Richard Paramour against Raphael Yardley and George Smart
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1816 |
| Date | 01 January 1816 |
| Court | Court of the King's Bench |
English Reports Citation: 75 E.R. 794
IN THE KING'S BENCH
A brief Report of a Judgment, and of the Causes thereof, given in the King's Bench, in Hillary Term, in the 21st year of the Reign of Queen Elizabeth, upon a special Verdict found in a Bill of Trespass brought by richard paramour against raphael yardley and george smart, for breaking his House and Close, called the Manor-House and Park of Drayton-Basset, at Dray ton-Basset, in the County of Stafford. And the Record appears among the Records of Michaelmas Term, 19 & 20 Eliz. Rot. 194. Lessee for years devises his term to his son, and further says, that his will is, that his wife shall have the occupation and profits of the lease during the minority of his son, to the intent that with the profits she may educate his children, and see his last will performed, and he makes her his executrix, and dies ; afterwards she proves the will, and sells the term to a creditor of her husband's before all the debts are paid, having other goods in her hands sufficient to pay the debts and funeral expences : she educates the issues after her husband's death until her own death : the son comes to his full age, and enters into the premisses, and his entry adjudged lawful. S. C. Crompt. J. C. 64 a. Vin. Abr. tit. Devise L. pi. 11. And see S. P. Mich. 15 & 16 Eliz. Dy. 328. pi. 11. The trespass was assigned to be done the 19th day of December, in the 19th year (e) S. P. ante 102, 103. (f) Cowel's Inst. 235, 5. Shep. Pract. Couns. 104. (a) Shep. Pract. Couns. 104. Vide Dy. 169. pi. 22. 2PLOWD1N.H40. PARAMOUR V. YARDLEY, &C. IN B. R. 795 of the reign of Queen Elizabeth, with continuance until the 15th day of May next following. And the defendants pleaded not guilty. And the jury found that one William Robinson was possessed of the places, in which the trespass was supposed to be done, by force of a lease for 77 years, which commenced at the Feast of St. Michael the Archangel, in the year of our Lord 1560. And by his testament in writing, made the 15th day of September, in the 4th year of the reign of Queen Elizabeth, he gave all his leases to Thomas Robinson, his eldest son, to have and to hold to the said Thomas during all the term which he had to come therein, if the said Thomas should so long live; and if he should die before he had issue of his body, then he devised all the said leases to * John Robinson, his youngest son, and to his assigns, during all the years then to come, if he should so long live, and have issue of his body. And he limited remainders over. And further, he said that it was his will and intent that Grace, his wife, should have the occupation and profits of all his lands and leases until the said Thomas should come to his full age of 21 years; and if the said Thomas should die before he came to such age, then until the said John Robinson should come to the age of 21 years, to the intent that she, with the profits of his lands and leases, might educate his issues, and see his last will performed in all points. And he devised further to Dorothy, his daughter, £600, to be paid at the day of her marriage, and divers other sums he devised to divers others. And he made the said Grace, his wife, his sole executrix, and died possessed of the said lease, the reversion of the tenements belonging to the Queen and to her heirs. [640] And they found further that the said Grace, having taken upon her the burden of the testament, entered into the said house and park, and was thereof possessed. And she being so possessed, the 12th. day of May, in the 6th year of the reign of the present Queen, by her deed granted to one Wilgfort Tanfield, her sister, all the said term, and all her interest, right, and title in the premisses, to have and to hold to her during all the years in the lease then to come. And they found that the said Grace, at the time of the said grant, had goods and chatties of the said William Robinson in her hands sufficient to pay all the debts and funeral expences of the said William Robinson, besides the said lease. But they found that a debt of £100, due by the said William Robinson, was payable and not paid at the time of the grant made to the said Wilgfort. And further, they found that the said Grace had educated and maintained the issues of her said husband all the time after the death of the said testator, and during her widowhood; and that afterwards the said Grace took to husband Simon Harcourt, and died. And afterwards the said Thomas Robinson entered into the said house and park, and was thereof possessed. And being so possessed, he, the 3d day of March, in the 17th year of the reign of the present Queen (then being of the age of 23 years), granted the said house and park, and all his interest and term of years in them, to Richard Paramour, the plaintiff, by virtue whereof he entered, and was possessed until the defendants, as servants to the