Plunket v Holmes
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1803 |
| Date | 01 January 1803 |
| Court | High Court |
English Reports Citation: 83 E.R. 15
COURTS OF KING'S BENCH, COMMON PLEAS AND EXCHEQUER.
[28] plunket versus holmes. Devise. 2 Danv. Ab. 519, p. 15. Eq. Ab. 188, p. 12. 1 Lev. 11. 1 Sid. 47. 1 Keb. 29, 119. The wife having two sons by divers husbands (which were dead) and being seised of the lands in question, in fee, devised them to Thomas her son for the term of 16 TERM. MICH. 13 CAR. 2, B. R. RATM. SIR T. 28. his natural life, and if he die without issue of his body living at the time of his death, then to Leonard another of her sons, and his heirs for ever; but if Thomas have issue living at the time of his death, then the fee shall remain to the right heirs of Thomas for ever; the woman died, Thomas entered and suffered a common recovery, 'and dies without issue, the recoveror made a lease to the defendant, Leonard entered upon him, and made a lease to the plaintiff; et si, &c. Allen for the plaintiff. The points which I shall raise here are, 1st, What estate Thomas and Leonard have by the will. 21y, What operation the recovery had upon the estate of Leonard. As to the first, There is not any estate tail to Thomas, but another estate, for the limitation to Leonard is not upon failure of issue of Thomas, but upon failure of issue living at his death. 2dly, The contingency is repeated in the second limitation, and this point hath been agreed in the argument of this case before; but now I shall consider whether Thomas hath an estate for life, or a fee determinate. And first, I hold he hath a fee determinate. 21y, Leonard takes by executory devise, and riot by way of contingent remainder. When a particular estate is limited, and the inheritance passes out of the donor, this is a contingent remainder, and in abeyance, Plow. 35 a. But if the fee be vested in any person, and to be vested in another upon a contingency; this is an executory devise; and here Thomas had a fee-simple immediately, because first he is heir at law to the devisor; and if there had not been any devise to Thomas, but if Thomas had died, Leonard there would have been his heir. Object. Here is an express devise to Thomas for life, and the remainder here shall be in abeyance, as in Archer's case. Answ. In Archer's case, Robert had not only an estate for life, but also a reversion in fee-simple expectant upon an estate-tail, and therefore the case is not well reported in 1 Co. 66 b. But the remainder there was of necessity contingent, because it is only a...
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...case, 1 Rep. 66 b. where, though Robert took an estate only for life by the will, yet by operation of law he had the fee also. Sir T. Raym. 28, Plunket v. Holmes. 1 Lev. 11. 1 Sid. 47, S. C. Lord Male's opinion has been also recognised in a subsequent case, where Sir M. A. devised to E. for......
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...remainder which the plaintiff had under the de\ise was destroyed Piutfuyv. liot/m^('2 \Vrns Saund 380, and notes), Plunket v. Holmes (Sir T. Raym. 28) Kuowles, in reply, contended that the execution of the deed might be impugned on the ground that the acknowledgment was not duly taken , tha......