Doe, on Demise of Isaac Winter, - Plaintiff in Error; Matthew Perratt and W. Burge, - Defendants in Error
| Jurisdiction | England & Wales |
| Judgment Date | 28 February 1843 |
| Date | 28 February 1843 |
| Court | House of Lords |
English Reports Citation: 8 E.R. 548
House of Lords
Mews' Dig. xiv. 1558. S.C. 10 Bing. 198; 3 Moo. and Scott, 586; 6 M. and Gr. 314; and, in Court below, 5 B. and C. 48. Commented on in In re Chapman; Ellick v. Cox, 1883, 49 L.T. 674. See also Doe d. Angell v. Angell, 1846, 9 Q.B. 328, 334; In re Frost, 1890, 43 Ch. D. 246.
Devise - Remainder - First Male Heir of the Branch of a Family - Vesting.
IX CLARK & FINNELLY, 606 WINTER V. PERRATT [1843] [606] DOE, on Demise of ISAAC WINTER,-Plaintiff in Error; MATTHEW PERRATT and W. BURGE,-Defendants in Error [June 27, 30, 1832; June 25, 1833 ; July 2, 1839 ; May 10, August 10, 1842 ; Feb. 28, 1843]. [Mews' Dig. xiv. 1558. S.C. 10 Bing. 198; 3 Moo. and Scott, 586; 6 M. and Gr. 314; and, in Court below, 5 B. and C. 48. Commented on in In re Chapman; Ellicfc v. Cox, 1883, 49 L.T. 674. See also Doe d. Angell v. Angell, 1846, 9 Q.B. 328, 334; In re Frost, 1890, 43 Ch. D. 246.] Devise-Remainder-First Male Heir of the Branch of a Family-Vesting. E. C. by his will, dated in 1786, gave his estate of T. to certain persons for life, and after their decease to his kinsman J. C., or his male heir; and if no male heir lawfully begotten by the said J. C., then the above lands to fall to the first male heir of the branch of his uncle R. C.'s family, yielding and paying to such of the daughters of the aforesaid R. C., which should be then living, the sum of £100 each, at the time of the taking possession of the aforesaid estates. The testator died in 1787; R. C. died six years before, having left five daughters only, all married; the eldest had several daughters but no son; each of the others had sons; all these persons were known to the testator. J. C. died in 1808 without having a son lawfully begotten. The eldest daughter of R. C. died in 1799, having no son, but leaving a daughter who had a son, born in 1795, both still living. The second died in November 1820, having had two sons, one born in 1763, who died in 1817; the second born in 1770, still living. The third died in 1813, leaving two sons, one born in 1771, who died in 1813 ; the other born in 1773, still living. The fourth died in 1804, leaving a son born in 1768, who died in 1819, having devised to his wife in fee. The fifth, still living, had a son born in 1772, who is still living. The life estate in the devised lands expired in July 1820.- held, 1st. That the remainder devised to the first male heir of the branch of R. C.'s family, was a contingent remainder in fee-simple. 2d. That such remainder, if once vested, could not become devested, so as to admit another in preference to him in whom it had vested. 3d. That said remainder did not vest in R. C.'s second daughter's son. Quaere, as between the titles of the grandson of R. C.'s eldest daughter, and the son of R. C.'s fourth daughter ? Lord Brougham was of opinion (supported by five of the Judges), 1st. That the words " first male heir," were not used by the testator to denote a person of whom an ancestor might be living, but meant an heir of a deceased ancestor, in the technical sense. 2d. That the said remainder first vested in interest, in 1804, on the death of R. C.'s fourth daughter, and vested in her son. Lord Cottenham (supported by six other Judges) was of opinion, 1st. That the words " first male heir," were used to denote a person of whom an ancestor might be living. 2d. That the said remainder did not first vest in interest in R. C.'s fourth daughter's son. (His Lordship did not say when or in whom it vested; two of these Judges said it vested in the first daughter's grandson, on that daughter's death in 1799; two others said it then vested in R. C.'s second daughter's son; and the remaining two said the will was in that respect void for uncertainty.) Emanuel Chilcott, being seised in fee of lands and tenements, called the Truck-well estate, made his will [607] the 16th of March 1786, and thereby gave and devised as follows : " I give unto John Chilcott, my kinsman, living in London, £100, to be paid in one year after my decease." " Also I give unto' Ann White, my sister-in-law, the sum of £20 and the income of Burge's cottage, and her living in it, if she thinks proper, during her natural life. Also I give unto Elinor White £100 and 548 WINTER V. PERRATT [1843] IX CLARK & FINNELLY, 608 half of Truckwell state, during her natural life. Also I give unto W. Burge, my servantman, £5. All the rest and residue of my goods, chattels, rights, credits, personal and testamentary estate, and also my lands, tenements, and hereditaments, I give, devise, and bequeath unto Elizabeth Chilcott, my dearly beloved wife, during her natural life, whom I make my whole and sole executrix ; and I do allow her the said Elizabeth Chilcott to give what she thinks proper of her said effects to her sisters, Elinor White and Ann