Marshall v Grime
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1860 |
| Date | 01 January 1860 |
| Court | High Court of Chancery |
English Reports Citation: 54 E.R. 410
ROLLS COURT
S. C. 29 L. J. Ch. 592; 6 Jur. (N. S.) 390; 8 W. R. 385.
[375] marshall v. grime. March 6, 7, April 21, 1860. [S. C. 29 L. J. Ch. 592 ; 6 Jur. (N. S.) 390; 8 W. R. 385.] A testator devised real estates to his aon and his heirs, but without power of selling them, and he willed that they should, at his death, go to his lawful issue absolutely, and if his son should not have any lawful issue him surviving, then over. Held, that the son took an estate tail. The testator, by his will dated in 1849, after devising several freeholds to the devisees, " their heirs and assigns for ever," proceeded in the following terms :- " And lastly, I hereby give, devise and bequeath all the rest, residue and remainder of my real and personal estate and effects, whatsoever and wheresoever, unto my said son John Rowlandson Marshall, his heirs, executors and administrators, but my will is, that my son shall not have power to sell the estates and lands hereby devised to him. I will that the said estates arid land so given to my son shall, at his death, go to his lawful issue absolutely, and if my said son shall not have any lawful issue him surviving, then I will that all the estates and lands hereby devised to my son shall go and be absolutely held by my nephew Henry Harrison, the second son of my sister now living, his heirs and assigns for ever." The testator died in 1849, and in 1851 the Plaintiff, John Eowlandson Marshall, executed a disentailing deed. The Plaintiff, J. E. Marshall, afterwards contracted with the Defendant Grime for the sale to him of part of the real estates devised to him by the will. The Defendant raised an objection to the Plaintiff's title on the ground that, according to the true con-[376]-struction of the testator's will, the Plaintiff was not thereby made tenant in tail of the testator's residuary real estates. The Plaintiff and Defendant agreed to concur in the above statement of facts, for the purpose of obtaining the opinion of the Court on the following questions:- 1. Whether, according to the true construction of the will, the Plaintiff, on the death of the testator, became tenant in tail of the residuary real estate thereby devised ? 2. Or what was the estate and interest of the Plaintiff in such residuary real estate, according to the true construction of the said will ? 3. Out of what fund or by whom should the costs of this special case be paid ? Mr. E. Palmer and Mr...
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