Roe, on the Demise of the Right Hon. Thomas Conolly, against Vernon and Vyse
| Jurisdiction | England & Wales |
| Judgment Date | 26 April 1804 |
| Date | 26 April 1804 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 988
IN THE COURT OF KING'S BENCH.
Referred to, Portland v. Hill, 1866, L. R. 2 Eq. 776.
[51] ROE, ON THE DEMISE OF THE RlGHT HON. THOMAS CONOLLY, against vernon and vyse. Thursday, April 26th, 1804. Where there is a grant of a particular thing once sufficiently ascertained by some circumstance belonging to it, the addition of an allegation mistaken or false respecting it will not frustrate the grant: but where a grant is in general terms, there the addition of a particular circumstance will operate by way of restriction and modification of such grant. Therefore where one having customary tenements, compounded and uncompounded, surrendered to the use of his will "all and singular the lands, tenements, &c. whatsoever in the manor, which he held of the lord by copy of court-roll,'in whose tenure or occupation soever the same were, being of the yearly rent to the lord in the whole of 41. 10s. 8Jd. and compounded for;" Held that the words, " and compounded for," restrained the operation of the surrender to that description of copyholds then belonging to the surrenderor. And that the words " being of the yearly rent, &c. of jX 10s. 8Jd." which were not referable to any actual amount of the rents either compounded or uncompounded, though much nearer to the whole than to the compounded only^ could not qualify or impugn that restriction. Where a testator had freehold, customary, and copyhold estates; and after introductory words, as to all his worldly estate, devised two rent-charges out of all his real estate, and also two copyholds in Middlesex for lives; and subject thereto devised " all his freehold manors, lands, &c. in Yorkshire and other counties, and the reversion itf the_two copyholds to his son for life, with successive remainders.in tail male to his first and other sons, with like remainders to other branches in the male line: and in default of such issue he devised all,his "said (freehold) manors, land," &c. to his eldest daughter in tail male in strict settlement, with like remainders to his second and third daughters : and by the residuary clause devised ail other his manors, lands, ,&e. either freehold or copyhold (except those in the counties of York, &e. which he had before disposed of), subject to the said rent-charges, in failure of issue male of his son and himself, to his three daughters, as tenants in common, in fee : Held that certain customary estates, which the devisor had, with freehold property in Yorkshire, did not, on failure of the male line, pass to the eldest daughter under the description of all his freehold manors, lands, &c. in that and other counties. For, supposing that the freehold of such customary estates be in the tenant, and not in the lord, they being holden not at the will of the lord'as pure copyholds, but according to the custom of the manor, and the tenants being entitled to the timber and mines, and the estates being demised and demiseable in fee simple or otherwise ; yet as they were holden by copy of court-roll, and passed by surrender and admittance, and were generally reputed and called copyholds, and the testator having distinguished the other parts of his will between copyhold and freehold, he must be presumed to have used the word freehold in its usual and popular signification, as not including these customary estates considered by himself as copyholds; and therefore such customary estates passed to the three daughters under the residuary clause. And it seems that as by such residuary clause the daughters would not take till failure of issue male of the son. and the devisor; 5 EAST, 52. ROE V. VERNON 989 he, the son, the heir at law, took an estate-tail by implication in the customary estates not before devised. [Referred to, Portland v.Hitt, 1866, L. E. 2,Eq. 776.] ' . This was an action of ejectment, on a demise laid the 1st of August 1802, for the recovery of certain customary tenements in the manor of Wakefield, in the county of York, which was tried before Eooke J. at the last York Assizes; when a verdict was given for the plaintiff, subject to the opinion of the Court on the following case: The customary tenements within the manor of Wakefield in the county of York are of two sorts, compounded [52] and uncompounded; the compounded are liable to a. fine certain- on alienation and descent, by reason of a composition or agreement anciently made with the lord of the manor : the uncompounded are those for which no such agreement has been made, and are therefore liable to a fine arbitrary, that is, a fine not exceeding two years improved value of the premises. Thomas Earl of .'Stratford, being seised in tail male, viz. to him and the heirs male of the body of his father Sir William Wentworth deceased, (which estate is now extinct,) with reversion to himself in fee, as eldest son and heir of his father, of certain customary