Olive and Tong
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1658 |
| Date | 01 January 1658 |
| Court | Court of the King's Bench |
English Reports Citation: 82 E.R. 802
UPPER BENCH COURT AT WESTMINSTER
olive and tong. Mich. 1653. Bane. sup. Trin. 1651. Eot. 1426. Special verdict in a trespass and ejectment. Vpon a special verdict in an action of trespass and ejectment, the case in effect was this, one whose sirname was Mills seised of gavelkind-lands in Kent in fee, by his last will and testament devised these lands to Elizabeth his daughter in tayl, with a proviso in the will, that if his daughter Elizabeth did mary one of his own sirname that then she should have the lands in fee-simple. Elizabeth maried one whose siruame was Mill, but commonly called and known by the name Mills also. The question was, whether she had maried one of such a sirname, whereby according to the proviso in the will she had a fee-simple in the lands devised unto her, or whether his sirname should be accompted a distinct name from the testators, so that Elizabeth by the will could only have an estate in tayl in the lands devised unto her. It was argued first, that the name Mill and Mills shall not be said to be one and the same name, no more than if she had maried one of a clear differing sirname in sound, yet commonly called also Mills, could she have been said to have maried one of his own sirname, and the proviso here is not a particular pointing out of the person whom bis daughter should mary, but a general limitation [390] directing her to mary one of his own sirname, and thia ought to have been punctually followed, because the name was used to induce the affection of the devisor to enlarge the estate given by him. If he had devised his land to bis daughter E. if she shall mary a Protestant or an earl, she must mary one that is really so, and not one called or only reputed so. And as to-the objection, that this construction would make contrariety in the will, which is not STYLE, S9L MICH. 1653 803 to be admitted ; this will not be, if the will be taken compositive as it is penned, or together, and not abstractive and taken to pieces, and if it should not be intended that she should mary one who in truth was of his name there would be a contradiction in the will; and here is an emphasis in the word own, which must be meant his real name, and not of a reputative name. Roll Chief lustice, If a juror be retorned by the name of Mills, and is sworn by the name of Mill, shall this be a mistryal, quasi noo t and the words sound alike as Baxter and Backster. At an-other day the case was put again by Hales, and argued for the plaintiff, and he made divers points in the case, but I could not well hear him : but the only point insisted on was the point formerly spoken to, and the sum of his argument was, that we are in this case upon the construction of a will, which...
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