Doe dem. Herbert Herbert against John Thomas and John Lewis
| Jurisdiction | England & Wales |
| Judgment Date | 30 April 1835 |
| Date | 30 April 1835 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 360
IN THE COURT OF KING'S BENCH.
[123] doe dem. herbert herbert againsi john thomas and john lewis. Thursday, April 30th, 1835. Tenant in fee simple devised land to his wife, her heirs and assigns, for ever, "with the intention that she may enjoy the same during her life, and by her will dispose of the same as she thinks proper." Held, that the wife took a fee; though, in a later part of the will, the devisor limited lands in fee by using the words " heirs and assigns for ever," without any additional words. Ejectment for messuages in Brecknockshire. On the trial before Gurney B. at the Brecknockshire Lent Assizes 1834, a verdict was found for the plaintiff, with leave reserved to move to enter a verdict for the defendants. In Easter term last John Evans obtained a rule accordingly. Several questions arose upon the argument, but the only point upon which the Court decided was the construction of the will of Herbert Herbert, deceased, who had died seised in fee of the premises in question. The will was as follows:-"I give and bequeath to my dear wife Margaret, her heirs and assigns for ever, the house iti which we now live and all the furniture therein, and all other the property of which I die possessed, with the intention that she may enjoy the same during her life, and by her will dispose of the same as she thinks proper : and whereas my father did by his last will give and bequeath to my sister Susanna Lewis the house next to mine" (not being part of the premises in dispute), "and in which she now lives, now, in case the said will should not be sufficient for the purpose of giving her the said house as aforesaid, I do hereby, as far as in me lies, give and bequeath to her the said Susanna, her heirs and assigns for ever, the said house in which she lives, relinquishing all right and title to the same which I may have." The defendants claimed under a conveyance in fee [124] made to them by the wife after H. Herbert's death ; and it was admitted, on the part of the lessor of the plaintiff, that the defendants were entitled to the verdict if the wife took a fee under the will in the property bequeathed to her. John Wilson and Cooper now shewed cause. The wife took an estate for life, with a testamentary power of appointment as to the remainder. The earlier words " to my wife, her heirs and assigns, for ever," would, of course, give a fee simple, were it not for the words...
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