Doe on the Demise of William Angell against Benedict John Angell Angell
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1846 |
| Date | 01 January 1846 |
| Court | Court of the Queen's Bench |
English Reports Citation: 115 E.R. 1299
QUEEN'S BENCH
S. C. 15 L. J. Q. B. 193; 10 Jur. 705. Referred to, Baines v. Lumley, 1868, 16 W. r. 675.
9Q. B.328 DOE V. ANGBLL 1299 [328] doe on the demise of william angela against benedict john angell ANGELL. [Thursday, February 12th, 1846 (a)1.] Although the general rule is, that, to take by purchase under a devise to the male heirs of W., the taker must be both a male and very heir, yet such rule may be controuled where the rest of the devise shews that the devisor intends to give the preference to a male descendant of W., bracing hia descent entirely through males, over a descendant;, male or female, who should be heir general of W. but not trace a descent entirely through males : and the descendant, so apparently preferred, will take to the exclusion of the heira general of W. and of the devisor. As where, to the words " male heirs of W.," was added " if any such there be," and the rest of the devise shewed that the devisor knew that the heir general of W., who traced through a female, was a male, and yet a remainder was limited over to him upon failure of male heirs of W.; and the devisor added that the males were to take place first, as long as there were any, through every descent; and also added, to the words of purchase "male heirs of W., if any such there be," the words of limitation " and their male heirs for ever." J. seised in fee, leased for sixty-one years, for a term expiring in 1837, within five years after the passing of stat. 3 & 4 W. 4, c. 27 (24th July 1833). From J.'s death, which happened more than twenty years before the passing of the Act, B. received the rent reserved on the lease, down to its expiration ; and he then entered into possession : and afterwards W. within five years after the passing of the Act, brought ejectment against B., claiming to be entitled, as J.'s devisee, immediately on J.'s death. Held that, under seel. 9, the action would have been barred by B.'s receipt of the rent; but that it was preserved by sect. 15 for five years after the passing of the Act. [S. C. 15 L. J. Q. B. 193 ; 10 Jur. 705. Referred to, Bairns v, Lumley, 1868, 16 W. R. 675.] Ejectment for land in Surrey. On the trial, before Tindal C.J., at the Surrey Summer Assizes, 1843, it appeared that John Angell had died seised in fee of the land in 1784. The property was then under lease from the devisor to one Weston for a term of sixty-one years, which expired at Michaelmas 1837. The lessor of the plaintiff claimed under the will of the said John Angell, and commenced this action of ejectment in the year 1837, immediately after the expiration of the lease, and within five years after the passing of stat. 3 & 4 W. 4, c. 34 (b). The material part of the will was as follows. "In the name of God, Amen. September the 21st 1744. I, John Angell, of," &c. " Item : I give to the male heirs, if any such there be, of William Angell, the first [329] purchaser at Crowhurst, and father of my great grandfather, John Angell Esquire, and their male heirs for ever, all ray lands and estates, both real and personal, in Surrey, Kent and Sussex; nevertheless, subject and liable to such conditions as shall be hereafter mentioned, and shall not be otherwise disposed of and given. And, if there be no male heira or descendants of the same William, then I give those estates, aa specified, to the male heirs of William, or the first Aiigell, of Northamptonshire, in order as they shall be found or made apparent. And, if there be none of those in being, or that shall be apparent, and plainly and legally make themselves out to be Angells, and so related and descended, I then give all my estates whatsoever, both real and personal, to William (a)2 Browne Esquire, grandson to Mrs. Prances, the wife of Benedick Browne Esquire, who was an Angell, and to his male heirs for ever, excepting the issue of his aunt Katherine, who flung herself away in marriage; notwithstanding, under such conditions, and with such restrictions and engagements, and liable to such settlements and enfeoffments, as I shall here, or at any time or any way hereafter, make them subject to. And I desire notice may be taken that, in all these givings, my meaning is that the estates shall never be divided, but always be in one hand, and the males to take place first, so long as there are any, through every descent. Whosoever is in possession of them, if they be not Angells, shall alter their names to Angell, and always write and call themselves by that name, without any alias or a)1 The publication of this report has been unavoidably postponed. fi) Royal assent, 24th July, 1833. (a)a See post, p, 336, note (d). 