Davies v Lowndes
Reference: Davies v Lowndes (1835) 1 Bing (NC) 597
- 2 Scott 71
- 1 Hodges 125
- 4 LJCP 214
- 131 ER 1247
Court of Common Pleas
27th & 28th April, 1835
Before (the judges sitting on the bench)
The parties to the case
- Thomas Davies and Elizabeth his wife (the Demandants)
- William Selby Lowndes (the Tenant)
Counsel (the barristers representing the parties)
- Talfourd Serjt., Sir W. Follett, and E.V. Williams, on behalf of Thomas Davies and Elizabeth his wife (the Demandants)
- The Attorney-General Sir John Campbell, Kelly, and R.V. Richards, on behalf of William Selby Lowndes (the Tenant)
Summary of the facts
Thomas Davies and Elizabeth his wife, by their attorney, demanded against William Selby Lowndes certain manors in the county of Buckingham, containing, divers, to wit, 5000 acres of arable land, &c., and divers, to wit, 500 messuages, 500 buildings, &c., with the rights, members and appurtenances to the said manors belonging; and also 50 other messuages, &c., with common of pasture thereunto belonging and appertaining, situate and being in the several parishes of Whaddon, Great Horwood, Little Horwood, Tottenhoe, Shenley, Great Lynford, Mursley, and Bletchley, and the rectory of Tottenhoe, with the appurtenances in the county of Buckingham, which the said Thomas Davies and Elizabeth claimed to be the right and inheritance of her the said Elizabeth — by writ of our lord the King of right; and thereupon said, that Thomas James Selby deceased, whose heir the said Elizabeth is, was seised of the tenements aforesaid, with the appurtenances in his demesne as of fee and right, in the time of peace, in the time of Lord George the Third late King of Great Britain, within sixty years next before the commencement of this suit, by taking the esplees thereof, to value of, &c.; and the said Thomas Davies and Elizabeth his wife further said, that the said Thomas James Selby died so seised of the tenements aforesaid with the appurtenances, without leaving any heir, save and except Erasmus Lloyd thereinafter mentioned; that the said Thomas James Selby was the son and heir of James Selby who died without any other issue of his body, and without having any heir save and except the said Thomas James Selby; that the said James Selby was the son and heir of James Selby, the grandfather of the said Thomas James Selby; which said last-mentioned James Selby also died without having any heir save and except the said first-mentioned James Selby, and which said James Selby secondly mentioned was the son and heir of Thomas Selby, by Mary his wife, theretofore Mary Lloyd; which said Thomas Selby died without other issue of his body, and without any other heir by the said Mary than the said James Selby, secondly above named: and the said Thomas Davies and Elizabeth his wife, further said, that the said Mary, the mother of the said James Selby secondly above named, in her lifetime and at the time of her death, was the daughter of Alban Lloyd and Mary his wife; that James Lloyd was the son and heir of the said Alban Lloyd by the said Mary his wife; and also the brother of the said Mary the wife of the said Thomas Selby; that Evan Lloyd was the son and heir of the said James Lloyd; that William Lloyd was the son and heir of the said Evan Lloyd; and that Erasmus Lloyd was the son of George Lloyd who was the son of the said James Lloyd; and which said Erasmus was the cousin and heir of the said William Lloyd; and that upon and at the time of the death of the said Thomas James Selby, who died so seised without issue as aforesaid, the right of the tenements aforesaid with the appurtenances descended from the said Thomas James Selby to the said Erasmus Lloyd as the cousin and heir as aforesaid of the said Thomas James Selby, who died so seised as aforesaid. That from the said Erasmus Lloyd, the right of the tenements aforesaid with the appurtenances, upon his death, descended to and upon John Lloyd as the son and heir of the said Erasmus Lloyd, and from the said John Lloyd the right of the said tenements with the appurtenances, upon his death descended to Catherine, Frances, and one other Mary as the daughters and co-heirs of the said John Lloyd; and from the said Catherine Lloyd who married Thomas Julian, upon her death all her part of and in the said right which came to her as co-heir as aforesaid descended to and upon the said Elizabeth, who was wife as aforesaid of the said Thomas Davies, as the daughter and heir of the said Catherine: and afterwards, upon the death of the said Frances all her part of and in the said right which came to her as aforesaid, descended to and upon the said last-mentioned Mary and Elizabeth as the sister and niece respectively, and co-heirs of the said Frances. And afterwards upon the death of the said last-mentioned Mary, all her part of and in the said right which came to her as aforesaid, descended to and upon the said Elizabeth as the niece and co-heir of the said last mentioned Mary, which said Elizabeth thereupon and before the commencement of this suit became and was entitled to the whole of the said tenements with the appurtenances as such heir and cousin of the said Thomas James Selby as aforesaid; and which said Thomas Davies and Elizabeth his wife now demand the same, and that such is their right they offer, &c.
