Brown v Barkham
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 93 E.R. 368
COURTS OF CHANCERY, KING'S BENCH, COMMON PLEAS AND EXCHEQUER
brown versus barkham. in canc'. On a devise to the heirs males of the body of A. one who is heir male and not heir general shall nevertheless take by purchase. Preced. in Chan. 442, 461. 2 Vern. 729. 1 Eq. Ab. 215, c. 14. Gilb. Rep. Eq. 110, 131, S. C. Sir Edward Barkham having no issue of his own, and only one sister, and two cousins, Robert and Edward Barkharn, 19 Jan. 1709, made his will, and devised the lands in question to trustees and their heirs, " in trust to sell sufficient to pay my debts, and to convey the residue to my cousin Robert Barkham and the heirs males of his body, and in default of such issue to the heirs males of the body of ray great grandfather Sir Robert Barkham, remainder to my own right heirs for ever." Then he gives the interest of 20001. to his sister for her life, and the principal to her children after her death. [36] Robert the first devisee died without issue in the life of the devisor, then the testator died, leaving a sister, who is heir general to Sir Robert the great grandfather ; but the defendant Edward Barkham is heir male of the body of the great grandfather. The question was, to whom the trustees should convey the surplus, whether to the sister, as heir general of the devisor, or to the defendant as heir male of the body of Sir Robert the great grandfather, remainder to the right heirs of the devisor. This case was argued very largely at the Bar. And Cowper Lord Chancellor took time to consider of it, and this term pronounced his decree. Lord Chancellor. If the manifest intent of the testator expounded by natural reason, without regard to legal resolutions, were to govern in this case; I should think it would hardly admit of a question. But since there is an artificial reason in the law, which sometimes stands as opposed to natural (which is right) reason, and is founded upon the opinions and resolutions of Judges, and that taken and allowed to be law; the Courts both of Law and Equity ought to submit to them, when they are fully examined and found to be thus settled ; because otherwise the law would be an uncertain undetermined rule, and lawyers would not know how to advise their clients. I shall therefore inquire how far this Court is hindred in the present case by the fixed rules of law, from pursuing the plain intent of the testator, which was no doubt that the conveyance should be made to the heirs males of the body of Sir Robert the great grandfather, and not to a female, who is heir general to himself, as long as there are any heirs males of the body of the great grandfather. The first objection insisted on was, that it has been often adjudged, that he who takes as a purchaser by the words heir of J. S. immediately, must be compleatly heir of J. S. and that no person can take as heir whilst his ancestor lives. I answer, that this maxim, and the cases founded upon it, are very foreign to the present question; one main ground of the resolution founded on this rule is, that the ISTRABQE.37. HILARY TERM, 3 GEO. 369 term heir in a legal sense denoting the person who is to take after the death of an ancestor, cannot be used as a proper description of a person whose ancestor is living, for the terms of the description are not then verified. But in this case they are com-pleatly verified; the ancestor is dead, and the person who asks the conveyance, is heir male of his body, and as such he is allowed by all to be capable to take by descent: but they say not by purchase. What [37] grounds there are for that distinction will be considered hereafter; at present I shall only observe, that Edward Barkham having all parts of the description verified in him, his case is different from that of Chaloner v. Bowyer, '2 Leon. 70, where a devise was to the youngest son for life, remainder to the heirs of the body of the eldest; the youngest died in the life of the eldest, and the son of the eldest could not take. Why? because he answered neither part of the description, for he was neither heir, nor heir of the body of his father, while he was living; and this objection will hold in many other cases. The second objection, which seems to stand in the way of natural reason is, that there are cases in which it is held, that none can purchase by the words heir male of the body of J. S. unless he be heir general as well as heir male. I have met with but few cases which can be urged with any colour of reason for the proof of this assertion; one is that of Oounden v. Clerk, Hob. 31, in which it is said, that when the limitation is made to the heira male or female of the body, they that will take must have both words verified in them, (that is) they must be both heirs, and also heirs male or female ; and he gives this reason for it, that this is clearly without the letter and intent of the Statute of Westm. 2. In answer to the authority of this case, 1. I observe, that this was not the point then in question, but only an opinion of Hobart's(l), declared incidentally in the argument of the case, and therefore ought to have the lesa weight. 2. The reason that is given for it is by no means satisfactory, or a good one; for the Statute Westm. 2, is no ways pertinent to the question. The whole effect of that statute is, to prevent the alienation of estates which before were considered at common law as fee-simples conditional, and alienable after issue had ; and how this is applicable to the question concerning the description of a purchaser, and whether certain words will be sufficient for that, I cannot...
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