Samuel Newcomen, and Mary his wife, v Edward Barkham, and Sir William Massenburgh et Al; Edward Barkham v Newcomen & Ux', Sir William Massenburgh, Dimock Walpool and John Walpool
| Jurisdiction | England & Wales |
| Judgment Date | 09 February 1716 |
| Date | 09 February 1716 |
| Court | High Court of Chancery |
English Reports Citation: 23 E.R. 1078
LORD CHANCELLOR.
And see Cholmondeley v. Clinton, 2 J. & W. 106 et seq.
1078 NEWCOMEN V. BARKHAM 2 VERN. 729. [729] de term. S. hillarii, 1716, in curia cancellari^e. Case 644.-samuel newcomen, and mary his wife, versus edward barkham, and Sir william massbnburgh & Al'; edward barkham versus newcomen & Ux', Sir william massenburgh, dimock walpool and john walpool. Lord Chancellor. Feb. 9 [1716]. Pre. Ch. 442, 461 ; Nomine Brown . Barkham, Eq. Ca. Ab. 215, pi. 14, S. C. A. devises lands in trust, after debts paid, to convey the premises to the heirs male of the body of B., the testator's great grandfather. C. is the heir male of the body of B. but not heir general, there being a daughter of an elder brother, who is heir general. Decreed trustees to convey to C. As C. would be well intitled to take as heir male by descent, so he is sufficiently described to take by purchase. Sir Edward Barkham having no issue, 19 Jan. 1709, made his will, and devised his real estate to Sir William Massenburgh and Walpool, and their heirs, in trust by rents and profits, and sale of such part, or of so much as should be necessary, to raise money for payment of his debts and legacies, and to convey the rest and residue of all his lands, tenements, and hereditaments, which should remain unsold, to his cousin Robert Barkham, and the heirs male of his body; and for want [730] of such heirs male, then to the heirs male of the body of Sir Robert Barkham his great grandfather ; and for want of such heirs male, to his own right heirs for ever. And directed, that the overplus of the money should be paid to his cousin Robert Barkham, or to such heirs male as should be intitled to the residue of his manors and hereditaments by his will; and thereby gave to his sister Newcomen 2000 to be put out at interest during her life, she to receive the interest, and after her death to her children. Sir Edward Barkham died in about a year after, and Robert Barkham died soon after in Spain, without issue. The plaintiff Edward Barkham-j who was the brother of the said Robert Barkham, being then in the East Indies, now brought his bill, as being the heir male of the body of Sir Robert Barkham, the testator's great grandfather, against the trustees, and Mrs. Newcomen, to have a conveyance of the trust-estate ; and Mrs. Newcomen's bill was that the trustees might account, and convey to her, as being the only sister and heiress of the testator. The question was to whom the trustees should convey, whether to the plaintiff Edward Barkham, as the person described, and intended to take by the will, being the heir male of the body of Sir Robert Barkham, the testator's great grandfather, or to Mrs. Newcomen, the testator's sister and heiress at law, who insisted, that although the plaintiff Edward Barkham was heir male of the body of Sir Robert Barkham, and might have taken as such by descent, or by way of limitation; yet being to take by way of purchase, he ought to be as well heir general, as heir male of the...
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