Baliard v Dynon
| Jurisdiction | England & Wales |
| Date | 1808 |
| Year | 1808 |
| Court | Court of Common Pleas |
English Reports Citation: 127 E.R. 841
Common Pleas Division
Referred to, Newcomen v. Coulson, 1877, 5 Ch. D. 137. Discussed, Serff v. Acton Local Board, 1886, 31 Ch. D. 683.
divided, but should remain entire to the head of his family. The case of Doe v. Flower was a mere nisi pries decision, and ought not to overthrow well-established authorities: it was also materially distinguishable, for there was no personal property to introduce the assistance of the statute of distributions. That devise too might welt be void for uncertainty, being much more disputable than this, for it might be contended to comprehend any or all of five families, the testator's, his brother's, who might be only hiss and his wife's, as well on the father's as on the mother's side. It is riot true that in the cases cited, there has been a quasi intestacy : the statute of distributions has been called in, not to supply the will, but to interpret it. Cur. adv. vult. [269] MANSFIELD C. J. now delivered the opinion of the Court. (After referring to the language of the will,) Perhaps the strongest argument against the devise is, that it is uncertain. The question here turns upon the expression " relations on my side the testator has not in this passage said " my nearest relations." Lt another part he gives five pounds to his nearest relation. The state of the family does not throw much light upon this latter clause ; but we may guess that he meant Aynsworth Thwaites, who was his nearest male relation. If in the latter part he meant him, the word " nearest " equally applies to the other maternal cousin in the same degree, who is one of the lessors of the Plaintiff, which is an argument against rejecting the maternal line. Now although relation is a word of very vague and general import, yet it has obtained a certain degree of ascertained meaning in the courts where questions of this sort have arisen with respect to personal property ; that is, it means those who are eutitled to take as relations under the statute of distributions. This rule of interpretation has been adopted to controul the more extensive and lax sense of the word. The term then having obtained this construction in courts of equity, I do riot see why it should not obtain the same construction in courts of law ; and if so, the consequence is clear, that the three first cousins who were living at the time of the testator's death, are entitled to take. Pyot v. Pyot is a strong case, and goes to a length which rather startled me at first. I did not before know that relation was nomen multitudinis, and to be applied to kindred in the plural as well as in the singular, but Lord Hardwicke says it is. There is no difference between that case and this, except that there the will distributed personal as well as real property. Adopting this sense of the word, I neither see any other persons who are entitled to take, nor such a (270] degree of uncertainty as to prevent the devise from taking effect. The words on my side," cannot exclude the maternal relations, for it is impossible to contend that the mother is not as nearly related to the devisor, and as much on his side, as the father and the paternal relations. In respect to the proportion which the Plaintiff is to recover, the devise speaks at the time of the testator's death : there are cases where estates have passed away from the children of the eldest son. Suppose a devise to A. for life, remainder to his first and other sons in tail male ; if the first son of A. dies in the testator's lifetime, his son cannot take. Various reasons have been given why after-purchased estates should not pass by a devise, but I do not understand that the true reason is, because the devise is supposed to speak at the time when it is penned. Lord Mansfield said, a will was an appointment to uses, and therefore could not operate on that which was not then in seisin. John Gifford is not entitled to any share, he is too remote, and the verdict must stand for two-thirds of the...
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