White, during their natural lives; and after the above lives being expired, that is to say, Elizabeth Chilcott, Elinor White, and Ann White, all the lands, rights, profits, and hereditaments of Truckwell estate to come to John Chilcott, my kinsman, living in London, or his male heir, if any; free land not to be sold or mortgaged on any account whatsoever, but to remain in the Chilcotts' family for land of inheritance, with two cottages, garden, and orchard in the parish of Brompton Ralph, adjoining to the aforesaid Truckwell estate, called by the name of Middle Wetcombe, free land : And if no male heir lawfully begotten by the said John Chilcott, then the above lands to fall to the first male heir of the branch of my uncle Richard Chilcott's family, who lived at Hancrich Farm, yielding and paying unto such of the daughters of the aforesaid Richard Chilcott, which shall be then living, the sum of £100 each, at the time of the taking possession of the aforesaid estates." [608] The testator died in May 1787, seised of the said lands and tenements, without revoking or altering his said will, and without issue, leaving the said Elizabeth Chilcott, his widow, and Ann White and Elinor White, him surviving. Ann White died in the year 1791. Elizabeth Chilcott, by her will dated in April 1792, in pursuance of the power given her in her husband's will as aforesaid, devised the lands and tenements therein comprised, over which she had power of disposition, unto her surviving sister Elinor White for her life, and died in Dec. 1795. Elinor White thereupon became seised, under both wills, of the entirety of the said lands and tenements for her life, and died so seised in July 1820. John Chilcott, described in Emanuel Chilcott's will as " living in London," was his next cousin and heir at law: he died in 1808, without ever having any heir male by him begotten, leaving an only daughter, Sarah Chilcott, who in 1789 married one Thomas Webb, and died in 1810, leaving issue an only son, John Chilcott Webb, who thereupon became the heir at law of John Chilcott and also of the testator Emanuel Chilcott. By an indenture dated August 1814, John Chilcott Webb demised the Truckwell estate to one William Grey for 1000 years, declaring that a fine levied thereof by him and his wife should enure to the said W. Grey, his executors, etc. during the said term, and subject thereto, to the use of J. C. Webb and his heirs. J. C. Webb died intestate1 in April 1820, leaving John Staines Webb his only child and heir at law, who is now the heir at law of the testator Emanuel Chilcott. Richard Chilcott, the uncle of the testator, in his will mentioned as having lived at Hancrich Farm, died in 1780 without ever having had a son, but having had five daughters, whom he left surviving: [609] namely, Mary, born in 1739; Joan, in 1741; Sarah, in 1744; Betty, in 1746 ; and Agnes, in 1749. Mary, the eldest, married George Bishop, and died in 1799, leaving issue four daughters only; of whom the eldest, Betty Bishop, born in 1769, married John Derham Perratt, by whom she had issue a son, Matthew Perratt, the Defendant in Error, born in 1795. His mother is still living. Joan, the second, married Isaac Winter, and died in November 1820, having had issue two sons, of whom the elder, Thomas Chilcott Winter, born in 1763, died in 1817, a bachelor and intestate, leaving his only brother, the Plaintiff in Error, born in 1770, his heir at law. Sarah, the third, married Samuel Parsons, and died in 1813, leaving issue two sons, of whom the elder, James Parsons, born in 1771, died in 1813 without issue and intestate; and John Parsons, the second son, born in 1773, is still living. Betty, the fourth, married Benjamin Viney, and died in 1804, leaving issue an only son, Thomas Viney, born in 1768, who died in 1819, leaving issue one son, Thomas Viney (who is still living), and having by his will devised all his real estate to his wife, Catherine Viney, in fee. Agnes, the fifth daughter of the said Richard Chilcott, married John Greenslade, by whom she had issue a son, Thomas Greenslade, born in 1772, and who is still living, as is also his mother. 549 [610] PEDIGREE OF THE CHILCOTT FAMILY. Emanuel Chilcott. emanuel, the testator, died s.p. in 1787, and his devisee for life in July 1820. John Chilcott. john, of London, died in Dec. 1808, without a son. richard chilcott, of Hancrich, the uncle of the testator, died in 1780, without issue male, and leaving five daughters. ct o Sarah, married Thomas Webb, and died in April 1808. John Chilcott Webb, died in April 1820. mary, born in 1739, married George Bishop, in 1768, and died in 1799. I joan, born in 1740, married Isaac Winter, in 1762, and died in Nov. 1820. sarah, born in 1744, married Samuel Parsons, in 1769, and died in 1813. betty, born in 1746, married Benjamin Viney, in 1764, and died in 1804. agnes, born in 1749, married John Greenslade, in 1770, and is still living. John Staines Webb, heir at law of Emanuel Chilcott, the testator. I I Betty, Ann...
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