William Thorpe and Hannah Pitkin v Elizabeth Thorpe
| Jurisdiction | England & Wales |
| Judgment Date | 02 June 1862 |
| Date | 02 June 1862 |
| Court | Exchequer |
English Reports Citation: 158 E.R. 911
IN THE COURT OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 32 L. J. Ex. 79, 8 Jur. (N. S) 871, 10 W. R. 778.
1 H. A C. 327. THORPE V. THORPE 911 WriiiAM thorpe and hannah pitkin v elizabeth thorpe. June 2, 1862.- A testator named Henry Thorpe devised his real estate to trustees to permit his son Henry to receive the rents thereof during his life, and after his decease, the testator devised the property to the heirs of the body of his son Henry, and for want of such issue to the testator's nephew Henry for life, and after his death to the testator's " right heirs of the name of Henry Thorpe, if any such there should then be, for ever." Held, that the ultimate limitation was a contingent remainder which would vest in the person who at the time of the nephew's death filled the character of a right heir of the testator and had the name of Henry Thorpe , but, there being at that time no person who answered both descriptions, the property vested in the testator's heir-at-law. [S. C. 32 L J. Ex. 79, 8 Jur. (N. S) 871, 10 W. R. 778.] Ejectment to recover possession of a messuage and lands at Preston Bisset, in the county of Buckingham. 327] The cause came on for trial, before Erie, C. J , at the Buckinghamshire Summer Assizes, 1861, when a vetdict was entered for the plaintiff William Thorpe, subject to the opinion of the Court on the following special case : - The property sought to be recovered consists of a house, homestead and fifty acres of land, of which one Henry Thorpe, hereaftei called the testator, who died on the 21st October, 1820, before and at the several times of making his will and of his death, was seised in fee simple in possession The testatoi's will, dated the 29th of September, 1804, was (so far as material to the present case) as follows - " I give and devise all that my messuage or tenement with the homestead and appurtenances thereto belonging, and also those my several closes, &c, situate in the parish of Preston Bissett, in the county of Bucks, and now in my own occupation, and all and every other my messuages, lands and real estates whatsoever and wheresoever, unto J. King, J. Kearse and W Thornton, their heirs and assigns, during the natural life of my son Henry Thorpe, upon this special trust and confidence in them reposed, and to the intent and purpose that they the said J King, J. Kearse and W. Thornton and the survivors and survivor of them, and the heirs and assigns of such survivor, do and shall permit and suffer my said son Henry Thorpe to take, have, hold, occupy, possess and enjoy the said messuage or tenement, hereditaments and E remises,, with the appurtenances (or in case it should be found most expedient to it or lease the same to some othei person or persons), to permit and suffer him to receive and take the rents, issues and profits thereof to and for his own use and benefit for and during the term of his natural life. And I do hereby beseech and request them the said J. King, J. Kearse and W. Thornton, and the survivors and survivor of them, and the heirs and assigns of such survivor, to advise, direct, and assist my said son Henry Thorpe in the conducting and [328] management of his business and affairs, and on account of his incapacity to superintend the same for him. And from and immediately after the decease of my said son Henry Thorpe, I give and devise all and singular the said hereditaments and premises, with the appurten-ances^ unto the heirs of the body of my said son Henry Thorpe lawfully issuing for ever. And for want or in default of such issue, I give and devise the said hereditaments and premises, with the appurtenances, unto my nephew Henry Thorpe (son of my brother James Thorpe), and his assigns, for and during the term of his natural life, without impeachment of or for any manner of waste, and from and immediately after his decease, I give and devise the said hereditaments and premises with the appurtenances unto my own right heirs of the name of Henry Thorpe, if any such there shall be, for ever." Henry Thorpe, the son, and Henry Thorpe, the nephew, survived the testator. On the death of the testator, Henry Thorpe the son being a lunatic, his trustees entered into possession of the property and paid the rent to him until his death. Henry Thorpe, the son, died a lunatic and unmarried on the 23rd March, 1832. Henry Thorpe, the nephew, then entered into possession of the said estate, and...
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