Cook v Gerrard
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 177
COURT OF KING'S BENCH
[180] 27. cook versus gerrard. S. C. 1 Lev. 212. 2 Keb. 206, 224. Vin. Devise, 353, pi. 20. S. C. cited in Free. Chanc. 440, Sympson v. Hornsby. A. seised in fee of lands in demesne, and also of a reversion expectant on the death of R. K. devises the free use of the demesne, to his wife for one year, and then devises the said demesnes, and all other his lands, tenements, and hereditaments whatsoever, not before devised, or otherwise settled, to W. K. habendum immediately from and after the expiration of that year, and the decease of the said R. K. to the said W. K. The devisor dies, and the year expires. W. K. shall have the demesnes presently, and the reversion after the death of R. K.; for it shall be taken reddendo singnla singulis.(a) Also a devise of the free use of lands passes the interest in them. Ejectment.-The plaintiff declares, that Thomas Kempe, on the 20th of October, in the 16th year of the reign of the now King, demised to the plaintiff divers messuages, lauds, and tenements, in Little Finchingfield and Little Sampford, in the (a) [See post, p. 186, n. (g).] 178 COOK V. GERHARD 1 WMS. SAUND. 181. county of Essex, to have from Michaelmas then last past for five years, by force of which demise the [181] plaintiff entered and was possessed, until the defendant ejected him to his damage, &c. Upon not guilty pleaded, the jury found a special verdict to this effect, namely, they found that, before the trespass and ejectment, Sir Robert Kempe Knight was seised of the lands in question (among other things) in his demesne as of fee; and being so seised on the 13th of October, in the 14th year of the now King, made his will in writing, which is found in Juec verba, whereby he devised (among other things) as follows, that is to say, " I do will and devise that my loving wife Dame Elizabeth have the free use of my manor-house called Spaynes-hall, with the orchard and garden thereunto belonging (being the lands in question), for the space of one whole year next after my decease. And my further will and meaning is, that in case I shall happen to die, leaving my wife with child, and the same child be a son, then I do will and devise my manor-house called Spaynes-hall, and all my lands and tenements thereto belonging, and all my lands in Essex, (except the manor of Jekylls and some other lands, expressed in the will), to my said after-born son, and his heirs and assigns for ever." And then he made provision for the after-born child, in case it should be a daughter, by a devise of the manor of Jekylls to her and Mary Kempe his grand-daughter in fee ; but in case he should have no after-born child, then he devised the whole manor of Jekylls to Mary his grand-daughter in fee. And then followed the clause upon which the controversy arose, namely, " and because I am very desirous to continue the possession of the capital messuage called Spaynes-hall, in Finchingfield aforesaid, and of divers lands thereunto belonging, in the name and blood of the Ketnpes, so long as it shall please Almighty God, in case I leave no heir male of my body lawfully begotten, in which name and blood it hath continued for many ages past, and in pursuance of a promise and engagement by me heretofore made to my late dear uncle William Kempe Esquire deceased, for the purpose aforesaid, when he gave the same to me, I do therefore hereby will, give, and devise the said capital messuage called Spaynes-hall, and lands aforesaid, in manner and form following : /tern, I give and bequeath unto my loving kinsman Thomas Kempe, citizen and draper of London (who is the lessor of the plaintiff), all that my said capital messuage called Spaynes-ball, and all the lands thereunto belonging, and all other my landx, tenements, and hereditaments ivhatsoever, with their and every of their appurtenances in Finohingfield aforesaid, and Sarapford, in the said county of Essex, not heretofore by this my lust will and testament willed and demised, m otherwise settled and [182] disclosed of by any ad by me heretofore lawfully executed, to have and to hold all and singular the said capital messuage called Spaynes-hall and all other the before-mentioned premises with their appurtenances, unto the said Thomas Kempe, immediately from and after the expiration of one whole year next after my decease, and the decease of Euth Kempe my daughter-in-law, for and during the term of his natural life, doing no strip or waste. And after the decease of the said Thomas Kempe, I will, give, and devise the same premises to Thomas Kempe, eldest son of the said Thomas Kempe, by Elizabeth his now wife, for the term of his natural life, doing no strip or waste," with the remainder over in tail to the heirs male of Thomas the son, remainder over in tail to the heirs male of Thomas