Plea, general issue.
The cause was tried at bar.
Arguments submitted by counsel
The four knights, girt with their swords, and the other twelve recognitors having entered the jury-box, Sir John Campbell, after six or seven of them had been sworn, tendered the demi mark.
Talfourd objected that it ought to have been tendered before any of the recognitors had been sworn. The Court, however, ordered the trial to proceed, postponing the discussion of the objection to a future opportunity, and the rest of the recognitors were sworn.
E.V. Williams, on the part of the Demandants, having then opened the pleadings,
Sir John Campbell, on the part of the Tenant, claimed to hold the property under the will of Thomas James Selby, of Whaddon, in Buckinghamshire, who was an orphan at eleven years of age, and died on the 7th of December 1772, unmarried. The Demandant’s writ was sued out on the 6th of December 1832.
Thomas James Selby, by his will, bearing date 10th August 1768, and duly attested, among other matters, gave and devised as follows: —
“To my right and lawful heir at law (for the better finding out of whom I direct advertisements to be published immediately after my decease in some of the public papers), all my manors, lands, &c., in Buckinghamshire — [in the will particularly described] — to hold the aforesaid manors, &c., to my heir at law, his heirs, executors, administrators, or assigns for ever, subject and chargeable nevertheless with the payment of all my just debts, funeral charges, bonds, annuities, and all legacies hereinafter mentioned: that is to say — [among other legacies] — to my cousin Temperance Bedford I give 1000l.; to Mr Franklyn, who married Miss Elizabeth Wells, I give 1000l.; and to Miss Nelly Wells and Mrs Franklyn (late Catherine Wells) I give 100l. each; to Mrs Ann Kent, sister to Temperance Bedford before mentioned, 1000l. All which debts, together with all which legacies, funeral charges, and appointments, I do hereby order and direct to be paid by the said heir at law, his heir, executor, or assigns, within twelve months after my decease; but should it so happen that no heir at law is found, I then do hereby constitute and appoint William Lowndes Esq., of Winslow, in the county of Buckingham, and now Major in the Militia, my lawful heir, on condition he changes his name to Selby: and I give the estates, and all the manors before mentioned, together with all rights, hereditaments, members and appurtenances before mentioned, to the aforesaid William Lowndes, subject to and chargeable nevertheless with all the legacies, annuities, debts, funeral charges, and other charges before mentioned. Next I give and bequeath all my tenements or messuages, with their appurtenances thereto belonging, situate and being in St. Clement’s church-yard, in the parish of St. Clement’s Danes, London; and also all those my messuages, farms, lands and tenements, tithes and hereditaments, and premises, with every of their appurtenances, situate, lying, and being in the Isle of Ely, in the county of Cambridge; and also all that my manor of Hertingfordbury, in the county of Hertford, with all rights, members, manors, and appurtenances thereto belonging, together with all farms, lands, tenements, and hereditaments whatsoever, to the Rev. Mr John Lord, and to Mr Richard Filkes, their heirs, administrators, and assigns, in trust that they or the survivors of them, their heirs, executors, administrators, or assigns, do and shall, as soon as conveniently may be after my decease, sell and dispose thereof by public auction. — [The monies to be disposed of to the treasurers of three charities in the will named.] — Next I give to my dear cousin Temperance Bedford, of Husborne Crawley, daughter of the late Arthur Bedford, Minister of Sharnbrooke, before mentioned, 1000l. over and above what is before recited, this being part of my personal estate, together with all interest that is or shall become due; and which 1000l. is out at use, and lent by me to Sir Thomas Alston Bart., of Odell, in the county of Bedford: and I do also give and bequeath to the said Temperance Bedford the two pictures of my mother that hang up in my study; also the picture of my grandmother; also an iron-chest, now in the hands of Mr Hoare, my banker, in Fleet Street, containing my mother’s jewels and some other trifles; and also my mahogany chest of drawers in the dressing-room at Wandon, together with my mother’s picture and other family pictures; together with all notes, bonds, monies, and whatsoever else is contained in the same. I also give to the aforesaid Temperance Bedford, her heirs, executors, administrators, and assigns for ever, after the decease of my dearly beloved Mrs Elizabeth Hone, commonly called or known by the name of Vane — [to whom the Wavendon estate was devised for life] — all that my dwelling house at Wavendon, together with all messuages, farms, lands, tenements, hereditaments, and premises, with their appurtenances, situate, lying, and being at Wavendon, otherwise Wandon aforesaid, Apsley Guise, Husborne Crawley, Heath, and Reach, in the several counties of Buckingham and Bedford. I do also give and bequeath to the said Temperance Bedford the perpetual advowson and disposal of the living or rectory of Wavendon aforesaid for ever, together with the tithes of all sorts thereof.”
