Purefoy v Rogers and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 1181
COURT OF KING'S BENCH
Referred to, Hopkins v. Hopkins, 1738, 1 Atk. 589; 1 Ves. sen. 268. Applied, Abbiss v. Barney, 1880, 17 Ch. D. 217. Referred to, Lemon v. Mark [1899], 1 Ir. R. 443; In re Asforth [1905], 1 Ch. 544.
[380] 62. purefoy versus rogers & others. Pasch. 21 Car. II. Regis, Kot. 428. [Referred to, Hopldns v. Hopkins, 1738, 1 Atk. 589; 1 Ves. sen. 268. Applied, Abbiss v. Barney, 1880, 17 Ch. D. 217. Referred to, Lemon v. Mark [1899], 1 Ir. R. 443; In re Asforth [1905], 1 Ch. 544.] S. C. 2 Lev. 39, 3 Keb. 11. A. feme-covert tenant for life, remainder to her son, if she should have one ; he in the reversion in fee, before the birth of a son, bargains and sells the land and levies a fine thereof to the husband and wife; the particular estate of the wife is merged in the reversion, and the contingent remainder destroyed. [But see stat. 7 & 8 Viet. c. 76, post, 387, note ().] Ejections fir ma on a demise made by Sampson Shelton Broughton of 6 messuages, 6 curtilages and 6 gardens, with the appurtenances, in the parish of St. Olave's Hart-Street in London. On not guilty pleaded, a special verdict was found at Nisi Prius in London to this effect; namely, that one Sampson Shelton was seised of the tenements in question in his demesne as of fee, and being so seised, on the 25th of October in the year of our Lord 1648, by his last will in writing devised the said tenements in this manner : "I do give unto my loving wife all my personal estate in leases, goods, plate, household stuff, and all my moveables whatsoever, and my inheritances of lands and nouses I give her, being my loving wife, for her life, which I make executrix of this my last will. And if it shall please God to bless her with a son, if she cause it to be called by my Christian name and sirname, namely, Sampson Shelton, then I give my inheritances of my lands and houses unto him after his mother's life ; and if he die before he come to tbe age of twenty and one years, then I give my inheritances of lands after my wife's life to my heirs for ever." And it was further found, that afterwards the devisor died seised without issue of his body, leaving Isabel hia relict, who was his wife named in the will, and one John Shelton, brother and heir of the said devisor ; and that the said Isabel afterwards, to wit, on the first of October, in the year of our Lord 1649, took one Richard Broughton to her second husband ; and afterwards, to wit, on the 21st of October 1649 aforesaid, the said John Shelton, 1182 PUREFOY V. ROGERS AND OTHERS a WM8. SASND. 381. being the brother arid heir of the said devisor by the [381] deed indented and enrolled in Chancery, for the consideration of money, bargained and sold the said tenements in queston to the said Richard Broughton and Isabel then his wife, to have to them and their heirs and assigns to their own proper use ; and that, on the morrow of St. Martin in Michaelmas terra in 1649 aforesaid, a fine was levied of the said tenements by the said John Shelton to the said Richard Broughton and Isabel, to the same uses as were contained in the said indenture of bargain and sale. And the jury further found, that afterwards the said Isabel had issue, by the said Richard Broughton, the said Sampson Shelton Broughton the lessor of the plaintiff, their first son, who was born on the 8th January 1649 * aforesaid, and that the said Isabel on the 15th day of the said month of January, caused him to be christened by the name of Sampson Shelton, and that be always afterwards was called by the Christian name of Sampson Shelton Broughton. And it was further found, that the said Richard Broughton and Isabel his wife afterwards, to wit, in July 1657, by indenture enrolled in Chancery, in consideration of money bargained and sold the said tenements to one William Westnn in fee, and in Michaelmas term then next following levied a fine of the said tenements to the said Weston to the use of him and his heirs ; under which Weston the defendants claim by several tnesne conveyances ; and afterwards Broughton and his wife died. And then the jury found the entry of the lessor of the plaintiff, and the lease to the plaintiff, and his entry, and the ouster by the defendants ; but whether the defendants were guilty or not, they prayed the judgment of the Court ** And on this special verdict two points were moved ; first, whether the conveyance, namely, the bargain and sale and fine of the said John Shelton the heir of the devisor to Broughton and his wife in fee, before the birth of the said Sampson Shelton Broughton the lessor of the plaintiff, had so destroyed the contingency that the estate should never vest in the said Sampson Shelton Broughton the plaintiff's lessor 1 Secondly, admitting that the contingency was not destroyed, then whether the will of the devisor was well