Doe, ex dimiss. Long, v Laming
| Jurisdiction | England & Wales |
| Judgment Date | 25 November 1760 |
| Date | 25 November 1760 |
| Court | Court of the King's Bench |
English Reports Citation: 97 E.R. 731
IN THE COURT OF KING'S BENCH
S. C. 1 Bl. 265.
See Cowp. 410. 2 Atk. 220. 2 Str. 729. 2 Freem. 186. 2 Bl. Rep. 695, 1002. Doug. 306. Brown. 206. Amb. 562. 4 Durn. 82. 1 Bos. 206. 4 Brown. 543. 5 East, 553. 6 Durn. 31. 7 Durn. 532. 1 Bosanq. 219. 1 East, 229. 3 East, 537.
Referred to, Goodtitle v. Herring, 1801, 1 East, 273. Distinguished, Doe d. Bagnall v. Harvey, 1825, 4 Barn. & C. 623; 7 Dowl. & R. 93. Applied, Doe d. Atkinson v. Featherstone, 1831, 1 Barn. & Ad. 950. Commented on, Jack v. Featherston, 1835, 9 Bli. N. S. 276; 3 Cl. & F. 76. Discussed, Montgomery v. Montgomery, 1845, 3 Jo. & Lat. 52; 8 Ir. Eq. R. 746.
doe, ex DiMisa. long, versus laming. Tuesday, 25th Nov. 1760. [S. C. 1 Bl. 265.] A devise to one, and her heirs, may in particular circumstances, make the heirs take by purchase. [See Cowp. 410. 2 Atk. 220. 2 Str. 729. 2 Freem. 186. 2 Bl. Rep. 695, 1002. Doug. 306. Brown. 206. Amb. 562. 4 Durn. 82. 1 Bos. 206. 4Brown.;543. 5 East, 553. 6 Durn. 31. 7 Durn. 532. 1 Bosanq. 219. 1 East, 229. 3 East/537.] [Referred to, Goodtitle v. Herring, 1801, 1 East, 273. Distinguished, Doe, d. Bagnall v. Harvey, 1825, 4 Barn. & C. 623 ; 7 Dowl. & R. 93. Applied, Doe d. Atkinson v. Featherstone, 1831, 1 Barn. & Ad. 950. Commented on, Jack v. Featherston, 1835, 9 Bli. N. S. 276 ; 3 Cl. & F. 76. Discussed, Montgomery v. Mmtgomery, 1845, 3 Jo. & Lat. 52; 8 Ir. Eq. R. 746.] This was a special case, which arose upon an ejectment brought for gavel-kind lands in Kent, tried before Lord Mansfield at Nisi Priua. The ejectment was brought by the heir at law of one Martin Long, for an undivided fourth part of one messuage, &c. in the parish of St. John the Baptist in the Isle of Thanet in Kent. Special case stated for the opinion of the Court- Martin Long, being seised in fee, &c. made his will, &c. and thereby devised thus -" I give and devise one equal undivided fourth part, &c. unto my nephew Martin Read, and to the heirs of his body lawfully to be begotten, as well females as males, and to their heirs and assigns for ever, to be divided equally, share and share alike, as tenants in common and not as joint-tenants. Also I give and devise one other equal undivided fourth part, &c. unto my niece in law Grace Read, widow of my late nephew Edward Read deceased ; and to the heirs of her (a) body lawfully begotten, as well males as females, and to their heirs and assigns for ever, to be divided equally share and share alike, as tenants in common [1101] and not as joint-tenants. (6) Also 1 give and devise one other equal undivided fourth part, &c. unto my niece Anne, now wife of William Cornish, and to the heirs of her body lawfully begotten or to be begotten, as well females as males, and to their heirs and assigns for ever, to be divided equally share and share, as tenants in common and not as joint-tenants. Also I give and devise one other equal undivided fourth part, &c. unto my niece Sarah (c) now wife of S. Hooper, and to the heirs females and males of her body law fully begotten or to be begotten, to be divided (as before,) and to their heirs and assigns for ever." There were likewise in this will, other devises of other estates; viz. " I give and devise unto my nephew J. Tickner his heirs and assigns for ever, all that, &c. &c." " I give and devise my farm, &c. unto my sister Catharine, wife of William Abbot, and to her assigns, for and during the term of her natural life: and from and after (a) This is a mistake; for in the will, as in the brief, the word was his and not her : and yet the reporter in page 1111, makes Lord Mansfield argue on a supposition that it was her, which must be a mistake of the reporter's ; for it cannot be supposed that Lord Mansfield would found any part of his argument on a mistaking of the words of the will; or if that could be supposed, yet the other Judges, and even in such a' case the counsel, would certainly have set him right. (b) The like limitations in a deed as in this case were decreed to create an estate tail, ifl the first taker, (5 MS. 628, notes ;) but there were not words of limitation superadded in that case to words of limitation, as there are in thia case. See also 3 Durn. 145. And qu. whether there must not necessarily have been some blunder in drawing the will, or in the clerk's making a fair copy of it, and the blunder not discovered 1 And qu. as to a devise of a term for years in words not very unlike to those in this case? 7 Durnf. 