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1839.

SAUNDERSON

V.

PIPER.

cording to the authorities, figures are not of the same authority as words in the body of a bill, except in cases where the margin does not contradict, but is only an index to the body, as in Rex v. Elliott. I am of opinion that the words in the body must be taken as containing the amount of the bill to be paid.

Judgment for 200%.

May 1.

J. STERT and Another, Executrix and Executor of J. BURN, deceased, v. G. Platel.

Devise to 4. THIS

H. for life;
remainder to

R. H. for life,
and to his first

and other
sons in tail;
and for de-

HIS was an action of assumpsit brought by the
Plaintiffs as executrix and executor of Jane Burn

deceased, to recover from the Defendant the sum of 120l. alleged to have become due from him to her in her lifetime, for the use and occupation of two messuages with the appurtenances at Peterborough, in the fault of issue county of Northampton. The Defendant pleaded the general issue. A verdict was found for the Plaintiffs with 1207. damages, subject to the opinion of the Court the following case: —

to A. D. H.

for life; re-
mainder to

his first and
other sons in
tail; and in
default of
such issue to

"such person
bearing the
surname of
H. as shall

upon

Eleanor Hake, being seized in fee of the messuages for the use and occupation of which this action was brought, on the first of May 1784, by her will, duly executed for passing real estates, devised the messuages to Abraham Hake for life; with remainder to trustees to preserve contingent remainders; with remainder to relation near- Richard Hake, son of Abraham, for life; with remainder to trustees to preserve contingent remainders; remainder

be the male

est in blood

to the said

R. H., and

his heirs for ever." Held, that the ultimate remainder vested in interest upon the death of testatrix.

9 Bears 372

11 Bear 994.

12 Sim 30

24 of & 3 Delu

to the first and other sons of the said Richard, successively in tail male; with remainder in default of such issue to Abraham David Hake, another son of the said Abraham, for life; with remainder to trustees to preserve contingent remainders; with remainder to the first and other sons of Abraham David, successively in tail male. The will then proceeded as follows: "And in default of such issue, I give and devise the same premises unto such person bearing the surname of Hake, as shall be the male relation nearest in blood to the said Richard Hake, and to his heirs for ever."

Eleanor Hake died in the year 1784, without having revoked or altered her will; and Abraham Hake entered into the possession of the premises: he died so possessed of them in the year 1792, leaving the said Richard and Abraham David, his two sons, him surviving; and on his death the premises came into the possession of the said Richard, who died in the year 1813, without having had issue; Abraham David then entered into possession of the premises, and continued so in possession or in the receipt of the rents and profits thereof until his death.

Several years previous to the death of the said Abraham David, the Defendant became his tenant of the premises, and continued to be such tenant up to and at the time of his, Abraham David's, death, and paid him rent for the same, as such tenant. After the death of Abraham David, the Defendant continued to occupy the premises up to and at the time this action was brought, and the sum of 120l. was then due from him for the rent thereof. In the year 1826, Abraham David, so then being in possession or in the receipt of the rents and profits of the premises, by his will duly executed for passing real estates, devised the same to the said Jane Burn in fee. Abraham David died on the 28th of September 1833 without having had

1839.

STERT

บ.

PLATEL.

1839.

STERT

บ.

PLATEL

issue, leaving the said Jane him surviving; and the Defendant having refused to pay the rent which had accrued due from him for the occupation of the premises after the death of the said Abraham David, to Jane Burn in her lifetime, or to the Plaintiffs executrix and executor, or to either of them, since her death, this action was brought.

The question for the opinion of the Court was, whether the premises passed to Jane Burn by the will of Abraham David: if the Court should be of opinion that the premises did so pass, then the verdict was to stand; but if otherwise, then a nonsuit was to be entered.