The testator appointed John Lord, Richard Filkes, and Mrs Hone his executors and executrix.
The testator’s father, James Selby, married Mary Alston, daughter of Sir Rowland Alston, of Odell in Bedfordshire.
The testator’s grandfather, James Selby, married Margaret Wells, daughter of John Wells of Wavendon.
The testator’s great grandfather was unknown.
Temperance Bedford and Ann Kent, named in the will, were the daughters of the testator’s first cousin Temperance Alston, who married Arthur Bedford.
Ellen Wells, Catherine Franklyn, and Elizabeth Franklyn, were the grand-daughters and co-heiresses of Lionel Wells, the brother of Margaret Wells, the testator’s father’s mother.
Such being the will and the state of the testator’s family,
The Attorney-General contended,
1st — That the demandant’s claim was too late. The legacies were to be paid within twelve months: as they were charged on the realty they could not be paid till the estate was vested in a permanent owner, who should have the power to mortgage for the purpose, and then, as the testator could not have proposed that the legatees should be kept out of their money for sixty years, he must have intended that Mr Lowndes should become the permanent owner if the undiscovered heir of the Selbys did not appear within a twelvemonth.
2ndly — Mrs Davies was not even heir-at-law; for she only claimed from the testator’s paternal great grandmother while there were still heirs existing on the part of the paternal grandmother: and Blackstone (2 Bl. Comm. 238.), disputes all the authorities which hold that the blood of the paternal great grandmother is entitled to the preference. Clere v Brook (Plowd. 444–449); Co. Lit. 12.; Lord Bacon’s Maxims of the Law, 16.; Hale’s History of the Com. Law. 122.; Bac. Abr. Descent, B.
3rdly — Looking to the circumstance that the testator had left legacies to relations on the side of his own mother, and to the co-heiresses of his father’s mother, he could not be ignorant that there were persons alive who would have answered the description of his heirs, and therefore by the devise to his right heir he must have meant an heir of the blood of the Selbys.
In Support of this position, the Attorney-General read the opinion of Lord Mansfield and the Court of King’s Bench delivered in Easter term 1780, upon the trial at bar, of an ejectment brought by the descendants of Lionel Wells, brother of Margaret Wells, the testator’s father’s mother, to recover the testator’s London property; and the judgment of Lord Loughborough and the Court of Common Pleas delivered in Trinity term 1782 upon a special verdict found at the Lent assizes 1781, upon the trial of an ejectment brought by the same parties to recover the testator’s Buckinghamshire property.
4thly — He relied on a fine with proclamations levied by the devisee William Lowndes in Trinity term 1784 of the whole estate.
The will of Thomas James Selby having been read,
Mr R.L. Appleyard proved that the tenant was the son of the devisee, William Lowndes, named in the will, who died in 1813, and was succeeded in the possession of the estate by the tenant.
The court rolls of the manor of Whaddon were then put in, from which it appeared, that from the year 1774 to 1781 the devisee had held courts as lord of the manor, in the name of William Lowndes; that no court was holden from 1781 to 1783; that, in November 1783, a court was holden in the name of William Lowndes Selby; in 1784, in the name of William Selby, formerly William Lowndes; and from 1784 till the devisee’s death, in the name of William Selby.
