Doe, on the demise of John Winder and Mary, his Wife, against Robert Lawes
| Jurisdiction | England & Wales |
| Judgment Date | 08 June 1837 |
| Date | 08 June 1837 |
| Court | Court of the King's Bench |
English Reports Citation: 112 E.R. 445
IN THE COURT OF KING'S BENCH
S. C. 2 N. & P. 195; W. W. & D. 484; 7 L. J. Q. B. 97.
[195] doe, ON the demise OF john winder and mary, his Wife, against egbert lawes. Thursday, June 8th, 1837. 1. Copyholder in fee devised to his wife S. freehold estates named in the will, together with personalty (making her sole executrix), to be freely possessed and enjoyed by her during her life, remainder over to children ; and, if they died before S., to be disposed of by S.'s will. By a codicil he bequeathed certain money to S. By a second codicil he devised and bequeathed to S. "all my copyhold in the hamlet of H.," "and likewise all monies lent out upon mortgage, bonds, or notes of hand." Held (the will and codicils being prior to Stat. 7 W. 4 and 1 Viet. c. 26), that S. took only a life estate in the copyhold. 2. J., the devisor's heir at law, never was admitted, nor surrendered to the use of his will. Before stat. 55 G. 3, c. 192, he devised all his copyhold to S. in fee, and he died in S.'s lifetime, after that statute passed. S. was admitted, after the death of the first devisor, and after the making of J.'s will, but before his death, to hold according to the first will. Held, that J.'s devise passed the copyhold to S., even assuming J. not to have been virtually admitted ; but that, also, the admittance of S., the tenant for life, operated as an admittance of J., the reversioner. 3. S. was never admitted after J.'s death. She devised, after stat. 55 G. 3, c. 192, to her two customary heirs and H. in fee; and the three, after her death, were admitted each to an individual third, on producing the will. Held, that her life estate had merged in the fee devised to her by J., and that the effect of her admittance was therefore spent, and her devise inoperative for want of admittance. 4. But that the two customary heirs had each a perfect legal estate in his third. 5. That J.'s heir at law had a good title to support ejectment for the remaining third. [S. C. 2 N. & P. 195; W. W. & D. 484; 7 L. J. Q. B. 97.] On the trial of this ejectment before Lord Denman C.J., at the Surrey Spring Assizes, 1835, a verdict was found for the plaintiff, subject to the opinion of this Court on the following case. The action was brought for one undivided third part of copyhold premises, situate at Kingston Bottom, and held of the manor of Ham, in Surrey. The declaration contained two demises by the lessors of the plaintiff, one on the 24th of November 1825, the other on the 31st of December 1834. Mary Winder (the lessor of the plaintiff) is one of three sisters of Philip Cawston the Elder, hereinafter mentioned, and one of the aunts and co-heiresses of Philip Cawston the Younger, hereinafter mentioned, and claims as such co-heiress by descent. The descents, as regulated by the customs of the manor, are shewn by the following extract:- The roll of customs made the 1st day of May, in [196] the 25th year of the reign of King Edward the Fourth, &c. "That, if any tenant die seised, that which must descend of right ought to descend by the custom of this manor to the younger son and his heirs; and, if he have no son, to the youngest (laughter and her heirs; and, if she die without issue, then it to remain to the next of the kin ; and, if there can be none found of the kin then to make claim to the lands, that then the lord shall by our customs seize it into his hands as escheat for lack of heirs general." On 30th of November 1804, the Earl of Dysart, the lord of the manor, granted to Philip Cawston the Elder two pieces of the waste of the manor, to hold to him and his heirs at the will of the lord, according to the custom of the manor, at the yearly rent of 10s. Philip Cawston was thereupon admitted, and, on the 5th of December following, surrendered to the use of his will. He had made his will before the above grant, namely, on 29th of September 1791. He afterwards made two codicils. Extracts from the will and codicils follow. "I, Philip Cawston, Senior, of," &c., " do make and ordain this my last will and testament." " I give, devise, and dispose (b) As to scandalous matter in affidavits, see Hex v. Payn, 6 A. & E. 392. 446 DOB V. LA WES 7 AD. & B. 197. of the same (a) in the following manner and form. I give and bequeath to Sarah, my dearly beloved wife, my freehold in Hertfordshire, and my estate in Petty France, Westminster, all my right and title to the Robin Hood premises, in Kingston Bottom, in the parish of Ham (county of Surrey), and all my household furniture, together with my clothes, and book debts, and my plate, atid stock in trade, whom I likewise constitute, [197] make, and ordain the sole executrix of this my last will and testament, by her freely to be possessed and enjoyed during her life, and, at her demise, my children to have equal shares. If my loving children die before their mother, Sarah Cawston, she is at her free will to give and bequeath the aforesaid property to whom she please." Dated 29th September 1791. " N.B.-I likewise give, devise, and bequeath to Sarah, my dearly beloved wife, all monies in the hands of Biddulph, Cocks, and Eidge, bankers, Charing Cross, and all money that may at any time be put into the Bank of England or lodged elsewhere." Dated October 28tb, 1799. " I likewise give, devise, and bequeath to Sarah, my dearly beloved wife, all my copyhold in the hamlet of Ham, in the parish of Kingston, and in the county of Surrey, and likewise all monies lent out upon mortgage, bonds, or notes of hand." Dated 20th September 1805. Philip Cawston had only two children, Philip and Sarah. The latter died at the age of six years, before her father. In 1811 the testator died, leaving his widow and his son Philip surviving; and his will and codicil were proved by hia widow and executrix, 14th June 1811. On 15th June 1812, at a court held for the manor, the homage presented the death of Philip Cawston ; and, at the same court, Sarah Cawston, by Philip her son, came and brought into Court the probate of Philip Cawston's will, and was admitted to hold the same according to the will of her late husband, at the will of the lord according to the custom, &e. She never surrendered the premises to the use of her will. Philip Cawston, the son, was never admitted as tenant, in [198] reversion or otherwise, nor were the premises surrendered to the use of his will, which is dated 18th March 1811, and of which the following is an extract: "I do constitute and appoint my beloved mother, Sarah Cawaton, whole atid sole executrix to this my will; and, further, I do hereby bequeath and give unto my said mother and executrix all and singular my whole and sole property I may die possessed of, or having right or title to, in money, goods, clothes, leasehold, copyhold, or freehold, bank stock, annuities, mortgages, bonds, notes, or any hereditary property I may either die possessed of or have any legal claim or expectation to the same." Dated 18th March 1811. Philip Cawston, the son, died in 1819, unmarried. Amongst the rules of customs pertaining to the manor is the following (viz.). " The seventh part of our custom is that, if any tenant which holdeth land of our Sovereign Lord the King do sue it out of the said court without...
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