said Thomas Robinson, and by his command, entered and did the trespass. And upon this matter the jurors prayed the advice of the Court, and if the Court should adjudge that the defendants were guilty, then they assessed damages to the plaintiff for the trespass at £20, and for his costs 20s. and if otherwise, then they said that the defendants were not guilty. And whether jadgment should be given for the plaintiff, or not, was debated in the King's Bench last Trinity term by Brograve, on the part of the plaintiff, and by Beaumond, the elder, on the part of the defendants. And now this present Hillary terra, in the 21st year of the reign of Queen Elizabeth, it was argued by an apprentice of the Middle Temple, on the part of the plaintiff, and by Tanfield, on the part of the defendants. 1 point. For the defendants.-And in order to overthrow the plaintiff's title, and to maintain that the term was never executed in Thomas Robinson as a legacy, it was objected that the limitation or gift to Grace, the wife, during the minority of Thomas Robinson, the infant, was void, because in the premisses of the will the testator had given to Thomas all his leases, to have and to hold to him during the whole term which he had to come, by which words the whole estate and term passed to Thomas, * 1 Rol. R. 321, this devise to John is said by Coke to be a possibility upon a possibility, and yet good. 796 HILLARY TERM. 21 ELIZABETH. IN B, R. aPLOWDBN, B. so that the subsequent words, by which he gave to Grace the occupation and profits of all his leases during the minority of Thomas, were repugnant to the firat words, whereby the lease was devised to Thomas; for if Thomas should have the lease, therein he should have the occupation and profits presently, and then the devise thereof to the wife was contrariant and repugnant, for which contrariety the latter devise shall be void, and then the wife shall have nothing by force of the devise, but only as executrix, in which case her occupation as executrix cannot be any execution of the legacy to Thomas; from whence it follows, that the grant of the term by the executrix to Wilgfort shall bind Thomas, and consequently the title of the plaintiff, who claims under Thomas, is not good.* Against which it was said on behalf of the plaintiff, that (a) words in wills ought to be so favourably expounded that the intent of the testator appearing in the will may be performed in every point, and not a jot be confounded. To which end it is the office of Judges to marshal the words of wills, and the more so if it be considered that wills are for the most part made in the party's last moments, when he has not time to apply to or advise with counsel in the law, and that testators themselves in general are unacquainted with the law, and know not how to put their words in their proper order, for which reason their ignorance and simplicity demands a favourable interpretation of their words. Then to apply this doctrine to our own case, it appears to be the intent of the testator that his wife should have the occupation and profits of the premisses during the minority of Thomas, his son, and that afterwards Thomas should have the lease. And in order to make this intent take effect, it is the office of the Court to take that part first which comes last, and that last which comes first in the will; as if the testator had said that his wife should have the occupation and profits of the land in lease during the minority of Thomas, and that Thomas at his full age should have the lease. And the words being so placed will answer the intent of the testator, and agree with the law. And this is nothing more than is frequently done by the common law in deeds, and such other acts, for when divers things are appointed at one same instant, and the one cannot take effect without the other, the common law will adjudge that to precede, and that to follow, which properly ought to precede and follow, in order to make the intent of the parties take effect, (b) As if a disseizor makes a lease for years, and afterwards he and the disseizee release by one deed to the tenant for years, there the law will adjudge the release of the disseizor first to take effect, and afterwards the release of the disseizee to take effect, for there is no privity nor (c) estate in the lessee upon which the release of the disseizee may enure, unless it be taken that the release of the disseizor first enured, and afterwards the release of the disseizee. So that when there is matter sufficient, the law adjudges what thing shall precede, and what shall follow, (d) And so if tenant for life makes a lease for years, and the tenant for life and the reversioner in fee confirm the estate of the tenant for years, to have the land to him and to his heirs, there he shall [541] have the fee, because the law will adjudge the estate of the tenant for life to pass first, and afterwards the estate of him that had the fee, so that the lessee may have privity, whereupon the release of the...
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