tenements, with the appurtenances, in the manor *of Wakefield, as well compounded as uncompounded, holden of the lord by copy of court-roll, by rents and services, according to the custom of the manor; and also seised of a moiety of certain other customary tenements in the manor, holden in like manner of the lord,-viz. of certain customary tenements compounded, in fee, and of certain customary tenements uncompounded, in tail general, (which estate tail is still subsisting.) with reversion to himself in fee; and also seised in fee of certain other customary tenements which he himself had lately purchased; on the 10th of April 1732, according to the custom of the manor, made the following surrender out of Court of his customary tenements, with the appurtenances, to the use of his will; "All and singular the messuages, dwelling-houses, cottages, closes, lands, tenements, and hereditaments whatsoever, with their and every of,their appurtenances, situate, lying, and being in Wakefield, Stanley, Alverthorpe, Thornes, and Sandal Magna, or lsewhere within the said manor of Wakefield, which he the said earl now holds of the lord of the said manor of Wake-field by copy of court-roll, in whose tenures or occupations soever the same now are or be, being of the [53] yearly rent to the lord in the whole of 41. 10s. 8Jd. and compounded for." Which surrender was not brought into Court till the year 1741, after the death of the said earl, when the same was presented according to the custom of the manor. The said rent of 41. 10s. 8|d. exceeded the amount of the rents payable to the lord for the "compounded customary tenements of the said Thomas Earl of Stratford; Sir William Wentwortb, the father of Thomas Earl of S. having, on his admission in 1672 to the premises of which the earl was seised as aforesaid, (except those lately purchased by him,) paid a fine for his compounded customary tenements only of 31. 15s., being three times the amount of 11. 5s., the lord's rent for the same, and a fine of 801. for his uncompounded lands. The whole of the rents paid to the lord by William Earl of Stratford hereinafter mentioned and his successors for all the said customary tenements, both compounded and uneompounded, amounted to 41. 14s. 6d., of which sum Is. 9d. was for the rents of the lands purchased by Thomas Earl of Stratford. Thomas Earl of Stratford, on the 22d of June 1732 by his will of that date, duly executed, &c. " As to the worldly estate with which it had pleased God to bless him," in the first place devised to his wife " out of all his real estate in the counties of York, Nottingham, and Lincoln, an annuity of 20001. in lieu of her dower or thirds at common law, which she might otherwise claim out of any part of his real estate, which he had been or should or might be seised of at any time during their intermarriage." And after giving her for life all that his copyhold messuage and garden in Twickenham in the county of Middlesex,,'then in his own possession, and which he had surrendered to the use of bis will; and after devising out of all his 'real and personal estate whatsoever to his [54] mother an annuity of 2001. for her life, and the little house at Twickenham aforesaid in which she then lived, the same being copyhold, and surrendered to the use of Ms will, in lieu of her jointure, dower, and thirds at common law, and all other demands out of the real and personal estate of her late husband his deceased father, Sir W. Wentworth; the will proceeds thus : " And as to all my freehold manors, messuages, lands, tenements, and hereditaments, in the counties of York, 990 ROE V. VERNON 5 EAST, 55. Nottingham, Lincoln, Northampton, Suffolk^ Kent, Surry, and Middlesex, or elsewhere in Great Britain, subject as to the said premises in the said counties of York, Nottingham, and Lincoln, to the said two several rent-charges of 20001. per annum and 2001. per annum, so hereby respectively devised to my said wife and mother as aforesaid,-in manner as before and after mentioned, and likewise subject to all legacies, &c., my personal estate being first to be applied for that purpose, I do give and devise all my said freehold premises, from my decease, and also I devise my two copyhold messuages in Twickenham aforesaid, from and after the respective deceases of my said mother and wife respectively, unto my only son William Lord Wentworth for life, without impeachment of waste,- as to such part of -the premises as are freehold, other than voluntary waste by pulling down Wentworth Castle," &c.: with successive remainders in tail male to the first and other sons of his said son William Lord Wentworth, and afterwards to the second and all other the sons of the testator; and then as follows, "And in default of such issue male of my body, the said two several annuities of 20001. per annum and 2001. per annum, instead of issuing out of my said manors and lands in the said counties of York, Lincoln, and Nc-tting-[55]-ham, shall, in ease of my brother Peter...
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