the father, with limitation over to the right heirs male of the devisor. And they further found, that the said Ruth Kempe, widow, the daughter-in-law of the said devisor, and late the wife of one William Kempe Esquire, the only son and heir apparent (while he lived) of the devisor, survived her husband, and was in full life; and that the said Ruth, at the time of the making of the said will, and at the time of the death of the devisor, had divers lands and tenements (besides the lands in question which belonged to the said capital messuage) settled upon her for her jointure for the term of the life of the said Ruth (of the reversion whereof the said devisor was seised in fee at the time of the will and his death). And the jury further found, that the said William Kempe, while he lived, was the only son and heir of the body of the devisor ; and that the said William died in the life-time of the devisor, and that the devisor died so seised without any other issue; and that the lessor of the plaintiff, arid Thomas Kempe named in the will, is the same person; and that the said lessor of the plaintiff, after the expiration of a year after the death of the devisor, entered into the messuage called Spaynes-hall, and the other lands thereto belonging, being the lands devised to Elizabeth for a year, 1 WMB. SAUND. 183. MICH. 20 CAR. II. REGIS 179 and which were not in jointure to Euth, nor otherwise disposed by the devisor, and was seised as the law requires, &c.; and being so seised, demised them to the plaintiff for the term mentioned in the declaration, who entered and waa possessed until the defendant, by the command of the said Euth and Mary, who waa the heir at law, entered upon him and ejected him, as the plaintiff has declared; but whether the defendant be guilty of the ejectment or not, they leave to the judgment of the Court; and if the Court shall adjudge for the plaintiff, they find for the plaintiff, and give damages and costa; and if the Court shall adjudge for the defendant, they find for the defendant. And this case was argued in the King's Bench by Jones [183] for the plaintiff, and by Conyers of the Middle Temple for the defendant. And the case upon the verdict was opened in this manner, namely, Sir Eobert Kempe Knight, was seised of the lands in question in fee, and was also seised of the reversion of other lands expectant upon the death of Euth Kempe his daughter-in-law (whereof Ruth had an estate for her life for her jointure); and being so seised, the said Sir Eobert Kempe, by his will in writing, devised that Dame Elizabeth his wife should have the free use of the demesne lands (being the lands in question) for one year after his death ; and then he devised the demesnes and the reversion (1) together to the lessor of the plaintiff, habendum immediately from and after the expiration of one whole year next after hia decease, and the decease of the said Ruth Kempe, who was tenant for life of the reversion lands, for the term of the life of the said Thomas Kempe, lessor of the plaintiff, doing no strip or waste. And whether Thomas Kempe the lessor should have the demesne lands immediately after the expiration of the year, or should have nothing until the death of the said Ruth, and if the demesne lands should descend to the heir in the mean time, was the question; for if he must wait until the death of Ruth, then the plaintiff and his lessor have not any title, because the said Euth waa found to be living. And Jones lor the plaintiff argued, that Thomas Kempe the plaintiff's lessor had title to the demesne lands (being the lands in question) immediately after the expiration of the year; for though the words of the will are joint, namely, habendum immediately from and after the expiration of one whole year after my decease, ami tin; decease of my du,\ightm--in-ktw, Euth Ktmpe, yet, he said, the words shall be taken dis-tributively, and reddeiulo singula sinyidis; that is to say, that the devisee Thomas Kempe shall have the demesne Imid immediately from and after the expiration of the year, and the lands in reversion from and after the decease of the said Euth Kempe; and upon this ground he cited divers books, namely Gro. Eliz. 199, Veale v. Roberts.^) Stephens was seised of two customary messuages with the lands thereto belonging; and Heydon was seised of two others with the lauds thereto belonging ; and W. and W. were possessed of 10 acres called Normors, being the lands in question ; all which were parcel of the possessions of the Abbey of Gloucester: the abbot and convent demised for years to Johu Veale all the said messuages and lands thereto belonging, and also the said lands called Normors, hiibendwn the said messuages aud lands, and also the said land called Normors, from the time of the death, surrender, forfeiture, or...
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