267 Thrustout v. Coppin, 3 Wils. 277. 73 Tilley v. Simpson, 2 T. R. 659. n. (b.) 8 Trent v. Hanning, 4 B. & P. 116. 10 Ves. 4 Trull v. Bigelow, 16 Mass. 406. 267 Van Bramer v. Cooper, 2 Johns. 279. 69 Vanderkerr v. Vanderkerr, 11 Johns. 122. 2 Van Slyck v. Kimball, 8 Johns. 198. 76 Van Vechten v. Hopkins, 5 Johns. 226. 37 Vaughan v. Barnes, 2 B. & P. 392. 49 Vigers v. Aldrich, 4 Bur. 2482. 69 Villiers v. Hastings, Cro. Ja. 286. 13 Vinyor's case, 8 Co. 80. Stoddart v. Palmer, 3 B. & C. 2. 55 and 209 Stonehouse v. Ilford, Com. R. 145. Strong v. Tompkins, 8 Johns. 98. Stroud v. Rogers, 6-T. R. 63. n. b. Stubbs v. Rightwise, Cro. El. 102. Style v. Hearing, Cro. Ja. 73. Styles v. Wardle, 4 B. & C. 908. Sumner v. Williams, 8 Mass. 201. Swan v. Stransham, Dy. 257. a. Sweet v. Palmer, 16 Johns. 181. Sydenham v. Man, Cro. Ja. 407. Talmadge v. Chapel, 16 Mass. 71. Wellock v. Hammond, Cro. El. 204. Weleden v. Elkington, 2 Plowd. 523. Welles v. Girling, 8 Taunt. 737. Welsh v. Foster, 12 Mass. 93. Wetherden v. Emden, 2 Camp. 295. Wennal v. Adney, 3 B. & P. 247. Wetherell v. Howells, 1 Camp. 227. Weston v. Hunt, 2 Mass. 500. Whalley v. Thompson, 1 B. & P. 371. Whitbeck v. Cook, 15 Johns. 483. v. Van Ness, 11 Johns. 409. Whitaker v. Whitaker, 6 Johns. 119. 88 and v. Cone, 2 Johns. Ca. 58. Wheelwright v. Wheelwright, 2 Mass. " 447. White v. Cuyler, 6 T. R. 177. " v. Dingley, 4 Mass. 433. v. Wilson, 1 B. & P. 116. Whiting v. Cochran, 9 Mass. 533. Whitney v. Peckham, 15 Mass. 243. Whitwell v. Bennett, 3 B. & P. 559. Wichals v. Johns, Cro. El. 703. Wicks v. Fentham, 4 T. R. 248. Widow v. Clark, Cro. El. 76. Wicket v. Creamer, I Salk. 264. Wigley v. Ashton, 3 B. & A. 101. Wilcox v. Watson, Cro. El. 405. Wildman v. Glassop, 1 B. & A. 9. Wilkins v. Wingate, 6 T. R. 62. 6 Wotton v. Hale, 2 Saund.177. 4 267 Worthington v. Hyler, 4 Mass. 205. 73 Wright v. Kitchingman, 1 Str. 198. 171 210 88 v. Ramscot, 1 Saund. 84. 283 267 Wyman v. Ballard, 12 Mass. 304. 4 13 Wynne v. Middleton, 1 Wils. 125. 2 Str. 283 1227. 328 HOBART'S REPORTS. CLANRICKARD US. LISLE. In formedon in reverter by baron and feme, the right may be laid in both, or in the feme alone; but in formedon in descender, it must be laid in the feme alone. Sussex. Mich.11. verter, to the wife, by the 1. 154. Post. ment 12. Hutt. RICHARD Earl of Clanrickard, and the lady Frances his wife, brought a formedon in reverter against Robert Sid- Formedon in reney Viscount Lisle, of divers messuages, lands, and ten- husband and ements in Ewhurst, Watlington, and other towns, which wife. Brownl. Robert Earl of Essex, and the said Frances then his wife, 46. B. Amend by fine did give unto William Gerard and Francis Mill, 43. Br. Entr. in and the heirs of the said William, to the use of Elizabeth Le per, 12. Sidney, daughter and heir of Sir Philip Sidney, knight, and the heirs of her body, and for default of such issue, to the use of the said lady Frances, and her heirs: Et quæ post mortem præd. Eliz. ad præfatam Franc. revertere debent per formam donationis præd. ac vigore Stat. &c. eo quod præd. Elizabetha obiit sine hæred. de corpore suo exeun.' ، Whereupon the said earl and countess counted accordingly; and the Viscount Lisle, defendant, pleaded in abatement of the writ, that the said countess, at the time of the death of the said Elizabeth, was covert of the plaintiff her now husband, so that the right of the said tenements, si quod, &c. to her husband and her did revert, and so by the said writ it ought to have been supposed; whereupon the demandants demurred in law; Demurrer. Post and it was adjudged for them, that the writ was sufficient, 329. 1 [1 a] And in this case these differences were observed; that if it were a formedon in descender, upon a descent to the wife, there the descent must be made in the writ to the Differences. B. wife alone, for the descent followeth the blood; and to 6. fol. Fac. 28. Faux Wast B. 6. 18. E. 3. 26. p. 8. concluded, that the right ought to descend to the husbands and their wives: And exception taken to it, and ordered by the court, that it should be amended, and the descent made only to the wives. On the other side, in a cessavit by the husband and the wife, or a writ of escheat, a consimili casu, or action of waste, because there is vested in them already either a signiory or reversion actually, and therefore the land holden, or the present estate to return, is to come into possession, therefore in those cases the reverter is to be made to them both, and 3. bre. 372. Reg. so are the books, 3 H. 6. 