1300 DOR V. ANGELL 9 Q. B. 330. addition of any other name; and they shall always bear the [330] Angells'arms, with all their quarterings, and no other. And, if it shall so fall out that the heirs of the Brownes should cease and fail, then ray will is that the male heirs of my great aunt Marriott (sic), shall successively take place, the males first, and be entitled to the aforesaid estates. And, on failure of the Maryotts (sic), they shall descend to the male heirs of Doctor Lucy, Bishop of St. David's, if any he had, by Martha his wife, my great aunt, second daughter to my great grandmother; and, in default of the Lucys, then to the male heirs of my great aunt Hocknall; and afterwards to my right heirs, whosoever they shall be, in the male line. And my will is that, if any Browne, or any other person, to whom these estates should come, offer to pawn, or sell, or mortgage any part of them, on manifestation (sic), proof thereof, the next in succession, shall immediately be entitled to and take possession of the whole; and the same shall be if they do not forthwith alter their names as required, or if they should in anywise contest in law or offer to oppose this my will, especially in regard to the copyhold estate in Lambeth, or neglect or be deficient in the performance of what I desire in it." "John Angell (L.S.), September 26th, 1775. Signed and sealed," &c. (Attestation.) The lessor of the plaintiff claimed as the heir male of William Angell, the first purchaser of Crowhurst, and offered evidence by which he traced his descent, entirely through males, from Thomas, the ninth son (sixth of those who survived their father) of John Angell, called the Caterer, who was the eldest son of William, the first purchaser of Crowhurst, according to the following pedigree. [332] The defendant was, as appears by this pedigree, the heir general of the devisor, and also of William Angell, the first purchaser of Crowhurst, tracing his descent through a female, Frances Browne, the daughter of William Angell, third son of John the Caterer. Upon the devisor's death, in 1784, the father of the defendant had entered into possession of the estates, and changed his name to Angell, and had received the rent of the land in question, reserved by the lease, until his death in 1786, from which time the rent was received by the present defendant until the expiration of the lease in 1837, and he thenceforth continued in possession of the property till the commencement of the action. It was contended, on behalf of the defendant, that, supposing the pedigree of the lessor of the plaintiff to be established, he must still fail, as, first, under the words of the will, it was necessary that a person claiming as heir male should be heir general to William, the first purchaser, as well as male; and, secondly, the remedy was barred by stat. 3 & 4 W. 4, c. 27, s. 9. The defendant also denied that the lessor of the plaintiff had proved his descent. Leave was reserved to move to enter a nonsuit on the points of law; and the case was left to the jury on the facts. Verdict for plaintiff. In Michaelmas term, 1843, Thesiger, obtained a rule nisi for a nonsuit, or for a new trial on the ground that the verdict was against the evidence. Shee Serjfc., Petersdorff and Bovill shewed cause (a). First, as to the effect of the devise. The will contains a [333] clear special designation of an heir male, other than the heir general: he must be a male descendant claiming through a succession of male heirs. The person so designated was John Angell, the father of the lessor of the plaintiff. The ease on the other side rests on the doctrine in Co. Lit. 24 b., where the diversity between a descent and a purchase is illustrated as follows. ["When a man giveth lands to a man and the heirs females of his body, and the man to whom the gift is made] "dieth, having issue a son and a daughter," the daughter shall inherit; for the will of the donor (the statute working with it) (a) The argument on the points of law, reported in the text, was heard in Trinity and Michaelmas terms (June 8th and November 14th and 18th), 1844, by Lord Denman GJ., Patteson, Williams, and Coleridge Js. In Michaelmas term (November 17th), 1845, before Lord Denman C.J., Patteson and Williams Js., the case was argued as to the facts, when Shee Serjt., Petersdorff and Bovill shewed cause against the rule; and the Court (stopping Sir F. Thesiger, Attorney General, Channell Serjt, and Peacock, contra) said, that there must be a new trial on payment of costs. Sir F. Thesiger, Attorney General, then prayed for the judgment of the Court on the points of law; and the case stood over to Hilary vacation (February 12th), 1846; when judgment was delivered as after stated, p. 350. john angkll, the Caterer, eldest son. liar. 23d Dec. 1616, Bnr. 28lh Oct. 16? 0. [331J william angell, first purchaser of Crowhurst. Buried 16th October, 1629. Five other sons, and eight daughters, as to whom no question arose. 0 to s william angbll, 3d son = Elizabeth Gosson. Bap. 3d May 1623. Bnr. 8th Dec. 1674. justinian angell, 7th son = Elizabeth Scaldwell. Bap. 5th Nov. 1633. Bur. 6th Oct. 1680. Another son and a daughter, both dead, without issue at time of will...
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...may be used in different senses in the same statute: Whitley v. Stumbles , [1930] A.C. 544 and even in the same section Doe v. Angell (1846), 9 Q.B. 328, 115 E.R. 1299." [21] The principle of uniformity has also been described by Pierre-André Côté in The Interpretation of Legislation in Can......