Benjamin Josh v Isaac Josh
| Jurisdiction | England & Wales |
| Judgment Date | 02 November 1858 |
| Date | 02 November 1858 |
| Court | Court of Common Pleas |
English Reports Citation: 141 E.R. 185
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 28 L. J. C. P. 100; 5 Jur. N. S. 225; 7 W. R. 122.
[454] benjamin josh v. isaac josh. Nov. 2nd, 1858. [S. C. 28 L. J. C. P. 100; 5 Jur. N. S. 225; 7 W. R. 122.] Testator devised to a younger son, as follows,-" All that my messuage or dwelling-house and premises, with the piece of land thereto adjoining in T. St. L., with their respective appurtenances." Upon a special case, it was stated, that, when the testator first became possessed of the property (40 years ago), there was no fence to part the garden (No. 566 on the plan) from the land, and the parts numbered 567 and 568 formed one field, which was then called "The tive acres;" that, about 30 years ago, he planted across it a fence, and after that called 567 " The Pear Tree Piece," and 568 " The Second Grass Piece ;" that the other pieces were in like manner separated by fences, but there was a communication with all of them by means of gates : that the turnpike-road which separated 573 and 574 was made by the trustees under an act of parliament some time after the testator had become possessed of the property, the land being purchased by them of the testator for that purpose; and. that the testator used to call the different pieces " grounds :" Held, that the devise was riot confined to " The Pear Tree Piece," but included the other contiguous closes up to the turnpike-road.-Qu?ere, whether it did not also include the piece beyond the turnpike-road. This was an action of ejectment for the recovery of land in the pariah of Tilney St. Lawrenee, in the county of Norfolk, commenced by writ issued on the 20th of February, 1857; to which the defendant appeared and defended for the whole of the land therein mentioned. The cause came on to be tried before Lord Campbell, C. J., 186 josh v. josh s c. b. n. s.) ise. at the last Summer Assizes in and for the county of Norfolk, when a verdict was found for the plaintiff, subject to the opinion of the court upon the following case :- The plaintiff is a person described by the words " my son Benjamin Josh " in the will of Isaac Josh hereinafter set out; and the defendant is the eldest son and heir-at-law of the said Isaac Josh. The said Isaac Josh died on the 14th of October, 1856, having previously made his will in writing, bearing date the 23rd of July, 1856, and attested as required by law in that behalf. The said will and attestation are respectively in the following words :- " I, Isaac Josh, of Tilney St. Lawrence, in the county of Norfolk, farmer, do hereby revoke all wills and testamentary dispositions made by me at any time heretofore, and do publish and declare this to be my last will and testament. I give and devise all that my messuage or dwelling-house and premises, with the piece of land thereto adjoining, in Tilney St. Lawrence afore-[456]-said, with their respective appurtenances, unto my son Benjamin Josh, his heirs and assigns, for ever: And I give and bequeath all my personal estate and effects of every kind unto my son Benjamin Josh, his executors, administrators, and assigns, absolutely : And, lastly, I nominate and appoint my said son Benjamin Josh and Henry Bnggs of Clench- wharton, in the said county, farmer, executors of this my will. In witness whereof I the said Isaac Josh, the testator, have hereunto subscribed my name this 22nd of July, 1856. "The mark of X " Isaac Josh. "Signed, published, and declared by the said Isaac Josh, the testator, as and for his last will and testament, in the presence of us, who in his presence, and in the presence of each other, have hereunto subscribed our names as witnesses. " W. Eggett. /Clerks to Mr. Pitcher-, "W. R Rackham, jun.\ solicitor, Lynn." At the times of the making of the said will and at the death of the said testator, he was seised in fee of a messuage or dwelling-house and land in the parish of Tihiey St. Lawrence, in the said county, and delineated in the map or plan hereunto anexed and to be taken as part of the case, the said land being coloured green, and which map or plan is a copy of that part of the map or plan of the said parish of Tilney St. Lawrence made under the provisions of the Tithe Commutation Act (G & 7 \V. 4, c. 71) which relates to the said land,-the figures 566, 5G7, 568, 569, 570, 573, 574, being thereon affixed for the purpose of referring thereto in the instrument of apportionment made under the said act, The testator became possessed of the said land upwards of forty years ago, and continued to occupy it [457] from that time until his death. When he first became possessed of the laud, there was no fence to part the garden (566) from the restj of the land j and the parts numbered 567 and 568 formed one field, which was then called " The Five Acres." Nearly thirty years ago, the testator planted a row of plum-trees across " The Five Acres" as a fence; and, after that, 567 was called by the testator and by other persons "TheTear-Tree...
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