Doe ex dim. Morris against Underdown
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1791 |
| Date | 01 January 1791 |
| Court | Court of the King's Bench |
English Reports Citation: 95 E.R. 454
King's Bench Division
Applied, Doe d. Wells v. Scott, 1814, 3 M. & S. 306. Referred to, Perceval v. Perceval, 1870, L. R. 9 Eq. 392; In re Mason [1901], 1 Ch. 634; [1903], A. C. 1.
454 APPENDIX ANDREWS, APP. vii. As to the second; it is merely guess work, and is making a will instead of construing one. Out of all the cases cited in the argument, only five relate to the point in question. Moore 422. Cro. Elia. 525, the word or construed arid, cited to show that words are construed out of their natural meaning to support the intent. But there the Court went in favour of the heir. It is an imperfect case and not of the greatest authority. Holcroft's ease, Moore 486. Graced v. Warren, Comb. 437, and in cases in K. Wm.'s time, which is a case very like the present but stronger of the two, for here the defendants claim under an heir at law, who is to be disinherited ; but there it was under an executor who is not so much favoured as an heir.ùAndrews v. Fulham, B. R. T. 11 & 12 Geo. 2, upon this same will. But we think that there is a great difference between the cases. [vii] That case was of the leasehold ; this of the freehold estate ; and many things were said at the Bar to distinguish the cases ; let. That the plaintiff, against whom judgment was given, was representative to the person who had assented to the devise over, and so was concluded : 2dly. That the same words in a will may have different constructions in regard to leashold and freehold estates, as in Papillion v. Voice "2. I cannot say whether this was the foundation of the opinion in B. R. But a case of a freehold was cited against the opinion of the Court, and they said the case before them was a leasehold, whereas the case cited was of .a freehold. Jones v. Westcomb, Eq. Ab. 245, M. 10 Ann. It concerned a personal estate, and is a very imperfect case, so does not stand in the way. Therefore we are of opinion that the devise in remainder to the wife and the two sisters never took effect, and that on the death of Catherine, one third part descended to Mary one of the co-heirs of the devisor, under whom the defendants claim. Therefore the verdict must be given for two thirds only. As it may reasonably be expected that I should inform the public upon what: authority I offer the preceding case, I think it proper to mention that for it (amongst several other manuscript cases of determinations about the same time, many of which I believe have not been published) I am indebted to a deceased relation who was a member of the Irish [viii] Bar, and attended Westminster-Hall, as a student, about the time when the preceding case was determined; but by whom they were taken, I am totally ignorant. The case of Roe v. Flood, cited in the preceding case is reported in Fortescue's Rep. 184. One question there was, whether the benefit of a lapsed devise was to go to the heir at law, or to the residuary devisee, which also occurred in Doe OA the demise of Morris v. Ucederdown, C. B. M. 15 Geo. 2, cited 2 Blackst. 737, 738, but not any where reported in print. I will therefore take this occasion of giving it to the public, on the same authority as the preceding case. Si quid novisti rectius istis candidue imperti, &c. 0-. W. V. *1 In 2 Stra. 1093, it is said that this case was ruled by Willes, Ch.J. and Parker.ùIn 1 Ves. 421, it is said that this opinion was that of Willes, C.J. and the rest of the Court...
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