The next evidence adduced, was a decree in Chancery of the 23rd of April 1779, upon a bill filed in Easter term 1773, by Mrs Hone, the executrix of T.J. Selby’s will, against William Lowndes and the several persons who had then set up claims; and upon a bill filed in October 1773 by William Lowndes against Samuel Thorne, Margaret Wells, and all others, who up to that time had made any claim to the estates. By this decree, the bills were ordered to be taken pro confesso against certain of the Defendants, who did not appear; to be retained for twelve months; and that, in the meantime, the claimants under Margaret Wells should be at liberty to bring an ejectment to recover possession of the premises.
By a final decree in these two causes, made on the 28th of March 1783, which operated upon all the persons who had then set up claims, the Court —
“… declared the will of the testator, Thomas James Selby, well proved, and that the same ought to be established, and the trusts thereof performed and carried into execution, which was thereby ordered accordingly; and it was further ordered, that the Master should compute interest on such of the testator’s debts as carried interest, and on the legacies, from the time to which interest was computed thereon by the Master’s report, and that the same should be raised by mortgage or sale of the testator’s estate, called Whaddon Chase, Whaddon Park, and other lands subjected to the payment thereof by the testator’s will, or of a sufficient part thereof, with the approbation of the Master, and as he should direct; and that all proper parties should join in such mortgage or sale as the Master should direct; and it was ordered, that 22,658l. 18s. Bank 3 per Cent. Annuities, standing in the name of the Accountant General, in trust in the said causes, under the title of ‘Hone and Medcroft and Lowndes and Wells’; which had arisen from the rents and profits of the manor, park, tithes, and other estates at Whaddon, and were paid into the bank by the said William Lowndes Selby, the receiver, should be transferred to the said William Lowndes Selby, the parties having agreed to settle the proportions thereof belonging to them respectively between themselves: the Court then declared, that the manor of Whaddon and Nash, and other the premises devised by the said will to William Lowndes Selby, were to be considered as belonging to the said William Lowndes Selby; and ordered, that he should be let into the possession thereof, and that all the title-deeds and writings relating to the said estates should be also delivered to him: the Court further declared, that the devises in the said testator’s will of the several freehold and leasehold estates thereby given to charities, were void devises, as being within the meaning of the act of parliament of the 9 G. 2.; that such leasehold estates should fall into and constitute part of the general residue of the said testator’s personal estate; that the title-deeds and writings of the said testator’s estates, lying in St. Clement’s Church Yard in the county of Middlesex, and at Hertingfordbury in the county of Hertford, should be delivered to the Defendant, Sir Rowland Alston, who had recovered possession thereof; and that the title-deeds and writings of the estates, purchased by the testator after the making his will, should be delivered to the Defendants Ellen Wells and Henrietta Franklyn, and Elizabeth Franklyn, who had recovered the possession thereof.”
The Demandants’ counsel objected to the reception of these decrees, on the ground that the Demandants were neither parties nor privies to them, but claimed by title paramount; that the decrees were res inter alios gestæ; and, for aught that appeared to the contrary, might have passed by collusion for the purpose of obstructing future claims.
The Attorney-General —
The decrees are not offered as binding on the Demandants, but merely to show how the tenant came into possession.
William Lowndes did not come into possession under the decrees, but appears to have been possession as receiver some years before.
Tindal C.J. —
I see no objection to the decrees being admitted as evidence of the character in which he held the premises: they are not conclusive as to the right. With respect to the objection that they are res inter alios gestæ, that is not conclusive against their admissibility; for in actions against the sheriff for an escape, and on other occasions, it is usual to give in evidence judgments against third persons, to show the character in which the plaintiff claims, and the amount of damage he has sustained.
The decrees having been read, several deeds of purchase were put in, bearing date from 1653 to 1763, by which various portions of the property in question had been conveyed to the testator, his father, and grandfather respectively; also, the will of his father, who died in 1723. Proof was then given that Temperance Bedford was a cousin of Sir Rowland Alston, whose sister was married to the testator’s father; and the tenant’s case was closed by putting in the fine with proclamations, levied by his father as William Selby, in Trinity term 1784, of all the property devised to him by the testator.
