Doe, on the demise of Thomas Thorley, against Thomas Thorley, the Elder, and Booth
| Jurisdiction | England & Wales |
| Judgment Date | 27 January 1809 |
| Date | 27 January 1809 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 842
IN THE COURT OF KING'S BENCH.
Referred to, Ex parte Williams, 1819, 1 J. & W. 93; Humble v. Bowman, 1877, 47 L. J. Ch. 64.
842 DOE V. THORLEY 10 EAST, 438. 438] doe, on the demise or thomas thokley, against thomas thorley, the elder, AND booth. Friday, Jan. 27th, 1809. One devises all his freehold estate to his wife during her natural life, "and also at her disposal afterwards to leave it to whom she pleases :" Held that this only gave her a power to leave it by will; and therefore that a disposition of it by feoffraent in her lifetime was void. [Referred to, Exparte Williams, 1819, 1 J. & W. 93; Humble v. Bowman, 1877, 47 L. J. Ch. 64.] In ejectment for a messuage and seven acres of land in the parish of Dilhorn in Staffordshire, the lessor of the plaintiff claimed as grandson and heir at law of John Thorley, who died about 21 years ago, having first made his will, dated the 18th of November 1786, .whereby he devised to his wife Mary Thorley "all-his personal estate, and likewise all his freehold estate, during her natural life, and also at her disposal afterwards to leave it to whomsoever she pleased;" and made her sole executrix. The defendants claimed under a feoffment from the said Mary Thorley, who is since dead, made on the 28th of May 1787, after the death of her husband; whereby, in consideration of 201., she conveyed to her second son Thomas Thorley, the defendant, a house built by him upon some of the land comprehended in her husband's will, and afterwards made her will, dated the llth of July 1789, in these words: "I leave to my daughter Mary Thorley all my freehold and personal estate, goods, and chattels, and all that I have, for her natural life; and at her death, I leave to my son Thomas Thorley the house and ground which I am now possessed of. for the care and management of my daughter Mary Thorley : and in case my Son Thomas should die before my daughter Mary, then his eldest son John Thorley to take the care and management of the same. I leave to my son John and to my grandson Thomas Thorley Is. to be paid by my son Thomas Thorley. Likewise I desire my son Thomas Thorley to pay all my debts and funeral expenees at my death; and I appoint [439] E. Willock and J. Dunn my executors." Mary Thorley the mother and her daughter Mary are both dead. The house mentioned in the will of Mary Thorley was part of the premises contained in the will of her husband. And it was contended at the trial before Lawrence J. at Stafford, that the defendant was not entitled to the house conveyed by the feoffment, inasmuch as Mary Thorley had no power to dispose of the lands left by her husband in any way but by her will, and not by any instrument to operate in her lifetime: and the learned Judge was of that opinion; thinking that the word " leave " pointed at a testamentary disposition. And as to the other house mentioned in Mary Thorley's will, it was contended that her will was not to be taken as an execution of the power, as it did not refer to the power: but the learned Judge thought otherwise; and directed the jury to find their verdict for the plaintiff as to the premises...
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