Doe, Lessee of Fonnereau, against Fonnereau
| Jurisdiction | England & Wales |
| Judgment Date | 22 November 1780 |
| Date | 22 November 1780 |
| Court | Court of the King's Bench |
English Reports Citation: 99 E.R. 311
IN THE COURT OF KING'S BENCH
2DOTOL.4S8. DOE V. FONNBEEAU 311 doe, Lessee of Fonnereau, against fonnereau. Wednesday, 22d Nov. 1780. An estate to A. for life in a deed, and a limitation of the same estate to the heirs of the body of A. in a will, (though the estate by the deed was voluntary, and moved from the testator, and is recited in the will,) do not unite so as to give A. an estate-tail, but the heirs of his body take by purchase.-A devise of a real estate to B. after a good executory devise thereof to the heirs male of the body of A. from, and after the decease of A. and limited on default of such issue, is a good ezecutory devise; vesting, either in possession, on the death of A. without leaving issue-male, or as a remainder after an estate-tail, on his death leaving issue-male. Upon a special verdict, in an action of ejectment, which was tried before Lord Mansfield, at the sittings for Middlesex, after Easter term, 19 Geo. 3, the facts were : that Claude Fonnereau, being seised in fee, by indenture, bearing date the 1st of April, 1735, and made between him and his eldest son Thomas Fonnereau, in consideration of natural love and affection, did give and grant to the said Thomas Fonnereau, and his assigns, the estate in question, to hold the same to him, and his assigns, from Michaelmas then last past, for life, without impeachment of waste, at the rent of a pepper-corn, if demanded : that Thomas, the son, entered, and was seised in his demesne as of freehold, for life, the reversion in fee remaining in the father; and that the father, on the 27th of June, 1738, devised the said reversion in the words [following;-" Whereas I have settled my estate, called Christ-Church, at Ipswich, in Suffolk, (the lands in question,) upon my eldest son Thomas Fonnereau, for the term of his natural life; my will is, and I do hereby, from and after his decease, give and devise the same to the heirs male of his body begotten in lawful marriage, and, in default of such issue, to the use and behoof of my second, third, fourth, and fifth sons, severally, successively, and in remainder, one after another, as they every of them are in priority of birth, and seniority of age, and of the several heirs male begotten in lawful marriage, of the body and bodies of my said sons respectively issuing, the elder of my said sons, and the heirs male of his body, to be always preferred, and to take, before the younger of my said sons, [488] and the heirs male of their bodies; and, for want of such issue, to my right heirs:" that the testator, afterwards, on the 5th of April, 1740, died, seised of the said reversion, leaving the said Thomas Fonnereau his eldest son, Claudius Fonnereau, (the lessor of the plaintiff,) his second son, and three other sons; that, after the death of the testator, his eldest son Thomas, being seised of the premises as the law requires, covenanted to levy a fine, for the purpose of making a tenant to the prsecipe, which he afterwards did, and suffered a recovery, to the use of himself in fee: that afterwards, on the 6th of January, 1779, Thomas devised to the use of his nephew Martin Fonnereau, (the defendant,) for life, with divers remainders over: that Thomas, soon after making his will, died seised, without leaving, or ever having had, any lawful issue whatsoever, and without having ever been married; that the lessor of the plaintiff, in 1779, made an actual entry into the premises, for the purpose of avoiding the fine levied by his brother Thomas. The case was argued, in Trinity term, 19 Geo. 3 (a), by Rooke, for the plaintiff, and Wilson, for the defendant; and again, in Hilary term, 20 Geo. 3(6), by Hill, Serjeant, for the plaintiff, and Dunning for the defendant; and, in Easter term following (c), Lord Mansfield delivered the opinion of the Court, in favour of the defendant. A few days afterwards, however (d), his Lordship directed, that the judgment should be stopped, and the case argued again in the ensuing term. Accordingly, there was a third argument in Trinity term, 20 Geo. 3 (), by the Solicitor-General, for the plaintiff, and Grose, Serjeant, for the defendant; after which, the case stood over till this day, when judgment was given for the plaintiff. There were two general questions in the case; 1. Supposing the limitations over to the second, and other sons, to have been good in their creation, whether they were not barred and destroyed by the recovery 1 2. Whether those limitations were not void from the beginning 1 (a) Friday, 18 June, 1779. (6) Tuesday, 8 February, 1780. (c) Friday, 14 April, 1780. (d) Tuesday, 18 April, 1780. (e) Tuesday, 30 May, 1780. 