Doe d. Clift v Birkhead
| Jurisdiction | England & Wales |
| Judgment Date | 28 May 1849 |
| Date | 28 May 1849 |
| Court | Exchequer |
English Reports Citation: 154 E.R. 1145
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 18 L. J. Ex. 441. Distinguished, Douglas v. Andrews, 1851, 14 Beav. 354; Sutton v. Sutton, 1891, 30 L. R. Ir. 259. Discussed, Dutton v. Croody, 1863, 33 Beav. 277. Applied, Edmonstone v. Farley, 1868, 18 L. T. 847.
[110] DOE D. clift v. BIRKHEAD. May 28, 1849.-By deeds of lease and release, being the settlement made on the marriage of E. M. H. and W. L ., by which deeds, ; and a tine levied in pursuance of the covenants contained in the release, certain ' lands of which E., the wife of W. H,, and mother of E. M. H., was then seised in ! fee, a settlement was made after the solemnisation of the said marriage, to the use of the said W. H. for his life, with remainder to the use of the said R., the wife of the said W. H. for her life, and then with remainder for the use of the ; said W. B. for his life ; and then for the use of the said E. M. his intended wife, for her life, with remainder to the use of all and every the children of the body of the said W. B. on the body of the said E. M. H. his intended wife to be hegotten, : to be equally divided among them, share and share alike, to take as tenants in common and not as joint tenants, and of the several and respective heirs of the bodies of all and every such children lawfully issuing ; and in case one or more of such children should happen to die without issue of his or their body or bodies, then as to the share or shares of him or them so dying without issue, to the use i of the survivors or others of them, share and share alike, to take as tenants in common and not as joint tenants, and the several and respective heirs of their bodies lawfully issuing; and in case all such children but one should happen to die without issue, or if there should be but one such child, then to the use of such surviving or only child, and of the heirs of his or her body lawfully issuing, and for default of such issue, then to the use of the said E. M. H., the wife of the said : W. H., and of their heirs and assigns for ever. The marriage was duly solemnised. There was issue of it eight children, three of whom died infants, unmarried, and in the lifetime of their parents. E. M., the wife of W. B., survived her husband , as well as the said W. H., and at the time of her death, the limitation in favour of the issue of the marriage came into operation :-Held, that cross-remainders i were here created by apt words in the deed, and that the word " share " must be understood as embracing accruing as well as original shares. [8. C. 18: L. J. Ex. 441. Distinguished, Dmiglu v. Aminwx, (tifll, 14 Beav. 'Mil; Sutton vi. Sultan, 1891, :iO [.. R. Ir. 259. Discussed, Dutton v. Uruoily, 18(53, 33 Beav. j 277. Applied, Edmnistme v. Farley, 1868, 18 L. T. 847.] t Ejectment for certain undivided shares of certain lands and premises in the parishes : of Britwell Salome and Britwell Prior, in the county of Oxford. The first count was on the demise of George Clift, and was for 19-33Gth parts of the property ; the second i was also by George Clift, and was for G-5Gth parts; the third was by .John Pottinger | Birkhead, and was for 19-336ths; and the fourth was by John Pottinger Birkhead, j and was for 6-56th parts. ; The defendants pleaded not guilty, upon which issue was joined. Pursuant to 3 & 4 Will. 4, c. 42, s. 25, the parties agreed to the following case for the opinion of this Courj;:- Elizabjeth, the wife of William Harness, being prior to, and at the date of the settlement next hereinafter stated, seised in fee simple of the lands and premises above mentioned, by indentures of lease and release, dated the 25th and 2(ith of June, 1787, beipg the settlement made previous to the marriage of their daughter and only child Elizabeth Mary Harness with William Birkhead, and l y virtue of a fine levied pursuant to a covenant contained in the said settlement, conveyed the lands and premises above mentioned, situate at Britwell Salome and Britwell Prior, [111] Oxon, (with other hereditaments,) to trustees, to uses following, namely :-To the use of the said William Harness and wife (the father and mother of the said Elizabeth Mary Harness), according to their respective estates and interests therein at the time of or immediately before the execution of the said indenture, until the solemnisation of the intended marriage; and after the solemnisation thereof, to the use of the said William Harness for his life, remainder to the use of the said trustees and their heirs during the life of the said William Harness, to support contingent remainders, remainder to the use of the said Elizabeth, the wife of the said William Harness, for her life, 1146 DOE V BIRKHEAD 4 EX 112. remainder to the use of a trustee for a term of ninety-nine yeais, which has since determined, remainder to the use of the said William Biikheacl for his life, leniaindet bo the use of said trustees during his life, to pieseive contingent remainders, remaindet to the use of said Elizabeth Maty Hainess, his intended wife, foi the term of hei life, remainder to the use of all and every the children (if more than one) of the body of said William Birkhead on the body of said Elizabeth Maty Hainess his intended wife to be begotten, to be equally divided among them bhaie and shate alike, to take as tenants in common and not as joint tenants, and of the several and tespective heirs of the bodies of all and every such children lawfully issuing, and in ca&e one 01 more of such children should happen to die without issue of his, her, ot their body or bodies, then as to the shaie or shares of him, hei, 01 them so dying without issue, to the use of the survivoi.s 01 others of them, share and shaie alike, to take as tenants in common and not as joint tenants, and of the several and respective heir'bof then bodies lawfully issuing , and in case all such children but one should happen to die without issue, or if there should be but one such child, then to the use of such suivivingor only child, and of the heirs of his 01 het body lawfully issuing, and for default of such issue, then to the use of the said Elizabeth [112] Harness, the wife of said William Hainess, and of het heirs and assigns foi ever The marriage took place, and there were eight childien of the marriage, of whom Maty Elizabeth died in 1794, William m I80,i, and (leoige in 1805 These thiee died without issue and in infancy The other hve childien are now alive, and one of them is the said John Pottingei Birkhead (one of the lebsois of the plaintitt) The names of the others are not material The said John Pottmger Brrkhead, in the yeai 1824 (whilst his father and mother were living), disposed of the interest he then had in the pieniises, which at that time was (rrr consequence of the above death) supposed to be l-5th, and tbetefoie the shaie which he was then entitled to fonns no pait of the subject of the present actron In 1837 the said John Pottmger Bnkhead (in the lite-time of his father and mothei) became a bankrupt, and the usual bargain and bale and assignment of all his real and personal estate from the commissioners to the assigneeb, of whom Geoige Cbft, one of the lessors of the plaintitt, is the only suiuvoi, wete at that tune duly evecuted Thete has been no subsequent baigain and sale, noi any subsequent appointment of Mr Cbft 01 any one else as assignee The bankrupt has not obtained his certificate The said Wrlliam Harness and Elizabeth hrs wife (to whom the first two life estates weie limited by the above settlement) both died in the lifetime of the said William Bnkhead and Elizabeth Maiy his wife The said Elizabeth Hainess died in hei husband's lifetime intestate, leaving the said Elizabeth Mary Birkhead het only child and heness-at-lavv William Bnkhead the husband died in 1829...
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