On the part of the Demandants,
Talfourd, in answer to the first objection, contended that William Lowndes took the estate on condition only, and held it as a trustee for the right heir until he could be found; and as the estate was devised subject to the charge for legacies, the right heir, when found, could not have set aside any incumbrance created for that purpose by the provisional owner, so that no delay was necessary for the payment of legacies.
“Where there shall be a failure of male paternal ancestors of the person from whom the descent is to be traced, and their descendants, the mother of his more remote male paternal ancestor, or her descendants, shall be the heir or heirs of such person, in preference to the mother of a less remote male paternal ancestor, or her descendants; and where there shall be a failure of male maternal ancestors of such person, and their descendants, the mother of his more remote male maternal ancestor, and her descendants, shall be the heir or heirs of such person, in preference to the mother of a less remote male maternal ancestor, and her descendants.”
In answer to the third objection, after observing that the decisions of Lord Mansfield and Lord Loughborough on the will had never been reported, he contended that the devise to the testator’s right heir being express and unqualified, the effect of those words could not be got rid of by interpolating the words “of the blood of the Selbys”, upon grounds of mere conjecture.
As to the fine, if the conusor took the property only on the condition of holding it till the right heir should be found, it did not operate adversely against that heir for whom the conusor was in fact trustee. At all events, a fine with proclamations derives its operation and effect from the supposed notice to all the world. But here the conusor, after holding the estate for some years in the name of Lowndes, levied the fine in the name of Selby; there was, therefore, an entire deficiency of notice as to any fine levied by the claimant William Lowndes; and the fine, as legally fraudulent, must be esteemed void. [Tindal C.J. The lands are properly described.] This was admitted.
The Attorney-General now suggesting that, if the Court decided in favour of the Tenant upon the construction of the will, or the effect of the fine, it would be superfluous to go into the Demandant’s pedigree,
Tindal C.J. said —
I think it unnecessary this case should go any farther: assuming the pedigree proved, we should, in point of law, decide against the Demandant.
However, upon Talfourd’s tendering a bill of exceptions, the Court directed him to proceed with the proof of his clients’ pedigree.
The Demandants’ pedigree was then clearly traced up to James Lloyd, of Monington, in the county of Pembroke, who died about 1670. It was proved that,
James Lloyd’s sister, Mary Lloyd, married a Thomas Selby, of Nevern, in Pembrokeshire.
It was alleged that the name of the testator’s great grandfather was Thomas Selby; and,
In order to show that the testator’s grandfather, James Selby, was son of the Thomas Selby, who had married Mary Lloyd, the Demandants called several old witnesses, and produced an old pedigree of the Lloyd family, but relied mainly on the will of James Lloyd, bearing date the 3rd of September 1669, in which the first bequest was “to James Selby, of Wavenden, in the countie of Buckingham, the son and only issue of Thomas Selby, of Nevern, in this countie, by my sister Mary, his deceased wife, the sum of fortie pounds.” He then bequeathed fourpence to the cathedral of St. David’s, twopence to the church of Monington, twopence to the poor of the parish; his messuage and lands in Dogmells to his son and heir Evan, charged with a payment to his two brothers of eight score pounds, being four score pounds a year to each; to his wife, during her widowhood, the moiety of his messuages and lands in Monington; and all his personal estate to his son Evan, who was appointed executor to pay debts and legacies.
The inventory of James Lloyd’s chattels was also put in, the whole of which amounted to no more than 38l.
James Lloyd was an attorney; James Selby, the legatee, an attorney; and his son James, a serjeant-at-law, who acquired a great fortune in his profession, which he had invested in the purchase of part of the property now in dispute.
The will was brought from the registry of the Consistory Court of Carmarthen: but the documents there had been loosely kept; several persons besides the registrar had had access to the muniment room; and it did not appear where or by whom the will was first discovered. It appeared to have come first into notice only about four years ago, notwithstanding some search had been made, without effect, in the same office, for wills to assist claimants to the Selby estate as long as fifteen years ago. The ancient official index referred to the will of a James Lloyd, of Monington, who died in 1670.
