Tomlinson v Dighton
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1711 |
| Date | 01 January 1711 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 335
Chancery Division
Distinguished, Freeland v. Pearson, 1867, L. R. 3 Eq. 662; 36 L. J. Ch. 375. See Humble v. Bowman, 1877, 47 L. J. Ch. 63.
Argument for the Defendant.
IP. WMS. 149. TOMLINSON V. DIGHTON 335 [149] Case 41.-tomlinson versus DlGHTON.(l) Writ of Error from a Judgment in C. B. on a Special Verdict in Ejectment. [Distinguished, Freeland v. Pearson, 1867, L. R. 3 Eq. 662; 36 L. J. Ch. 375. See Humble v. Bowman, 1877, 47 L. J. Ch. 63.] Argument for the Defendant. Salk. 239; 10 Mod. 31; Com. Rep. 194; 2 Eq. Ca. Ab. 309, pi. 13. Devise to A. the testator's wife for life, and then to be at her disposal, provided it be to any of his children, gives an estate for life, with a power to dispose of the fee. (2) And where such devisee with an after taken husband did by lease and release, and fine, convey the premisses to a trustee and his heirs, to the use of the wife for life, without impeachment of waste ; remainder to her daughter by her first husband, and the heirs of her body, remainder to the son by her first husband and his heirs : this adjudged a good execution of the power. The case in short is but this ; John Tomlinson, seised in fee of the land in question, devises the premisses to his wife Margaret for her life, and then to be at her disposal, provided it be to any of his children, if living, if not, to any of his kindred that his wife shall please. The' testator dies leaving issue William and Hester ; Margaret the testator's widow marries one Simeon Sisson, her second husband, and they two, by indentures of lease and release, reciting the testator's will, grant the premisses in question to trustees and their heirs, to the use of Margaret herself for her life, sans waste; remainder to the use of Hester, the testator's daughter, and the heirs of her body, remainder to the use of William the testator's son and his heirs. In the deed of release there is a covenant, that this Sisson, and Margaret his wife should levy a fine of the premisses to the uses above-mentioned, which fine was accordingly levied. And the only question is, whether this lease and release, [150] and fine, pass a good estate to Hester, and the heirs of her body, expectant upon her mother's death 1 if so, then she being dead, Robert Carlisle, the heir of her body, and lessor of the plaintiff, has a good title. And I humbly take it, here is a good estate conveyed to Hester, and the heirs of her body. In this case I shall only make two points, first, What estate passes by this will to Margaret the testator's wife, whether a fee-simple, or only an estate for life, with a power to dispose of the fee to any of her first husband's children, or kindred 1 Secondly, Admitting that Margaret has but an estate for her life by the will, with a power to dispose of the premisses to any of her first husband's children, &c., whether she has well executed this power, in respect of her being, at that time, under coverture with her second husband, and (which is the chief question) in respect of the improper conveyance which she has made use of for this purpose. And, with submission, I take it, that the declaring or limiting the use by the release to Hester and the heirs of her body, expectant upon her mother's death, is a good appointment, and a good execution of the power. As to the first question, I would beg leave to put it as a short case : A man seised in fee, devises his lands to his wife for her life, and then to be at her disposal, provided she disposes of the premisses to any of his children; The question is, what estate the wife has by the will in this case 1 [151] And I think it might be reasonably insisted, that by this devise of the land to the wife for her life, and then to be at her disposal, she has a fee-simple. And that the following words [provided she disposes of the premisses to any of the testator's children,] annex a condition to this fee, and make it a conditional fee-simple, to be void, if the wife does not dispose of the premisses to some or one of her first hubsand's children. As to the former words, if they were only thus, I devise my lands to my wife, and to be at her disposal, there could be no question, but this would be a fee-simple. A devise of lands to one, to give and to sell, is a fee-simple. 1 Inst. 9 b; 1 Roll. Abr. 834 (7). The power of disposing and the power of selling, are the badges of absolute ownership; and therefore, where lands are devised to any one with these powers, the devisee has an absolute ownership, and that is a fee-simple. 336 TOMLINSOIST V. DIGHTON 1 P. WMS. 152. It is true, that in this case, if there were n6t a devise of the lands to the wife, but only a devise that the wife might dispose of the land, this might give the wife a power only, and not an interest ; like a devise that my executors shall sell my land, this only gives a power, and no estate, to my executors. But if I devise my land to my executors to sell, this passes an estate to my executors, and that estate is a fee-simple. 1 Inst. 113 a. So in the principal case, the devise being of the land itself to the wife, and to be at her disposal, these words, if they went no farther, would pass a fee-simple to the wife. But it is very true, here are afterwards restraining words in [152] the will; which say, / give my lands to my wife for life, and then to be at her disposal, provided she dispose of the premisses to any of my children; which latter words, as I take it, annex a condition to this fee, and subject it to a forfeiture, if she does not dispose of the premisses to some or one of her first husband's children. I shall beg leave to mention two cases, wherein are the like restrictive words with the principal case, and go a great way in proving it to be a fee-simple. In Dalisson, 58 (anonymous case), A man by his will devises land to his wife, to dispose and employ it upon herself and her son. at her will and pleasure ; and held by Dyer, G. .!., Weslon and Walsh justices, that the wife had a fee-simple; but yet the words [to employ the premisses upon herself and her son], being in a will, make the fee-simple devised conditional only, so that if the wife should alien to a stranger, it would be a forfeiture. So in the principal case, where the devise is of the lands to the wife to be at her disposal, provided she disposes of the same to any of his children, &c., the former words make a fee-simple and the latter words restrain them to a conditional fee. that the wife shall not alien from the first Imsband's children, &c. The other case is the case of Daniel and Ubley, reported 1 Jones, 137; Latch. 39, 134; Noy, 80; Bendl. 178. Where a man devises his lands to his wife to dispose at ò her will and pleasure, and to give to such of my sons as she thinks best; and by Crew, G. J., Whitlocka.nd Doderidge, against Jones, J., it is [153] resolved, the wife had a fee-simple in point of interest, and not a bare power only to dispose of the fee-simple. Which case comes very near our case. I must agree, there is this, and this only difference, between the principal case and these two which I have cited, viz. that in the principal case now before the court, the will gives an express estate for life to the wife, and afterwards the premisses are to be at her disposal. But in the cases cited, no express estate for life is given to the devisee, only a devise of the lands to the wife in general, and she to dispose of them as she shall think fit; how far this difference may weigh with your Lordship, I submit. If by the devise of the lands to the wife to be at her disposal, a fee-simple passes (as is plain from these authorities which I have cited), then a devise to the wife to be at her disposal, is equivalent to a devise to the wife and her heirs. And if so, then I submit to your Lordship, whether it is not the same, as if the devise were to the wife for her life, remainder to her and her heirs, which would be a plain fee-simple ; and if it be a fee-simple in the wife, then she and her second husband (Sisson) afterwards joining in the lease and release, and fine to the trustees, to the use of herself for life, with remainder to the use of her husband's daughter Hester, and the heirs of her body, this passes a plain estate-tail to Hester. And then the wife and the daughter Hester being both dead, her son Robert Carlisle, the lessor of the plaintiff, has an undoubted title. [154] But, my Lord, I must admit there are two cases that are...
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