Oates against Jackson
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1796 |
| Date | 01 January 1796 |
| Court | High Court |
English Reports Citation: 87 E.R. 1343
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS, EXCHEQUER.
Referred to, Doe d. Phipps v. Lord Mulgrave, 1793, 5 T. R. 324. Distinguished, Jeffery v. Honywood, 1819, 4 Madd. 403. Followed, Bridge v. Yates, 1842, 12 Sim 649. Referred to, Stokes v. Heron, 1845, 12 Cl. & Fin. 184; Kenworthy v. Ward, 1853, 11 Hare, 203. Discussed, In re Moyle's Estate, 1878, 1 L. R. Ir. 164.
7 MOD. 440. MICHAELMAS TERM, 15 GEO. 2. IN B. R. 1343 case 345. gates against jackson. [Referred to, Doe d. Phipps v. Lord Mulgrave, 1793, 5 T. R. 324. Distinguished, Jeffery v. Hanywood, 1819, 4 Madd. 403. Followed, Bridge v. Yates, 1842, 12 Sim. 649. Keferred to, Stokes v. Heron, 1845, 12 Cl. & Fin. 184; Kenworthy v. Ward, 1853, 11 Hare, 203. Discussed, In re Moyle's Estate, 1878, 1 L. R. Ir. 164.] On a devise " to A. for life, and after her death to B. and to the children of her body begotten or to be begotten by C. her husband, and to their heirs for ever ;" if one child be born at the time of the testator's decease, this creates a jointenancy between B. and her children.-S. C. 2 Stra. 1172. This is an action of trespass and ejectment, in which the plaintiff declared, that Elizabeth Hattersley, on the first of October, in the thirteenth year of George the Secoud, demised sixty acres, &c. to the plaintiff, to hold to him and his assigns for seven years, &c. by force whereof he entered, and was possessed until the defendant entered and ejected him. To this the defendant pleaded the general issue ; and at the last assizes at York a case was made for the opinion of the Court. The case stated, that Ralph Clay was seised in fee of five closes of meadow, and other the premises in the declaration mentioned, and hy his will, dated the eighth of January 1693, devised the premises in the words following : " As for touching and concerning the five closes of meadow called Woofspark, I give, devise, and bequeath them to Anuabell my loving wife for and during the term of her natural life, and from and after her decease then I give and bequeath the said closes, lands, and premises to Isabella Addingham, my daughter, and to the children of her body, begotten or to be begotten by William Addingham, and to their heirs for ever." In April 1694 the testator died seised of the premises, without making any alteration in his will: on his death Annabell his wife entered, and continued in possession until her death, which happened the fifteenth of August 1698. Isabella, at the time of making the will, had, by the said William Addingham her husband, a daughter named Elizabeth, and after the making the said will had several other children by the said William Addingham, viz. a daughter Isabel, born soon after the testator's death, who died without issue ; and several others, all of whom died without issue, except Elizabeth (the daughter of Isabella Hattersley, the daughter born at the time of making the will) who died in 1711 without issue. Annabella married Thomas Hattersley, who died the ninth of March 1729, leaving issue a daughter, Elizabeth Hattersley, the lessor of the plaintiff. The testatrix's daughter entered into possession of the premises after the death of her mother, to whom they were devised for life. Soon [440] after the husband died, and she married Matthew Jackson, by whom she had issue Matthew Jackson the defendant, her heir at law. Isabella married, survived all her children by her first husband, and died the eleventh of July 1739 in possession of the premises ; and on her death Matthew Jackson, her son, entered, against whom this ejectment is brought by this Elizabeth Hattersley. Matthew Jackson the defendant's title is as heir at law to his mother Isabella. Elizabeth Hattersley, who is lessor of the plaintiff, derives her title as grand-daughter to Isabella Addingham, that is to say, daughter of Annabella Hattersley, who was the only child of the said Isabella, by William Addingham her husband, that had issue. The point reserved for the opinion of this Court is, what estate in the premises passes by the will to Isabella the testatrix's daughter, and to her children 1 Dennison for the plaintiff. There is but one way of construction that can serve the defendant's purpose; and that is, that Isabella took an estate of inheritance in fee-simple, for without such estate the defendant can have no title ; on the other hand, if Isabella by the will took an estate in special tail, then the right to the premises is in her grand-daughter Elizabeth Hattersley, the lessor of the plaintiff, as heir in special tail; or if the fee was in the children of Isabella, the lessor of the plaintiff, even in that case, has a good title. First, I shall consider whether this limitation in the will " to Isabella, and the children of her body begotten or to be begotten by William Addingham " does not 1344 MICHAELMAS TERM, 15 GEO. 2. IN B. R. 7 MOD 411 create an estate tail in Isabella, because this seems to be the most natural construction of this will. It must be observed, that at the time of making the will Isabella had one child living, named Elizabeth, and all the other children of Isabella were born after the death of the testator, and on this accident it hath been thought by some that this case is similar to Wild's case (a). But notwithstanding Isabella had a child born when the will was made, yet this case differs very greatly from Wild's case. As to that case, I own the principal case there hath been always allowed to be law, though some other matters in it have been often doubted by some. I will state the principal case there, and compare the present case with it. In that case, lauds were given to A, for life, remainder to B. and the heirs of his body, the remainder to Rowland Wild and his wife, and after their decease to their children ; Rowland and his wife had then living a son and a daughter; and the Court were of opinion, that Rowland and his wife could have no estate tail by construction; because, they say, had it been in a con veyance, it would have been only an estate for life ; and as his intention did not appear to have it take effect contrary to the rule of the law, therefore they were of opinion that Rowland and his wife had no estate for life, remainder over to their ehil-[441]-dren then born. This case of Wild is taken notice of by my Lord Hale in 1 Vent. 231, and he gives this account of it: he says, the reason why it was held there to be an estate for life in Wild and his wife was, first, because having limited a remainder in tail to B. by express words, that is to say, " to B. and the heirs of his body," if he had meant the same estate in the second remainder, it is likely he would have used the same words : secondly, it was not "after their decease to the children of their bodies ;" for if so, there would have been an eye of an estate tail, that is, it would have looked like an estate tail; now, in our case, the devise is " to the children of her body begotten : " thirdly, the principal reason was, because there were children in being at the time of the devise. I observe, in the first place, that this case of Wild is a great while ago, and...
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