In the complexion of the paper and ink, and the general character of the handwriting, the will had the appearance of a document of the seventeenth century; but several of the letters, and even some entire words, were in the characters of the present day.
The Attorney-General contended, chiefly from its internal evidence, that the instrument was a forgery, and, if so, that the Demandants’ pedigree fell to the ground.
He suggested, that the original will of James Lloyd might have been abstracted from the registry, copied in fac simile, with the interpolation of the remarkable clause describing James Selby, and that copy might then have been put in the place of the original: that the description of James Selby was too particular to have occurred to any one except for the purpose of this cause; and the legacy to him bore no proportion to the other dispositions in the will.
Chief Justice Tindal —
Gentlemen of the Grand Assize — You are summoned this day, upon this writ of right, to determine, by your recognition, whether William Selby Lowndes, who is the tenant of the land in dispute, the estate in the county of Buckingham, hath more mere right to the property which is the subject-matter of dispute, than the Demandants, John Davies, and Elizabeth his wife, in right of his wife, have to the same tenements.
The Demandant claims under a pedigree, by which she makes herself out, or rather requires you to find her to be, the heir-at-law of Thomas James Selby, the person who was last seised of this estate before any dispute arose. On the other side, the tenant, William Lowndes, claims that, as son and heir of his father, who was the devisee in the will of Thomas James Selby, he has a right to the possession. And, therefore, two questions of different kinds will come before you, one of which will be a question of fact for your consideration; another will be a question of law for the consideration of the Court; on which, I doubt not, you will take such directions as they shall give you before you come to a decision as to which of the parties has the better right to the tenements in question.
There is no doubt that Thomas James Selby was seised of the property in question, and that he died seised on the 7th of December 1772. The period of time which the law allows during which writs of right are capable of being submitted to a court of justice is sixty years; and it appears in evidence that the writ of right in question was sued out of the proper office on the 6th of December 1832, that is, one day short of the limited period of time which the law has prescribed. First of all, then, has Mrs Davies made herself out to your satisfaction as the heir-at-law of Thomas James Selby, the person last seised? — for it is needless to observe, if she has not made herself out by satisfactory evidence as the representative of Thomas James Selby, she and her husband can have no right whatever to dispute the possession with Mr Lowndes; he and his father having had possession for a very long period of time, unless the party who claims to disturb and oust him from the possession can show a legal title as representative of the person last seised, they are to be considered as perfect strangers to this possession; and upon that ground your recognition should be found for the tenant.
But, on the other hand, supposing Mrs Davies does make herself out as the heir-at-law, through the regular channel, to Thomas James Selby, the person last seised, if he, during the course of his life, executed a will, by which he devised his property and put it in a different channel, and the present tenant lightly claims under the devise in this will, then, although the pedigree is amply and completely proved to your satisfaction, the will comes in and interrupts the course of succession.
There is, also, a collateral point which is urged on the part of the tenant of the land, set up as an answer to this action — that whether his father was or was not described so as to take under the devise, he was in possession in the year 1784, claiming right and title to this land for his own enjoyment and use; that he then levied a fine with proclamations; and that five years having elapsed without any claim on the part of any stranger, though he may not have had the right originally, he has made that defective title a good one by the legal operation of that fine. Upon this head, the only question for you will be a matter of fact — how and in what character he claimed the land at the time; whether he claimed it acting for other persons in a subordinate capacity; or whether he claimed an absolute right for himself, insisting that the land was his own: that will be the question of fact for you: then the law will follow, which I shall, with the assistance of my brethren, endeavour to deal with.
Gentlemen, let us come now to the first point of the case, which is a pure question of fact for your consideration — whether Elisabeth, the wife of Thomas Davies, has or has not proved that she is the right heir-at-law of Thomas James Selby, who died in 1772. (The learned Chief Justice, after stating and commenting on the whole of the evidence in support of the Demandants’ pedigree, proceeded, —) If she has failed in her pedigree, then, upon that ground, you are bound to find your recognition in favour of the tenant; but if she has not failed in her pedigree, it becomes my duty to state to you what, in point of law, I consider to be the effect of the devise and the effect of the fine which has been levied on the part of the tenant.