2. 20 E. 3, brief 372. Register 238. Nat. Br. 210. 3H. 6. 2. 20 Ε. 138 Nat. Br. 210. [2] 6 Е. 3. 26. p. 67. But now in a formedon in reverter, wherein nothing is already invested, but the right only returns, there the right may be laid to return either to the wife alone, or to the husband and wife, as Danby resolves plainly in 33 Н. 11 H. 4. 15. Br. 6. fo. 54. vide auxi quelque fois al Femme quelque fois Baroneme tant al baron que femme. 18 Η. 6. 20. 5 H. 5. 13. 38 Ε. 54. 18 Η. 6. 3. 16. and 18 E. 3.3. Report de R. Thorpe et ceo cas 35. 33 6. fo. 20. 3 H. 5. 13. 38 E. 3. 16. 18 d'un carbonel, breve fuit abate pur ceo que le Reverter Ε. 3. 3. fuit mis tant al Baron et Femme. Trns. Somerset. WALTER WIDLAKE VS. HARDING. Devise to A. for years, and that the said A. 'shall have my inheritance if the law will allow it,' gives a fee simple. (1.) Walter Widlake brought an action of trespass against Agnes Harding, for taking of a porringer at Basington. (1) No technical form of words is necessary in a will to pass a fee simple to the devisee, but the intention of the testator, if sufficiently de[2 a] Devise to A.for inheritance The defendant pleaded, that one John Francklin was seized of an house and land in Basington in fee-simple, holden in soccage, and leased it to the plaintiff for nine- years, and the ty-nine years, yielding seven shillings a year rent quarter- gives fee. ly, by even portions; and after by his will did devise the reversion to Agnes Harding, and her heirs, in fee-simple; and that for a quarter's rent behind, she distrained the porringer in the house devised; the plaintiff confessing the seisin of Francklin, and the lease to himself, and the death of John Francklin, conveyed the reversion to Edward Francklin by descent, and traversed the devise to the defendant, modo et forma. The jury find that John Francklin did devise the house and land to Agnes in these words, viz. ' Item, I do give and bequeath unto my cousin Agnes Harding, and her assigns, my now dwelling house, with all the lands belonging to it, for the term of ninetynine years: And my said cousin Agnes Harding shall Roll. 1. Abrid. have my inheritance, if the law will allow it.' And they 823. Godb. found the rent behind, and that she had distrained the Judgment. dish for the rent; and it was adjudged for Agnes Hard ing, that the devise gave the land to her and her heirs. clared, will be carried into effect, however defective in technical accuracy the language may be. The general rule is, indeed, that the heir at law of the testator shall not be disinherited by a will, without express words or a necessary implication to that effect; but a great variety of words and forms of expression have been considered as furnishing such necessary implication. The doctrine that the construction of the will is to be made, and the intention of the testator inferred from the whole scope and tenor of the instrument, and from a consideration of the reciprocal bearing of all its parts, renders every case upon wills, to a certain degree, an individual case, and not to be used as a precedent but with great caution. But a series of adjudged cases has, in some measure, settled the signification and import of certain words and expressions, so as to furnish something like a standard of interpretation. The words and phrases which have been considered as furnishing a necessary implication of the intention of the testator to dispose of a fee simple, without an express and formal limitation to the heirs of the devisee, may, perhaps, be classed as follows. 1st. The word estate, is said to be genus generalissimum, and descriptive, not only of the land devised, but also of the whole of the testator's interest in it. This word, therefore, when used in a devise, will carry both the land and inheritance, unless restrained by other expressions in the will. 1 Salk. 236, Countess of Bridgewater v. Duke of Bolton. 6 Mod. 106, S. C. 3Cranch 96, Lambert's lessee v. Paine. 2 Vezey, 48, Baylies v. Gale. 17 Mass. 68, Brown & al. v. Wood & ux. 1 T. R. 411, Br. Estate, 5. 835. Moor, 207. 2 Cro. 49. |