White v Collins
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1792 |
| Date | 01 January 1792 |
| Court | Court of the King's Bench |
English Reports Citation: 92 E.R. 1076
COURT OF KING'S BENCH, COMMON PLEAS AND EXCHEQUER
Distinguished, Britton v. Twining, 1817, 3 Mer. 182. Discussed, Chambers v. Taylor, 1837, 2 My. & Cr. 387; Montgomery v. Montgomery, 1845, 3 Jo. & Lat. 51; 8 Ir. Eq. Rep. 745. Considered, Jordan v. Adams, 1859-61, 6 C. B. N. S. 762; 9 C. B. N. S. 494. Approved, Pedder v. Hunt, 1887, 18 Q. B. D. 572.
[289] de term. sanct. mich. 5 geo. I. in C. B. case 154. white vers. collins. [Distinguished, Button v. Twining, 1817, 3 Mer. 182. Discussed, Chambers v. Taylor, 1837, 2 My. & Cr. 387; Montgomery v. Montgomery, 1845, 3 Jo. & Lat. 51 ; 8 Ir. Eq. Rep. 745. Considered, Jordan v. Adams, 1859-61, 6 C. B. N. S. 762 ; 9 C. B. N. S. 494. Approved, Pedder v. Hunt, 1887, 18 Q. B. D. 572.] A limitation to one to take and enjoy the profits of an estate during his life, and after his decease to the heir male of his body, would make an estate-tail where nothing appears which explains the testator's intent to the contrary ; otherwise not. 2 Eq. Abr. 313, pi. 19, S. C. Vin. Abr. tit. Devise (B. b.), pi. 19. Com. Dig. tit. Devise (N. 5). Eobinson's Gavelkind 96. Ambl. Rep. 453. Hargr. L. Tracts, 505. Fearne's Con. Rem. 4th edit. p. 234. A writ of false judgment was brought upon a judgment in ejectment given in the court of Havering atte Bower in com' Essex, being a court of ancient demesne of the manor of the King, in which White declared on the demise of Carew Harvey, alias Mildmay, for one messuage, one barn, one garden, one orchard, forty acres of land, forty acres of meadow, and fifty acres of pasture, with their appurtenances, in Horn-church infra jurisdiction' Cur'; upon not guilty pleaded, at the trial the jury by consent found a special verdict to this effect: That Francis Harvey, al' Mildmay Esq. was seised in fee of the lands in question, (which were the ancient demesne of the Crown) and by his will dated the 26th of July 1701, devised to his eldest son (who was lessor of the plaintiff) two fields for life, and after his death, I give those two fields to the heir male of his body lawfully begotten, during the term of his natural life; and after the death of such heir male, I give the said fields, and all the lands and tenements not sold by my executors and trustees, to my son Francis Mildmay during his life ; and to the heir male of his body lawfully begotten, during the term of his natural life ; and for want of such heir male, I give those two fields and all my lands not sold, [290] &c. to my son Carew Mildmay, during his life; and after his death to the heir male of his body lawfully begotten, during the term of his natural life; and for want of such heir male, I give the said fields and lands amongst all my daughters which shall be alive at my death. And by another clause in the said will he devises the lands in question by these words, (viz.) I give to my son Frank Mildmay my farm called East-House Farm, &c. to enjoy the rents and profits thereof during the term of his natural life ; with power to make a jointure of all or part if he should marry; and after his death and jointure, if any be made, to the heir male of his body lawfully begotten, during the term of his natural b'fe; and for want of such heir male, I give the said farm to my son Carew Mildmay, during his life; and after his death, I give it to my grandchild Carew 1COMYNS.291. DE TERM. SANCT. MICH. 5 GEO. I. 1077 Mildmay, during his life; and afterwards he gave it to his grandchildren Edward and Richard Mildmay, equally to be divided. The jury further found, that the testator died leaving Carew Mildmay his eldest son, and Francis his second son; that the eldest son, at the time of the will made and at the death of the testator, had issue Carew, Edmund and Richard, but Frank the second son was not married, nor had any issue ; that Frank Mildmay entered, and by deeds of lease and release dated the 9th and 10th of July conveyed the said lands, called East-House Farm, to Robert Coleman and his heirs, to make him tenant of the freehold, against whom a common recovery might be had, to the use of Frank Mildmay and hia heirs; and afterwards, at the court for the manor of Havering atte Bower, on the 22d of July, upon a writ of right close tested the 23d of January a recovery was suffered, in which Frank Mildmay was vouchee, who afterwards by his will dated the 8th of March, 1714, devised the said lands to his younger brother, &c. and died ; the younger brother entered and was seised prout lex postulat; upon whom Carew Mildmay the lessor of the plaintiff entered, and demised to the plaintiff; and if, &c. The common error was assigned, and the principal question upon this special verdict was; [291] If by this devise to Frank Mildmay he was tenant in tail, or for life only 1 For if he was only tenant for life, his recovery is of no avail, and the lessor of the plaintiff will have a good title ; but if he was tenant in tail, his recovery has barred, or at least discontinued the remainders limited by his father's will, and then the lessor of the plaintiff has no title or entry. I held, that the common recovery barred the intail. Kit. 97. I argued, that by this devise of Francis Harvey, al' Mildmay, his son Frank Mild-may had an estate-tail; and for the better apprehending this, it will be necessary to consider the words of the devise. If the devise had been, I give to my son Frank Mildmay, and to the heir male of his body; this would without question have been an estate-tail, though the word heir is nomen collectivum, and comprehends all the heirs which shall descend from his body; and so it was agreed by all the justices in the case of Clark ver. Day, Cro. Eliz. 313. Owen 148, though in the principal case there the Court was divided. In a conveyance at common law those words make an estate-tail. Co. Litt. 22 a.(l) cites the case 39 Ass. 20, where the grant was to baron and feme & uni haered' de corpore suo procreat', & uni beared' tantum, &c. In an assise brought...
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Between Elizabeth Murthwaite, John Macpherson and Charlotte his Wife, Francis Lind, and John Hudson May v the Honourable Charles Cecil Pope Jenkinson, the Honourable Henry King, the Reverend John Mitchel, John Cuthbertson, Maria Barnard, Alexander Hume Evelyn, John Byde, George Barnard, Charles Murthwaite, and Henry Woodcock
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