N. R. Clarke for the Plaintiff. The question is at what period the ultimate remainder in fee vested. If it vested before the death of Ab. Dav. Hake, the Plaintiffs are entitled to recover; if it did not vest before his death, the Plaintiffs' title fails. It vested at the death of the testatrix Eleanor, for a remainder is never construed as contingent after the earliest period at which it can vest. Ives v. Legg (a), per Bayley J. in Doe v. Maxey (b), per Bayley J. and Dampier J. in Driver v. Frank (c), Doe v. Pratt (d), Cholmondely v. Clinton. (e) It does not appear that the testatrix had any particular class of persons in view; and the expression "such person as shall be the nearest in blood," unaided by any specification of time, does not imply a more distant future than the death of the testatrix; Doe v. Law son (g), Doe v. Maxey, Spinks v. Lewis (h), Holloway v. Holloway (i), Pearce v. Vincent. (k)

(a) In note to Doe d. Com-
berbach v. Perryn, 3 T. R.
488.

(b) 12 East, 589.
(c) 3 M. & S. 25.

(d) 5 B. & Adol. 731.

(e) 2 Jac. & Walk. 1. 2 B. & Ald. 625.

(g) 3 East, 278.
(h) 3 Bro. Ch. C. 355.
(i) 5 Ves. 399.
(k) 2 New Cases ,328.

Lee, for the Defendant. The rule as to vesting of remainders, must be taken subject to the intention of the testator. Per Bayley J. and Sir T. Plumer, in Cholmondely v. Clinton. And here there is a circumstance which shews it to have been the intention of the testatrix, that the remainder should not vest till the death of Abraham David Hake without issue: for she has given him and his brother and father estates in succession; and if she had intended that either of them should take also the ultimate remainder, she would so have expressed herself, instead of leaving it to the male relation nearest in blood. The gift is also to the person who shall be nearest in blood; by that expression she meant some person not then in her view; while Abraham David, his brother and father, were clearly before her. Phillips v. Deakin (a) shews that the rule is not inflexible, but must be controlled by the intention of the testator: and in Pyott v. Pyott (b), where Lord Hardwicke recognised Bon v. Smith (c), but disputed its authority, Marsh v. Marsh (d), Jones v. Colbeck (e), Miller v. Eaton (g), Bird v. Wood (h), Briden v. Hewlett (i), and Butler v. Bushnell (k), general ultimate dispositions of property have, where the intention of the testator appeared to require it, been held to vest, not at the death of the testator, but after the determination of some intermediate estate devised by him.

In Doe v. Maxey, it was questionable whether there was any gift: some of the judges thought the old reversion vested in the heir. In Driver v. Frank, Lord Ellenborough thought the intention of the testator, if a lawful one, must prevail. Doe v. Lawson was the case

(a) 1 M. & S. 744.

1839.

STERT

v.

PLATEL.

(b) 1 Ves. 336.

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(g) Coop. Ch. Cas. 272.
(h) 2 Sim. & Stu. 400.
(i) 2 Mylne & K. 90.
(k) 3 Mylne & K. 232.

(e) 8 Ves. jun. 38.

1839.

STERT

V.

PLATEL.

of a gift to the next of kin in such proportions as they would be entitled to according to the statute of distributions, the provisions of which refer to the time of the testator's death. The same observation applies to Spinks v. Lewis. Holloway v. Holloway was a case of gift of personal estate to heirs, which Tindal C. J. thought the same as a gift to next of kin: and in Pearce v. Vincent, there was a precise reference to the time of the testator's death. On the other hand, in Leigh v. Leigh (a), Lawrence J. said, that even the absurdities of testators had been looked to, to ascertain their meaning.

N. R. Clarke. It is not contended on behalf of the Plaintiffs that the rule is inflexible; but there is nothing here to shew an intention that the remainder should not vest at the death of the testatrix; and in Driver v. Frank, Dampier J. says, "If a testator expresses an intention precisely, in clear and positive terms, and there is no legal objection to it, no inconvenience arising from a literal adherence to such intention, so expressed, is to be regarded. The case is very different where the intention is not fully expressed, but is to be collected and inferred as only probable. In that case the probability, from which the intention is to be inferred, may be outweighed by the improbability, that the testator could intend to make a distribution of his property, attended with such inconveniences as would follow from carrying into execution his supposed intention." The previous devise indicates nothing decisive, for it is common to give the same person a particular estate, and then a remainder. O'Keefe v. Jones. (b) In Doe v. Lawson, Grose J. said, "Nothing is more common than that an estate for life should be given to one to whom a remainder over in fee is after

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