Bebb and Another against T. S. Penoyre, Elizabeth Ann Castell, C. Littledale, and Catherine Louisa his Wife, R Cook, Clerk, and Ann Maria his Wife, and J. Drummond and Harriett his Wife
| Jurisdiction | England & Wales |
| Judgment Date | 05 May 1809 |
| Date | 05 May 1809 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 965
IN THE COURT OF KING'S BENCH.
Referred to, Montgomery v. Montgomery, 1845, 3 Jo. & Lat. 61. Held obsolete, Smyth v. Smyth, 1878, 8 Ch. D. 565.
bebb and another against T. S. penoyee, elizabeth ann castell, ,C. little-dale, and catherine louisa his Wife, R. -CooK, Clerk, and ann maria his Wife, and J. drummond and harriett his Wife. Friday, May 5th, 1809. Two being seised of undivided moieties as tenants in common in fee, qusere whether a devise by the one of his half part to the other will carry the fee 1 But at any rate the fee did not pass by a residuary clause, whereby the testator after several pecuniary bequests, ordered the lease of his house, with his furniture, to be sold, and all the rest and residue to be divided amongst other persons; and appointed executors; for such division of the rest and residue must be intended to be made by the executors as such, and therefore confined to personal property. [Referred to, Montgomery v. Montgomery, 1845, 3 Jo. & Lat. 61. Held obsolete, Smyth v.Smyth, 1878, 8 Ch. D. 565.] The plaintiffs, as surviving assignees of Samuel Castell and Walter Powell, bank7 rupts, filed their bill in Chancery against the defendant Penoyre, as the purchaser at an auction of a certain freehold estate put up to sale by the assignees, and against the other defendants as claiming some interests therein, to compel the completion of the purchase by the one, and the discovery of title against the rest. The defendants in their answer stated the will of John Castell deceased, brother to the bankrupt S. Castell, and contended that under it the bankrupt was entitled only to an estate for life in an undivided moiety of the premises, with remainder in fee to the defendants (excepting Penoyre) by virtue of the residuary clause in the will. And on the hearing of the cause his Honor directed this case to be made for the opinion of the Court. [161] John and Samuel Castell, being seised in fee each of one undivided moiety of the premises in question, John Castell on the 2d day of February 1802, by his will duly executed, devised (inter alia) as follows : " I give to my brother Samuel Gastell my half part of the five freehold houses which I hold with him in Leadenhall-Street, opposite to Cree Church. I give 40001. Batik...
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