Carwardine v Carwardine
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1757 |
| Date | 01 January 1757 |
| Court | High Court of Chancery |
English Reports Citation: 28 E.R. 594
HIGH COURT OF CHANCERY
See Cole v. Sewell, 1848, 2 H. L. C. 226, 234; Egerton v. Earl Brownlow, 1853, 4 H. L. C. 80, 219; Abbiss v. Burney, 1881, 17 Ch. D. 220.
garwardine v. garwardine. 19th Nov. 1757. 28th Jan. 1758. [See Cole v. Sewell, 1848, 2 H. L. C. 226, 234; Egerton v. Earl Brownlow, 1853, 4 H. L. C. 80, 219 ; Abbiss v. Burney, 1881, 17 Ch. D. 220.] It is a certain rule of law, that if such a construction can be put upon a limitation as that it may take effect by way of remainder, it shall never take place as a springing use or executory devise; and therefore a limitation in a settlement to trustees to the use of A. the settler, for life, remainder to B., his intended wife, for life (except as thereafter excepted), remainder to the heirs of the body of A., begotten on B., remainder to A. and his heirs, with a proviso, that if A. should die, and leave such issue as aforesaid, without making any provision for such child or children in his lifetime, the said trustees should stand seised of one moiety, from and after the decease of A., to the use of such child: held, a contingent remainder, and not a springing use, and therefore barred by a fine levied by A. and B.-S. C. Fearne's Ex. Dev. 388 ;. Serj. Hill's MSS.; Perryn's MSS. By indenture bearing date the 25th of August 1708, John Carwardine, in consideration of his intended marriage with Magdalena Williams, and to the intent that a competent jointure might be provided for her, and to the intent that the lands and tenements therein mentioned might remain to the uses after mentioned, conveyed [28] certain premises therein mentioned to trustees and their heirs to the use of the said John Carwardine for life, remainder to the said Magdalena Williams, his intended wife (except in such cases as should be thereafter excepted), for her jointure, remainder to the heirs of the body of the said John Carwardine, begotten on his said intended wife, remainder to the said John Carwardine and his heirs. Then came the following proviso : " And the special trust and confidence in the said trustees and " their heirs is hereby declared to be, that if the said John Carwardine should happen " to die, and leave such issue as aforesaid behind him, he, the said John Carwardine, " not making otherwise a provision for such child or children in his lifetime, then " and in such case the said trustees shall stand seised of one moiety of the said premises " from and immediately after the decease of the said John Carwardine to the use of " such child or children as aforesaid, and be empowered out of the rents, issues, and " profits of the said money, to raise such provision for such child or children as the " said trustees and their heirs shall think fit." John Carwardine and Magdalena his wife, after their marriage, joined in levying a fine ; and he by will devised all his estate from his eldest son, the plaintiff, who was totally disinherited. The plaintiff, as heir at law, brought the present bill, First, to try the validity of the will. Secondly, to set aside a surrender of copyhold as not being pursuant to the custom. And, thirdly, to establish and have the benefit of the settlement on his father's marriage. The cause coming on to be heard on the 14th of July 1756, an issue was directed, which was found in favour *of the will; upon the second point the bill was dismissed, it being triable at law It now came on upon the equity reserved. 1 EDEN, 29. CARWARDINE V. CARWARDINE 595 [29] The Attorney-General and Mr. Comyn for the plaintiff. The estate, in the trustees under the proviso, remained untouched by the fine, which cannot bar executory devises and springing uses; for they being collateral to the other estates and remainders, immediately carved out and independent thereof, could only be affected by any deed which respects them. The exception being introduced between the estate for life to the wife, and the remainders to the heirs of the body of the husband by the wife, it was antecedent to the estate tail, and the fine could not reach it. Hetley, 98. A difference is laid down between a collateral use that does not depend on other estates and an estate limited by way of remainder. In the case of springing uses, as this...
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