Idle v Cook
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1705 |
| Date | 01 January 1705 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 298
Chancery Division
Referred to, Morgan v. Morgan, 1870, L. R. 10 Eq. 103; Olivant v. Wright, 1878, 9 Ch. D. 651.
[7Q] de teem. pasch.e, 1705. Case 14.-idle versus cook. [1705.] [Referred to, Morgan v. Morgan, 1870, L. E.' 10 Eq. 103; Olivant v. Wright, 1878, 9 Ch. D. 651.] Salk. 620 ; 2 Ld. Ray. 1144 ; 3 Danv. Abr. 186. Surrender of a copyhold to the use of baron and feme for their lives, et hseredum et assignatorum of the said baron and feme, and for default of such issue, to the right heirs of the surrenderor. This is an estate in fee, and not an intail in the baron and feme ; otherwise had it been the case of a will. (Vide Morgan v. Griffith, Cowp. . 234- Denn v. Shenton, Cowp. 410.) In ejectment, on a long special verdict, the case was but this: Zachariah Cliff was seised in fee of the lands in question, being copyhold lands, and surrendered the same ad opus et usum prcedi-ct' Zachdrice for his life ; and after his decease, to the use of Valentine Cliff his eldest son, and Alice his wife, pro et durante termino vitarum suarum, et hceredum et assignatorum prosdictorum Valentini et Alicice, et pro defectu talis exitus, to the use of the right heirs of Zachariah for ever. Not long after, Zachariah was admitted and died; and the question was, whether this estate limited to Valentine, and Alice his wife, was an estate-tail only, or a fee-simple 1 If a fee-simple, then judgment was to be given for the defendant: accordingly judgment was given for the defendant by three judges against Gould, J., the case having been thrice argued, and the court for some time divided. [71] Gould, J. I am of opinion, that the estate limited to Valentine and Alice is a fee-tail. The resolution in the case of Abraham v. Twigg (Moore 424; Cro. Eliz. 478). cited in Beresford's case, 7 Cro. 41 b, which seemed at first to be against me, was the only matter that stuck with me; but I shall shew wherein that differs from the present case ; I am sure I have the intention of the surrenderor on my side. It must be agreed, that the words [de corpore] are not precisely.necessary to the creation of an estate-tail; it is sufficient that there are other words tantamount; and I agree, that there is no difference, in point of construction, between limitations of estates out of freehold and copyhold lands. In this limitation here is the word [heirs] and it is further explained what heirs are meant (scil.) of Valentine and Alice ; and though the words be in the genitive case (scil.) hceredum prcedictorum Valentini et Alicice yet they import the same as if they had been limited in the ablative case, with the preposition de, (viz.) hceredum de prcedict' Valentino et Alicia; and then the last words ascertain what heirs, (scil.) such issue of Valentine and Alice. The resolution of Beresford's case is very strong for me ; and that limitation, upon comparison, has no more words in it than are in our case ; the words [such issue] restrain it to the heirs of their two bodies, and do not extend to the heirs of the survivor. Beck's case in Littleton's Reports, 159, 253, 285, 315, and also reported in Cro, Car. 363, 364, by the name of Boreton v. Nichols et al', is an authority in point for me; for the question there was, whether the limitation was an estate-tail, or a contingent feersimple 1 and it wa held an estate-tail; for if it had been a contingent fee, the remainder over had been void. [72] As to the case of Abraham v. Twigg, the limitation there is not like ours; because there it is to the use of Gabriel Dormer and his heirs males; not to the use of Gabriel Dormer and the heirs males of Gabriel Dormer, aforesaid, as it is in our case, (scil.) and of the...
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