Blunket against Holmes
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1685 |
| Date | 01 January 1685 |
| Court | Court of the King's Bench |
English Reports Citation: 83 E.R. 792
COURT OF KINGS BENCH
792 PASCH. 13 CAR. II. B. R. 1KBBLB.29. [29] 83. blunket against holmes. May 18. Siderf. 47, pi. 6. Demise, Br. 16. H. demised copyhold to bar. & fern, and the heirs of the body of the fern, if they shall attain to 14, they suffer a recovery, and then they have issue, which after his death attains to 14. Sp. Verdict, 2 Leonard, 11, pi. 16. 1 Brant. 1, pi. 2. 2 Leonard, 92, pi. 115. 3 Cr. 526, pi. 5. 2 Or. 461, pi. 6. That this is all one as to say, when T. dyeth without issue. A demise was found by special verdict thus : I give my messuage to my son Thomas for his life; and if he dye without issue of his body then living at the time of his decease, to Leonard a son by a second husband, and his heirs : but if T. have issue living at the time of his decease, then to T. and his heirs. T. suffers a common recovery to the use of himself, &c. Allen for the pi. This is no estate tail, because the limitation to L. is not absolute upon an estate tail but upon Thomas's dying without issue living at the time of his death : and this point hath been agreed by both parties, and so waved it. But he argued that L. hath not any contingent remainder upon the death of Thomas, which is only when a remainder is in obeyance until the contingent happen : Com. 35. But by executory devise where the fee is vested in somebody always, but to be divested by a future contingent, thia cannot be by way of remainder, because a fee cannot be upon a fee so and T. hath an estate in fee simple (and not for life only) immediately : T. being heir at law, and so had a devise been to him for life. This will not displace the fee nor put the estate in obeyance : as Jones (who argued that T. had it but for life) said, relying upon Archers case, which was a mistake : for Robert had an estate there in fee simple, having only by the will an estate for life, and being heir at law. 2. That was a devise of a remainder in tail, and so an obeyauco of necessity, because the contingent was subsequent, but here the contingent is precedent and to be in the lines of the parties. And that T. hath a fee simple is clear, because the limitation is to his right heirs (if he dye having issue, &c.) which cloth not make his heirs purchasers, but are declaratory, that if T. have no issue, then L. shall have it. This giveth nothing to T. that he had not before, and this was the moat genuine meaning of the will; because the sons...
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