555. (c) Eq. Abr. Cas. 4. 3 Brown. 82. Amb. 499, 502. 4 Durn. 82, 300. Doug. 231. 2 BJ. Rep. 1002. Fearne, 107, 108. 7 32 DOE V. LAMING * BUBR. 1102. her decease, I give the same unto my nephew her son William Abbot and the heirs of hia body lawfully to be begotten, for ever: and for want of such issue, I give and devise the same to the right heira of me, for ever." " And aa concerning my messuages, &c. I give and devise the same to Elizabeth Long, her heirs and assigns for ever." " And as conceruing, &c. I give and devise the same to my sister Sarah Tailor and her assigns, during her natural life, provided she keep the same in repair : and from and after her decease, I give the same to my sister Elizabeth Long her heirs and assigns for ever." " Also I give and bequeath to my niece Sarah now wife of William Long, and to the heirs of her body, the sum of 1501. of like money to be divided between them equally." The testator lived two years after making this will: he died in May 1751. At the time of making the said will, the testator's said niece Anne Cornish, wife of Thomas Cornish, had two daughters (by her said husband) then living; viz. Elizabeth and Anne. Anne Cornish, the testator's niece, died after the time of making the will; but in the life-time of the testator: and her two daughters, Elizabeth and Anne, survived both their said mother and also the testator Martin Long. [1102] The whole premises are gavel-kind. The question submitted to the Court is-" Whether, by the death of Anne Cornish (the mother) in the life-time of the testator, the devise, as to her one fourth part, was void or lapsed : (d) or whether the said one-fourth part devised as above, or any and what part thereof on the testator's death, descended to the lessor of the plaintiff, as heir at law to the testator." Mr. Filmer, Junior, argued this case for the plaintiff. He endeavoured to maintain that either the whole of the one-fourth part devised to Anne Cornish was lapsed by her dying ia the testator's life-time ; or, at least, that some part of it was so ; and that what was lapsed would consequently descend to the lessor of the plaintiff, as heir at law to the testator. Anne Cornish, the testator's niece, would have taken, he said, if she had survived the testator, an estate in tail general; or, if not so, then she must have taken one third part of the fee simple, as tenant in common with her two daughters : if the former, the whole is lapsed; if the latter, one third only. Bat he conceived that she would have taken an estate in general tail, by purchase, under this devise. The word "heirs " (in the plural number,) is a word of legal limitation : and there is no instance, in case of a mere legal estate, where " heirs of the body " have been construed to be words of purchase. The case of Bagshaiv v. Spencer was a trust, The Court will keep to the legal technical interpretation. The case of Goodright v. Pulleyn et Al\ M, 11 G. 1, B. R. reported in 2 Ld. Raym. 1437, is material to this point. There was likewise a case before the council, on 18th March 1730, at which Ld. Raymond and Ld. Ch. J. Eyre were both present. It was between Morris, on the demise of William Andrews, and Isaac le Gay and John Wood: upon an appeal from Barbadoes. It was a devise " to Lucretia, for life ; then to the heirs of the (d) The 1st point was that the will should be construed as giving an estate tail to A. C.; and consequently by her death in the testator's life, the devise of this fourth part was lapsed; and the 2d point was that if the above construction should not be admitted, it must be on this ground that the words "heirs of her body lawfully begotten or to be begotten aa well females as males," must be construed in tha same sense as the word children; and then the ease would be the same with the common case, put Co. Lit. 9 a. and in other books of " a devise' to A. and his children (he having children...
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