Monypenny v Dering
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1850 |
| Date | 01 January 1850 |
| Court | Court of Common Pleas |
English Reports Citation: 137 E.R. 1103
IN THE COURT OF COMMON PLEAS
See S. C. in Chancery, 7 Hare, 568; 2 De G. M. & G. 145.
MONYPENNY V. DERING AND OTHERS (a)2. 1850. [See S. C. in Chancery, 7 Hare, 568; 2 De G. M. & G-. 145.] The testator devised lands to P. M. (his brother) for life, remainder to the use of the first son of the body of P. M. for life, remainder to the use of the first son of the (a)1 The Lord Chief Justice was absent, on account of indisposition. ()2 The plaintiff in the suit was Eobert Thomas Gybbon Gybbon Monypenny. The defendants were,-Eobert Bering, Thomas Gybbon Monypenny; Eobert Phillips Dearden Monypenny, an infant, by James Dearden, his guardian; James Isaac Monypenny; Phillips Monypenny; William Backhouse Monypenny; Charles Dawson; William David Cathcart Monypenny, and Thomas Phillips Blackwell Monypenny, Bichard James Laud Monypenny, James Eobert Blackwell Monypenny, and Phillips Howard Monypenny, infants, by John Cavell, their guardian; Susannah Monypenny; Peregrine Eoyds Dearden; John Corsley; and Elizabeth Charlotte, now the wife of Henry Doyle Sewell. 1104 MONYPENNY V. BERING 9C.B.794. body of such first son, and the heirs male of his body; and, in default of such issue, to the use of all and every other son and sons of the body of his said brother P. M., severally and successively, according to seniority of age, for the life interests and limitations as he had before directed respecting the first son and his issue; and, in default of issue of the body of his said brother P. M., or in case of his not leaving any at his decease, to the use of his brother T. M. for life, remainder to T. M., the eldest son of T. M. for life, remainder to the first son of the body of T. M. the son, and the heirs male of his body; and, in default of issue of the body of T. M. the son, to the use of all and every other the son and sons of the body of the testator's brother T. M., for the like estates and interests, severally and successively, according to seniority of age; and, in failure of all such issue of the body of his said brother T. M., to the use of him, his heirs and assigns, for ever: and the testator declared, that, if his said brothers, or either of them, or either of their issue, should become entitled to the estate, or any part thereof, of E. Joddrell, the estate theretofore devised for the benefit of his said brothers and their issue should become and be and remain to the use of the next person entitled thereto, as they would have done if the person so succeeding to the Joddrell estate were actually dead.-By a codicil, the testator devised the same lands to his wife for life, and, after her decease, to the same uses as were declared by his will.-The testator's brother P. M., after the death of the widow, viz., in Michaelmas Term, 1827, suffered a recovery of the devised estates, to the use of the said P. M. in fee.-By a settlement on the marriage of E. J. M. (nephew of P. M.) with Susannah M., dated the 10th of June, 1835, P. M. charged the estate with a jointure of 3001. per annum to her in the event of her surviving them, P. M. and E. J. M.-In January, 1841, P. M. died without ever having had any issue, and having by his will devised the estates in question to his nephew B. J. M. for life, with remainder to his eldest son E. P. D. M. for life, remainder to his first and other sons successively in tail male, with divers remainders over.-In September, 1842, E. J. M. died, leaving his widow Susannah M. and E. P. D. M., his only son (then an infant), him surviving:-Held,-first, that the testator's brother P. M. took an estate for life in remainder after the life estate of the widow:-Secondly, that T. G-. M. took an estate for life in remainder after the life-estate of P. M., contingent on P. M. not leaving any issue at his decease, and determinable on his (T. G. M.'s) becoming entitled to the Joddrell estates ; and also a remainder in tail general after the estate-tail of E. T. G-. G-. M. (son of T. Gr. M.) : -Thirdly, that E. T. G. Gr. M. took a contingent remainder in tail male after the determination of the life-estate of his father T. G. M.:-Fourthly, that P. M. acquired no estate or interest under the recovery:-Fifthly, that Susannah M. took no estate or interest under the deed of the 10th of June, 1835 :-Sixthly, that the co-heirs in gavelkind took a remainder in fee after the several estates above mentioned. The following case was sent by his Honor Vice-Chancellor Wigram for the opinion of this Court:- James Monypenny, late of Maytham Hall, in the [794] parish of Eolvenden, in the county of Kent, was, at the time of the making of his last will and testament hereinafter mentioned, and thenceforth up to and at the time of his death, seised in fee-simple of, or otherwise well entitled to, divers hereditaments and premises in the said county of Kent, respectively called Maytham Hall Estate, and Lower Maytham Hall Estate, all which said hereditaments and premises were of gavelkind tenure. The said James Monypenny, being so seised or entitled as aforesaid, and being of sound and disposing mind, memory, and understanding, on the llth of February, 1804, duly made and published his last will [795] and testament in writing, dated the llth day of February, 1804, and duly executed and attested as by law was then required: for passing real estates by devise, and thereby he devised the said Maytham Hall Estates as follows:-" I give and devise my said house called Maytham Hall, with all and every the appurtenances, to the uses, intents, and purposes following, that is to say, to the use, intent, and purpose that my brother Phillips Monypenny shall receive and take the rents, issues, and profits thereof for and during the term of his natural life, without impeachment of waste; and, from and immediately after his decease, to the use of the first son of the body of the said Phillips Monypenny for and during the term of his natural life; and, from and immediately after his decease, 9C.B.796. MONYPENNY V. DERING 1105 to the use of the first son of the body of such first son, and the heirs male of his body; and, in default of such issue, to the use of all and every other son and sons of the body of my said brother Phillips Monypenny, severally and successively, according to seniority of age, for the like interests and limitations as I have before directed respecting the first son and his issue: and, in default of issue of the body of my said brother Phillips Monypenny, or in case of his not leaving any at his decease, to the use of my brother Thomas Monypenny for and during the term of his natural life, without impeachment of waste; and, from and immediately after his decease, to the use of Thomas Monypenny, the eldest son of my said brother Thomas Monypenny, for and during the term of his natural life, without impeachment of waste; and, from and immediately after his decease, to the use of the first son of the body of the said Thomas Monypenny, son of my said brother Thomas Monypenny, and the heirs male of his...
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