Wigg v Wigg
| Jurisdiction | England & Wales |
| Judgment Date | 02 July 1739 |
| Date | 02 July 1739 |
| Court | High Court of Chancery |
English Reports Citation: 26 E.R. 244
HIGH COURT OF CHANCERY
See In re Kirk, 1882, 21 Ch. D. 435.
[382] Case 174.-wigg v. wigg. July the 3d, 1739. [See In re Kirk, 1882, 21 Ch. D. 435.] 8. C. cited 1 Ves. 137. E. W. devises lands to his second son Thomas, upon condition that Thomas or his heirs shall pay to his grandchildren (the children of the said Thomas) 90, to be equally divided among them, and on default of payment, a clause of entry and distress. Thomas died in the testator's life-time ; the son of the eldest son of the testator entered on the lands as heir at law, and sold them. The legacy to the children of Thomas, the testator's second son, is a continuing charge on the lands in the hands of the purchaser, and they are in titled to be satisfied for the same with interest. (So Hills v. Whirley, post, 2 vol. 605. Oke v. Heath, 1 Ves. 135, 141.) Edward *Wigg, by will dated the 8th of November 1710, devised the lands named in the pleadings, " To his second son Thomas, upon condition that the said Thomas, " or his heirs, shall pay and satisfy to his six grandchildren (the children of the said " Thomas) the sum of 90, to be equally divided among them ; and in default of pay-" ment of all or part, there was a clause of entry and distress." Thomas the devisee died in the life of the testator ; the son of the eldest son of the testator entered on the lands as heir at law, and sold the lands to a purchaser for a valuable consideration. The question was, Whether this is a continuing charge on the lands in the hands of the purchaser 1 Mr. Brown and Mr. Noel who were counsel for the defendant, the heir at law of the testator, insisted, that this was only a personal condition on Thomas, the devisee 1 ATK. 383. WIGG V. WIGG 245 and his heirs, there being no words in the will to give a legacy to his children, otherwise than depending on. such personal condition, and that where a person claims under a will, but claims nothing except under an estate given by that will to another person, if such estate did never arise (as here it never did), nothing intended to be annexed to it can survive, that this was an estate given upon express terms of condition, and not within the rules of being construed a conditional limitation, as not being to be performed by him who could receive a benefit from the non-performance, and that as it is not limited over, it ought to be construed strictly, as being to disinherit an heir at law, and that the beneficial...
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