Sir James Lowther against Lord Charles Cavendish
| Jurisdiction | England & Wales |
| Judgment Date | 27 May 1758 |
| Date | 27 May 1758 |
| Court | High Court of Chancery |
English Reports Citation: 27 E.R. 237
HIGH COURT OF CHANCERY
Case 183.-Sir james lowther against Lord charles cavendish. 27th May 1758. One having freehold and leasehold estates in C., devises all his manors, lands, tenements, mines of coal and lead, to, &c. Held, the leasehold as well as freehold passed.- [Lib. Reg. 1757, B. fo. 338. S. C. 1 Eden, 99.] Sir James Lowther, deceased, having both estates of inheritance and leaseholds in the county of Cumberland, by will devised in these words : " I give all my manors, " lands, tene [357]-ments, mines of coal and lead, rents and hereditaments whatsoever, " in Cumberland, to James (now Sir James) Lowther (the plaintiff) in tail. And " whereas I am owner of several burgage tenures in Cockersmouth, it is my will they " shall not be intailed, as I have done my other estates in Cumberland ; and, therefore, " I devise them to Sir William Lowther and his heirs. And whereas I think it right " for James Lowther to have all the estates which Sir William has in Cumberland, " and for Sir William to have all the estates which James Lowther has in Yorkshire, " I give 30,000 stock to Sir William Lowther and A., in trust for James Lowther, " to receive all the dividends, till Sir William Lowther shall by absolute conveyance " make over to James Lowther and his heirs all his estate in Cumberland, and James " shall make over his estate in Yorkshire to Sir William : and in case of neglect or " refusal by either within eight months after James Lowther comes of age, such person " shall not have any share of the 30,000 ; and in case it is made good and completed " by them both, the 30,000 to be equally divided between them." And he made Sir William Lowther sole executor and residuary legatee. Sir William Lowther died before any exchange was made, and before Sir James came at age. Two questions arose : 1st. Whether the leasehold estates passed by the devise to James Lowther, or came to Sir William, as residuary legatee 1 2d. Whether James Lowther, the plaintiff, was become entitled to the legacy of 30,000 ? Sir Robert Henley, Lord Keeper : It is plain from the cause excepting the burgage tenures, that the testator thought he had entailed these leaseholds upon Sir James. The word " estates " in the will, is a general term, and comprehends both freehold and leasehold, and is not restrained to either.(l) But it iij) said, that he having both sorts of estates, by the general word...
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