The will in question is that of Thomas James Selby, which is dated in 1768. He died in 1772. The question will be, what estate under this will, in the judgment of this Court, did William Lowndes, Esq., of Winslow, take on the death of the testator? And it is the opinion, not only of myself, but of the other learned Judges by whom I am assisted, that, under the will, the devise was one which, under the circumstances that have happened, and the failure of any heir of the blood of the Selbys, vested the fee simple in William Lowndes, who was the devisee. It appears that, at the time of making this will, the testator had outlived for a very long period both his father and his mother. His father died a serjeant, and, when he died, the testator was little above four years old: his mother died when he was about eleven. Therefore he had not any great opportunities, or perhaps no opportunity, of enquiring into the state of his family. There were some relations of the family living in the neighbourhood; for we have evidence, on the part of the Demandant, of the serjeant having had both a brother and a sister: the sister had married. But it is impossible to read this will, and not to see that he had not, within his own knowledge at the time, any heir of the name of his father’s family. That being the state of the case, he begins, after some directions about this will, with this devise: —
“Next I give and devise to my right and lawful heir-at-law (for the better finding out of whom I direct advertisements to be published immediately after my decease in some of the public papers), all my manor of Whaddon and Nash.”
The first question, therefore, is, what is the meaning of the testator in saying “my right and lawful heir?” If these words are taken in their general and unlimited sense, they would denote any heir whatever, either an heir ex parte paternâ or an heir ex parte maternâ: however remote they might be, it would include any one at whatever distance, so long as they could make out any consanguinity. But these words, though so general in the first devise, we think manifestly cut down and restrained from their general and large sense, to a more particular sense, and to denote an heir of the blood of the Selbys. This, we think, is the manifest intention of the testator. In the first place, it would have been a very unnecessary thing, if he had intended to include within the words of this devise heirs of any kind, however remote they might be, to make a devise at all, because the law would have carried the property to his heir, however distant the heir might be. And when he has said that, he puts in a clause which shows that he must have some desire that this heir should have the name of Selby:
“[S]hould it so happen that no heir-at-law is found, I then do hereby constitute and appoint William Lowndes Esq., of Winslow, in the county of Buckingham, and now major in the militia, my lawful heir, on condition he changes his name to Selby.”
These words bring one’s mind very far to the conclusion, that the anxiety of the testator was to discover by those advertisements a person of the name and blood of Selby who should be his heir; because, in the failure of efforts to discover such a person, he makes and constitutes a stranger to his family his lawful heir, he taking the name of Selby, the name of the testator.
But the matter does not rest there; for you also find, to support the inference which may be fairly supposed to arise from this form of bequest, he actually knows that he has persons who would be his heir in the large and unlimited sense, and yet he passes them by, merely giving them a legacy; for in one part of his will he gives a legacy to his cousin Temperance Bedford; and afterwards he leaves to the same person an advowson in the county of Bucks. In endeavouring, therefore, to discover what the mind of the testator was, we find that he gives, in the largest and most general way, his estate of Whaddon to his lawful and right heir: and we find afterwards, that there is a person named in the will who must have been his heir-at-law if no nearer could be found; and it seems, from leaving her a legacy, that he did not mean to include heirs ex parte maternâ as well as heirs ex parte paternâ; that she is not one of that class or character of heirs which he meant, but of a larger description; therefore, I should say, upon that ground, it is clear that he meant heirs ex parte paternâ.
There are other reasons, one of which has struck the mind of all of us: there is something very singular in the terms of this devise to Mr Lowndes. It is not simply, if any heir cannot be found, he devises to him, but it appears that he designates and appoints him in a very unusual way his heir-at-law. He says, if you cannot find one of the description I am searching for, then I do hereby constitute and appoint William Lowndes, Esq., to be my lawful heir: making him, as it were, as the old Roman law did, an adopted heir; a person standing in loco hæredis, who was not to be ousted till a person having a greater title than himself appeared. And then, when we add to that, there are certain duties to be performed by this heir whom he so constituted, namely, the payment of legacies, the payment of annuities, and the payment of other charges, which charges he makes upon the estate, and which estate it becomes, therefore, essentially necessary that the devisee shall take, in order that he may raise those charges either by mortgage or by sale of that estate, how can we suppose that he meant this to be ambulatory for sixty years; so that, if, during that time, no such heirs appeared, the objects of his bounty would be dead three or four times over? Looking, therefore, at his indications of intention to cut down these words to a more limited and restrained sense, we hold that, upon this will, the heir-at-law to whom he first meant to refer, was an heir of the blood of the Selbys; and no such heir having been found, and this Demandant not being such an heir, the devise to William Lowndes was a good and valid devise.