312 DOE V, FONNEREATJ aDOUQI,.489. If Thomas, the son, took an estate-tail, it was clear that the limitations over were barred, and the title of the lessor of the plaintiff destroyed. But such an estate-tail could only have vested in Thomas; either, 1. By coupling the estate for life, [489] settled upon him by the deed set forth in the special verdict, with the limitations to his heirs-male in the will, so as to bring this within the rule in Shelley's case(f), or, 2. By construing him to have taken such estate-tail under the will. If Thomas took only an estate for life, then the recovery could not bar the limitations to the second and other sons, if they were good in their creation ; and, therefore, on this supposition, it waa necessary for the defendant to insist, that those limitations were executory devises, and void, as being limited on too remote a contingency. In consequence of these different views of the case, there were four different heads of argument insisted upon by the counsel for the plaintiff. 1. They contended, that the limitations to Thomas in the deed, and to his issue- male in the will, could not be coupled, so as to make the words of the latter words of descent, and to vest an estate-tail in him. 2. That an estate-tail to Thomas could not be raised from the words of the will. 3. That the limitation to the second son, was an immediate devise of the reversion after Thomas's life, by which an estate-tail in that reversion vested in the second son Claudius, (the lessor of the plaintiff,) immediately on the testator's death, with successive vested remainders over to the other younger sons. 4. Or, if it should be held that the successive devises to the younger sons were all future and executory [f 1], then, that they were not within the reason and principle upon which executory devises had been held void as being too remote. On these four heads the substance of the arguments for the plaintiff was as follows. 1. The rule in Shelley's case, only applies where the first and subsequent limitations are in the same instrument. The words are "When the ancestor, by any gift or conveyance, takes an estate of freehold, and, in the same gift or conveyance, an estate is limited, either mediately or immediately, to his heirs in fee, or in tail, that always, in such cases, ' the heirs' are words of limitation of the estate, and not words of purchase (a)." The Court now, [490] (when the feudal reasons for which it was introduced have ceased,) will not be inclined to extend the rule; as it tends, in most instances, rather to defeat than give effect to the real intention of the testator [f 2] ; and, though some authorities may be mentioned where it has been, perhaps carried farther in some respects than the words above cited import, yet, upon a review of all the case* on the subject, so far from there being any decision to warrant the application of it to the case of limitations in two different conveyances, it will be found that the contrary has been determined. In the first Institute (b), Lord Coke expresses himself thus: " If a man seised in fee, make a feoffment in fee, (and depart with his (/) C. B. T. 23 11. 1 Co, 93 b. 104 a. 106 b. [f 1] That the limitations to the heirs of Thomas, as well as those to the other sons, (not being created by the same instrument which created the estate for life to Thomas) were executory devises, and not remainders : see Fearn Cont. Eem. 448. (a) 1 Co. 104 a. [f 2] The rule has been applied to eases, where it obviously counteracts the intent of the testator, when the intent defeated is only a particular intent, and the application of the rule is necessary to give effect to the general intent. As where the estate is given to the first taker "for life only," but it appears to be the intent of the testator, that all the issue of the first taker should inherit the whole estate, before it should go over; and there remains no other mode of rendering that general intent available, but by giving an estate of inheritance to the first taker. See Doe v. Cooper, 1 East, 229, and Wood v. Baront ib. 259, and the cases there cited. Bub if it appear clearly, from the expressions of the will, that the testator designed the heirs to take as purchasers; as, if they are mentioned severally and successively, &c. in such case this rule of construction gives way, and the first taker has only a life estate, with remainder to the persons designated by the description of heirs; even though the technical phrase heirs of the body be used. Goodtitle v. Herring, 1 East, 264, and the cases there cited. (J) Co. Littl. 22 b. 2DOUOL.491. DOE V. FONNEREAU 313 whole estate,) and limit the use to his daughter, for life, and, after her decease, to the use of his son, in tail, and after, to the use of the right heirs of the feoffor; in this case, albeit, he departed with the whole fee-simple by the feoffment, and limited no use to himself, yet hath he a reversion, for whensoever the ancestor takes an estate for life, and after, a limitation is made to his right heirs, the right heirs shall not be purchasers; and here in this case, when the limitation is to his right heirs, and right heirs he cannot have during his life, (for non est hssres viventis) the law doth...
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