observed in baptizing the lessor of the plaintiff by the Christian name of Sampson Shelton, so that the estate should vest in him according to the will or not? And Saunders for the plaintiff argued as to the first point, that by the conveyance of John Shelton to Broughton and his wife, before the birth of the lessor of the plaintiff, the contingent remainder was not destroyed. And first he submitted, that John Shelton the heir of the devisor had no reversion or estate in him, but it was in abeyance, because by the will an estate for life was given to the wife, and the remainder in fee to her son on the said contingency ; but if such son should die within the age of 21 years, then the tenements were [382] devised to the right heirs of the devisor, so that there was a fee simple devised on a contingency : wherefore, before it could be known whether the contingency would happen or not, the reversion was in abeyance, and not in the heir, and then his conveyance did not give any estate to Broughton and his wife, but they were only tenants for life of the wife as they were before. But Hale Chief Justice interrupted * him, and said it was clear that the reversion was in the heir of the devisor by descent, and was not in abeyance.(l) * This date is evidently wrong, for it appears by this and the other reports of the case, that the conveyance was made to R. B. and Isabel before the son was born ; and indeed that fact is necessary to the argument, (a) * 1 P. Will. 513, Garter v. Barnardistm. (1) This opinion of Lord Hale is agreeable to what had been before determined in a case, where the testator devised land " to his eldest son Thomas for life, and if he died without issue living at the time of his death, to Leonard, another son and his heirs, but if Thomas had issue living at his death, then the fee should remain to the right heirs of Thomas for ever;" it was adjudged that Thomas took only an estate for life, with a contingent remainder to Leonard in fee; and it was said by Wyndham and Twysden Justices, and agreed to by the other Judges, that the fee descended to Thomas as heir until the contingency happened, and ivas not in abeyance; that in (a) [However, the date does not appear to be wrong. For according to the old style, the 21st of October 1649, was before the 8th of January 1649, (i.e. 1649-50).] 2 WMS. SAUND. SSJ. TRIN. 23 CAR. II. REGIS 1183 Wherefore Saunders passed over and said that notwithstanding this he conceived that the contingent remainder was not destroyed ; and he took it for a ground, that relation to Leonard, Thomas took only an estate for life, but in the mean time by operation of law, he had the fee in such sort that it should not merge the estate for life, but there should be an hiatus to let in the contingency when it happened; and it was compared to Archer's 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 life, and in case E. should have issue male, then to such male and his heirs for ever, and after the death of the said E. in case he should leave no issue male, then to T. S. in fee: after the testator's death E., before he had any issue male, suffered a common recovery of the lands to himself in fee : it was held, that the remainder to T. S. was contingent, and destroyed by the recovery; and then the question was, whether the remainder in fee to T. S. was in abeyance, or did descend to the testator's heir at law 1 Sir Joseph Jehyll, then Master of the Rolls, held that the fee was in abeyance ; but on appeal to Lord Chancellor Parker, he was of opinion that it was not in abeyance, but descended to the testator's heir at law ; for wherever a remainder is devised in contingency, the reversion in fee descends to the heir at law in the mean time, and whatever estate is not disposed of by the testator descends to the heir, and cited this case of Purefoy v. Rogers, and the before-mentioned case of Plunket \. Holmes as in point: and therefore he held that the heir of the testator, having the reversion in fee descended on him, had a right of entry commencing upon the forfeiture which the tenant for life had incurred by Buffering the recovery. 1 P. Will. 506, Carter v. Bantardiston. It seems, however, that in common law conveyances it was holden, that the remainder in fee of an estate depending upoti a contingency was in abeyance : as where a feoffment was made for life, remainder to the right heirs of T. S. who was then alive, the fee-simple was supposed to be in abeyance until T. S. died. Co. Litt. 342 b. This was founded on an ancient principle of law, that every remainder must pass out of the grantor at the time of the livery. But in conveyances which have their operation from the Statute of Uses, it was always a rule that the fee remains in the grantor and his heirs until the contingency happens. Garth. 262, 263, Davis v. Speed, per Holt C.J. In...
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