Marshall against Hopkins
| Jurisdiction | England & Wales |
| Judgment Date | 21 April 1812 |
| Date | 21 April 1812 |
| Court | Court of the King's Bench |
English Reports Citation: 104 E.R. 861
IN THE COURT OF KING'S BENCH
marshall against hopkins. Tuesday, April 21st, 1812. A testator being seised by the same title of a messuage of 19 acres of land, including Floodgate Meadow, in the parish of Mavesyn Eidware, which parish consists of three townships, Mavesyn Eidware, Blythbury, and Hill Eidware; and having other property in Hill Eidware, and nowhere else; and the messuage in Blythbury, with two of the 19 acres there, being in the occupation of T. W., and the rest of the 19 acres being partly in the occupation of other tenants, and partly in his own ; devised "all his messuage, with all lands, hereditaments, and appurtenances thereto belonging, situate in " Blythbury, in the parish of M. E., now in the occupation of T. W., except Floodgate Meadow:" Held that the devise was not confined to lands in Blythbury then occupied by T. W., but extended to all the lands in Blythbury, held under the same title with the messuage; and that the words "now in the occupation of T. W." were to be transposed and applied to the messuage then occupied by T. W. according to the fact; which transposition would render the whole consistent: whereas without it, the exception of the Floodgate Meadow was nugatory, as that never had been in the occupation of T. W. And it was no objection to this construction that a residuary clause, giving all other the testator's real estate in Mavesyn Eidware would have nothing to operate upon; the Floodgate Meadow and the property in the township of Hill Eidware, being specifically devised in the same clause. The Court will not suffer questions to be agitated by agreement of the parties in the form of an action for money had and received, in a case where such action does not lie by law. This was an action of assumpsit upon the common money counts, together with a count for interest, to which the defendant pleaded the general issue, and the Statute 862 MARSHALL V. HOPKINS 15 EAST, 310. of Limitations. At the trial, before Lawrence, J., at Stafford, a verdict was found for the plaintiff for 1301. 15s. subject to the opinion of this Court upon the following case. On the 10th of May 1799, Thomas Bromley, by his will duly executed and attested, gave and devised to J. Brittain and J. Marshall, (trustees,) their heirs and assigns, " all that my messuage, dwelling-house, or tenement, with all lands, hereditaments, and appurtenances thereto belonging, situate and being in Blythbury, in the parish of Mavesyn Eidware, in the county of Stafford, now in the occupation of Thomas Willett, (except one meadow, called Floodgate [310] Meadow, containing by estimation two acres or thereabouts, be the same more or less;") in trust, " by and out of the rents and profits of the said messuage, &c. and premises, so devised as aforesaid, to pay unto my niece Lucy Brown, during her life, one annuity of 41. &c.; and subject to the said annuity, and all necessary charges and expenses for repairs of buildings, upon further trust, to pay the residue of the rents and profits of the messuage, lands, hereditaments and premises hereinbefore devised as aforesaid, to my nephew Thomas Hopkins, during his natural life; and from and after his decease, upon further trust to convey and assure the messuage, &c. and premises so devised as aforesaid unto such person or persons, use or uses, as the said Thomas Hopkins shall, by his last will, in writing, duly signed and attested, limit or appoint the same: and in default of such limitation or appointment, to convey the said premises, &c. to the use of the right heirs, of the said Thomas Hopkins for ever." The testator then gave and devised to the same trustees, their executors, &c. "All that my messuage, dwelling-house or tenement, with the malt-house, lands, and hereditaments thereto belonging, now in the holding or occupation of J. Burchall, and all other my real estate in Mavesyn Eidware in the said county of Stafford, and also all that parcel of land situate in Blythbury aforesaid, called the Floodgate Meadow, now in the occupation of the said J. Burchall; to hold the said messuage, &c. lands and premises last mentioned, with their appurtenances, for a term of 500 years, upon...
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...Knott v. Lawton (4 Bing. N. C. 455, 461, 462), Davenport v. Coltman (12 Sim. 588), Hotham v. Button (15 Ves. 319), Marshall v. Hopkins (15 East, 309). The bequest to the Plaintiff is in effect, therefore, a bequest of so much of the testator's property, real and personal, as will produce 50......
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