I shall not enter into many of the other points; it becomes unnecessary to decide them; as, whether it was necessary, within a year, to make the claim. Nor shall I enter into that very learned question, which has created doubts in the minds of some of the ablest lawyers which this country has known from that time down to the present; I mean as to the priority of right of succession between No 10. and No 11., discussed in the second volume of Blackstone.
There is only one point remaining. Upon the evidence, it appears that, for the first two or three years after the death of the testator, there were some proceedings in Chancery; that in the course of these proceedings, Mr Lowndes was appointed a receiver of the property; and that whilst he remained receiver, he held the courts by his own name of William Lowndes. I do not think he could have done otherwise: he was acting the part of a public officer of the Court of Chancery. After that, a final decree was made; and from that time the court rolls show, first, an alteration by the addition of Selby to his name, and afterwards by his dropping the name of Lowndes, and taking that of Selby alone. From the decree he was in the receipt of the rents and profits of the estate; and, therefore, the only question of fact is, whether he was receiving those rents and profits at that time, as actually in the dominion of the estate, holding in his own right, and asserting the freehold to be his own; or whether he went on receiving as a person afterwards to be accountable, in the nature of a trustee, to serve other persons. I see no evidence of the latter proposition. It appears to me, that he received that which he conceived and claimed to be his own, and received it in his own name, and appropriated it to his own right. And if that be the case, then this fine, which was levied by him, is a good fine in a court of law; for if he had the freehold in him (whether by right or wrong) when he levied that fine, it was a good fine. If he was a trustee, and had a trust for other persons, I am not prepared to say that that would not be a good fine in a court of law, though a court of equity might hold him still responsible for the persons to whom he was trustee. But if you are satisfied he was in the pernancy of the profits, claiming them as his own, that was, in a court of law, clearly a valid fine; after the proclamations, and five years non-claim, that was a bar to all the world; and, therefore, that alone, without reference to any other point, would give a verdict for the tenant.
It has been more than once asked by a learned gentleman of the grand assize, whether the name has been changed in the way which the law prescribes. In this will the condition is, that Mr Lowndes changes his name to Selby. It appears, that at first he retained the name of Lowndes, while the receivership was going on; and that afterwards he took the name of Selby in addition to the other; and I am not prepared to say that that was not changing his name: but at all events he afterwards changed it entirely, and left out the name of Lowndes. There is nothing in the will that purports that the condition is to be executed in a very limited or precise time; therefore, though he took it a little later, and though in some particular acts he might use the other name, it would not at all interfere with the general act of changing his name. And there is no necessity for any application for a royal sign manual to change the name. It is a mode which persons often have recourse to, because it gives a greater sanction to it, and makes it more notorious; but a man may, if he pleases, and it is not for any fraudulent purpose, take a name and work his way in the world with his new name as well as he can. Therefore it does not appear to me that that is an objection which can, upon the present occasion, succeed. It is an objection which is quite out of court if the fine has been levied, or if the Demandant has failed in her pedigree; and, in my judgment, and that of my learned brothers, it is equally out of court if this will is one, as we think it is, which intended only to benefit, first, the heir of the blood of the Selbys, and, failing in that, the testator’s constituted and adopted heir.
Such, then, is the case, and therefore, whatever may be the opinion which you may form upon the pedigree, I have no doubt that, when you come to a conclusion upon it, you will still hold that the law we are endeavouring to lay down is the correct law, and that your recognition must be for the tenant.
Talfourd tendered a bill of exceptions to the construction put on the will, and to the ruling as to the effect of the fine; which being accepted, the recognitors were requested to say, first, whether they found that the Demandant had established her pedigree; but, after retiring for half an hour, they returned, finding a verdict generally for the tenant; and declined any separate finding as to the Demandant’s pedigree.
It seemed to be agreed both by the counsel and the Court that in a writ of right the jury could not find a special verdict.
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Orders of the court
Verdict for the tenant.