisable by the custom of Kent, and to be divided amongst the heirs male, by hereditary right. [149] They further find, that the testator had two brothers, Robert lessor of the plaintiff, and Harry Bokenham, who was then dead, and had left issue of his body Anne, an infant ; and that Eobert and Anne were heirs at law to the testator. That Robert Bokenham entered into the said moiety, and demised to the plaintiff, upon whom the defendant the devisee entered ; but whether the defendant be culpable, they desired the opinion of the Court. Trevor, Chief Justice, delivered the opinion of the whole Court. - The question is, whether these lands, that is the moiety named in the special verdict, do well pass by the will to the defendant Frances Bokenham, or not? for if they do not pass, then this moiety belongs to the lessor of the plaintiff. And we are unanimously of opinion, that those lands do not pass to the defendant by this will. This question, touching the validity of this will, depends on the consideration of two matters. First, on the consideration of the Statute of Wills, 32 Hen. 8, c. 1, which was made to enable persons to devise lands by their last wills. - Secondly, on the consideration of the custom of gavelkind, which is particularly found in this special verdict. In the first I will consider, whether the statute enables any one to devise lands he is not owner of, nor has any interest in, at the time when the will was made, but purchases lands in his life-time after the making such will. This depends on the construction of the statute 34 Hen. 8, c. 5, which says, " that all and every person and persons having manors, messuages, lands or tenements, shall have full 958 HILARY TERM, 6 QUEEN ANNE. IN C. B. 11 MOD. 180. and free liberty to dispose and devise the same by his last will and testament." Whether the word " having" makes it necessary that the testator should have the possession of, and interest in the lands, at the time of making his will (a) 1 or, whether it be sufficient if he have or purchase the [150] lands at any time after the making his will, and before his death 1 Now in order to come at the meaning of this statute, I will suppose this Act lately made, arid that there had been no construction made thereof before, but that the question was entirely new and undetermined, and that it was now res Integra; what would then be a reasonable construction of those words of the Act? And in the next place, I will consider what constructioti this Act ought to receive, as it has been already expounded and determined, and from the consequence of such determination. Now as to what would be a reasonable construction, supposing it were to be made de novo, and to be now originally expounded, I am of opinion, it would be a very reasonable construction, that this Act should not extend to enable any person to devise any lands he has not, nor is owner of at the time of making his will, unless he republish it; which is the same in substance as new making it. The general rule in exposition of all Acts of Parliament is this, that in all doubtful matters, and where the expression is in general terras, they are to receive such a construction as may be agreeable to the rules of common law, in cases of that nature; for statutes are not presumed to make any alteration in the common law, further or otherwise than the Act does expressly declare ; therefore in all general matters the law presumes the Act did not intend to make any alteration ; for if the Parliament had had that design, they would have expressed it in the Act. Now how will the common law influence this matter before usl First, it is plain by the rules of the common law, that is, such rules as are to govern conveyances and dispositions of estates, that the law did never allow any person, by any conveyance at common law, to dispose of the lands he had not, or had no right or interest in at the time of making and executing such conveyance. [151] And so is 1 Inst. 265. It is there said, and was never yet denied, " if one release all the right he has, and all the right which he should or could have for the future, though in express words which sufficiently shew the intent of the party, yet such release is void, &c." And this was never contradicted by any one. However, there are some exceptions to this rule as to releases of future rights ; that is, that in some cases a man may release a future right, though by the bare release it can never pass ; as 1 Inst. which I mentioned before. If there be father and son, and the son disseise the father, and being in possession make a feoffment in fee...
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