Doe d. Smith and Another v Fleming

doe d. smith and another v. flem[no. Exch. of Pleas. 1835.-Devise of lands to the testator's daughter for life, remainder to her sons and daughters successively in tail; remainder to the testator's son for life, and his sons and daughters in tail : " and for default of such issue, to the younger branches of the family of B. W. and their hoirs, to be equally divided amongst them, as tenants in common : and iti default of such issue, to the elder branches of the family of B. W." (in the same terms). At the time of the making of the will, and of the testator's death, there were living two daughters of B. W., four daughters of one of those daughters, an only son of B. W.'s eldest son, and an only son of his third son. At the expiration of the estates tail limited to the testator's grandchildren, there were living many descendants of one of B. W.'s daughters, and of his third son. - Held, that the devise to the branches of B. W.'s family was void for uncertainty. [S. C. 1 Gale, 278; 5 L. J. Ex. 74.] This was an action of ejectment, brought on the several demises of Charlotte Smith and Barbara Watkins, to recover certain valuable estates situate in the county of Dorset. The cause was tried at the last Dorsetshire Assizes, when a verdict was taken for the plaintiff, subject to the opinion of the Court upon the following case; with liberty to either party to turn it into a special verdict. George Browne, by his will, bearing date 6th of September, 1775, duly attested 27'2 DOE V. FLEMING 2 0. M. 4 R. 639. to pass real property, devised all his estate, including the. premises which are the subject of this ejectment, (charged with n certain annuity) to his daughter Susanna Browne for life, without impeachment of waste, with remainder to trustees to preserve contingent remainders, remainder to the first and every other son of the said Susanna in tail, remainder to the daughters of the said Susanna in tail, remainder over to the testator's son, Francis John Browne for life, without impeachment of waste, remainder to trustees to preserve contingent remainders, with remainder to the first and every other son of his said son F. J. Browne in tail, and remainder to his daughters in tail; and the will then proceeds in the following words: "and for and in default of such issue, [ give and devise the said manors, messuages, farms, &c. charged and chargeable as aforesaid, unto the [639] younger branches of the family of Brown Willis, of Whaddon flail in the county of Bucks, esq., lawfully begotten, and to their heirs for ever, to be equally divided between them, share and share alike, and to take as tenants in common: and in default of such issue, f give and devise tho said manors, (fee. charged arid chargeable as aforesaid, unto the elder branches of the family of the said Brown Willis, lawfully begotten, and to their heirs for ever, equally to be divided between them, share and share alike, and to take as tenants in common." The testator made five codicils to his will, but neither of them iu any way affected the above devise. He died in .January, 1777 ; his daughter Susanna Browne died without issue in 1783; his son F. J. Browne died without issue in March, 1833. Brown Willis had several children, both sons and daughters, and died in 1761. The only descendants of Brown Willis living at the date of the testator's will, were two daughters, namely, Mary Hervey, born in 171 4, and Alice Eyre, born in 1715; and four daughters of Mary Hervey, namely, Mary Adams, liorn in 1750; Elizabeth Hervey, born in 1750 ; Charlotte Smith, one of the lessors of the plaintiff', born 1752; and Barbara Watkins, the other lessor of the plaintiff, horn 1754: also John, who took the name of Fleming, born in 1749, being the only child of Thomas, the eldest son of Brown Willis ; and Thomas Willis, horn I 737, being the only child of Henry, the third son of Brown Willis. At the time of the death of the testator, in January, 1777, the same persons were living, and in addition, .lane Caroline, the daughter of Thomas, the son of Henry, the third son of Brown Willis, born in 1770. At the time of the death of the said F. ,1. Browne, all the above-mentioned persons were dead, except the two lessors of the plaintiff. The said John Fleming left no issue. The said Thomas, the son of Henrv, third son of Brown Wrillis, left issue John Willis Fleming, and five daughters, viz. the raid Jane [640J Caroline (afterwards married to Thomas Meyrick); Charlotte Caroline, born 1780; Matilda, born 1783; Harriet, born 1785; (now tho wife of Henry Metcalfe Wan lie); and Julia, born 1786, (late wife of Edward Orlebar Smith). The said John Willis Fleming is now living, and hath issue Houria, born 1814; John Brown Willis, born 1815; Christo-phina Buchanan, born 1818; '1 homas James Willis, the defendant, born 1819; Harriet Elizabeth, born 1821 ; Charlotte Jane, born 1821 ; and William Henry, born 1828. The said Jane Caroline Meyrick died 1805, leaving issue Jane, now the wife of St. John Charlton, born 1803 ; and the said Jane Charlton hath issue, Catherine, Louisa, Jane, St. John, and Lucy. Charlotte Smith, one of the lessors of the plaintiff, hath issue Charlotte, born 1781 ; Jane Maria, born 1785 ; Eliza Diana, born 1786 ; Edward Orlebar, born 1788; and Penelope Marshall, born 179." ; Charles Hei'vey, born 1793, and Boteler Chernocke, born 1796. The said Ann Penelope Marshall tath issue,! Charlotte Hervey. The said Charles Hervey, the son of the said Charlotte Smith, the lessor of the plaintiff, hath issue Charles Hervey, Frances Maria Dale, Charlotte, Julia, Elizabeth, Emma, Jemima, Barbara, and Villiers S. Chernocke. And the said Boteler Chernocke, the other son of the said Charlotte Smith, the lessor of the plaintiff, hath issue Boteler Chernocke, Charlotte Hervey, and Sarah Whitby. All the above-named descendants of Thomas, the sou of Henry, the third son of Brown Willis, and of Charlotte Smith, the lessor of the plaintiff, were living at the decease of Francis John Browne. The defendant is the second son of the said John Willis Fleming, and is also devisee in fee of the premises in question under the will of the said P. J. Browne, who was the heir at law of the said testator George Browne. The question for the opinion of the Court is, whether the lessors of the plaintiff are entitled to any and what portion of the premises in question, under the will of the said George Browne. If the Court [641J shall be of opinion that the lessors of the 1C. M. & R. 642. DOE T.FLEMING 273 plaintiff are not entitled to any part of them, the verdict is to be entered for the defendant: on the other hand, if the Court shall be of opinion that the lessors of the plaintiff are entitled to the whole, then the verdict is to stand ; if to any part, then the verdict to be entered for such part. The caae was argued in Trinity term by Hodgson, for the lessors of the plaintiff. The question is, whether any and what...