The King v Sarah Wylie and Another

JurisdictionEngland & Wales
Judgment Date14 June 1804
Date14 June 1804
CourtCourt of Common Pleas

English Reports Citation: 127 E.R. 393

AT THE OLD BAILEY.

The King
and
Sarah Wylie and Another

[Referred to, R. v. Bond, [1906] 2 K. B. 400.]

I BOB.* PV M (N. R.) 91. REX V. W YLIN Rose v. Hill deed d ? By Lord Mansfield, Mr. Justice Wilmot, and Mr. Justice Yates : the two former of whom having been in the constant habit of attending the Court of Chancery, their attention must often have hien called to the case of Lord Bindon v. Lord &Pik. It has been argued that the case of Lord Bindon v. Lord Suffolk was reversed in the House of Lords ; but I think that decision right, and it has been supported by the subsequent authorities referred to in Mr. Coxe's P. Wms., particularly the case of Stringer v. Phillips. It is true that the latter words might be limited to the heirs of the body of the survivor or survivors, and so not extend to the first taker. But there does not appear to me any difference between this case and that of Stringer v. Phillips, except that in the present instance an express tenancy in common is created, whereas in Stringer v. Phillips the words were " equally to be divided between them," which are usually held to create a tenancy in common. I do not think any of the cases cited for the Plaintiffs apply to this case. Irr the case of Armstrong v. Eldridge the testator, after directing the trustees to pay the proceeds of an estate equally, between his grand-daughters for their lives, says, and after the decease of the survivor of them, in trust, to pay to and amongst all the children of the devisees. Now whatever might be the meaning of the former words of the devise, it was quite impossible to say E91] that the testator meant that the children of his grand-daughter should receive any thing until all his grand-daughters were dead ; for the limitation to the children is not to take place until after the decease of the survivor of the first devisees. The case of Barker v. Giles turned on the meaning of the word " survivor," to which Lord Chancellor King could not give effect without making it a joint-tenancy, In the case of rackerman v. Jefferies, there was a remainder limited after the death of the survivor of the first devisers, which therefore could not take effect until both were dead. The case in 2 Roll. Abr. 90 has already received an answer from my brother Lens. The words of the present case make it impossible to put any other construction upon the will than that which we have adopted. The case of Roebuck v. Deane, together with the others referred to in the argument, which followed that of Stringer v. Philip; all plainly show that in a demise of personal estate the plain sense of which to give a tenancy in common, the word survivorship must be taken to mean a survivorship at the death of the testator. Oa these grounds, therefore, we shall certify our opinion to the Court of Chancery, that Robert...

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2 cases
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