Doe on the demise of John Hurrell Luscombe v Yates, Hawker, and Mudge

Court of King’s Bench 
Hilary Term, 1822

Before (the judges sitting on the bench)

• Sir Charles Abbott , Chief Justice of the King’s Bench 
• Sir George Holroyd J. 
• Sir William Best J. 

Headnote

The parties to the case

• Doe  (the nominal Plaintiff); John Hurrell Luscombe (the Lessor of the Plaintiff )
• James Yates, John Hawker, and Zachary Mudge (the Defendants)

Counsel (the barristers representing the parties)

• Mr Sugden  on behalf of John Hurrell Luscombe, the Lessor of the Plaintiff
• Mr Preston  on behalf of James Yates, John Hawker, and Zachary Mudge, the Defendants

Summary of the facts

Ejectment  to recover certain messuages, lands, &c. in the county of Devon.
Plea general issue.

At the trial before Wood B.  at the Spring assizes for the county of Devon, 1819, a verdict was found for the lessor of the plaintiff, subject to the opinion of the Court on the following case.

John Luscombe, of Combe Royal, in the county of Devon, being seised in fee of the premises in question, by will devised unto three trustees therein mentioned and their heirs for ever, all that his capital messuage and tenement, barton lands and hereditaments, called Combe Royal, and other premises therein described, and the several parcels of land called Rents, enjoyed with the said last-mentioned tenement, with the rights, members, and appurtenances thereof, situate in West Alvington , and all that close or parcel of land called Pye Park, situate in the parish of Dodbrook , in the said county, with its appurtenances, and all other his freehold messuages, lands, tenements, and hereditaments whatsoever, situate in Devon or elsewhere, with their appurtenances: upon the trusts, and to and for the several uses, and under and subject to the powers, limitations, and provisoes thereinafter expressed of and concerning the same, that is to say, as for and concerning the capital mansion of the barton of Combe Royal aforesaid: upon trust to permit and suffer his niece, Margaret Manning, wife of Richard Manning, and his niece, Mary Creed, her sister, and Juliana Jutsham, (who then lived with him at Combe Royal) and the survivor of them, to hold the said mansion house and premises, and to inhabit the said mansion house, and to take the rents of the other premises as a recompence for their maintenance and education of his cousin, John Luscombe Manning, son of the said Margaret Manning, who he willed should live therewith, and be well provided for and maintained by them in all respects suitable to his condition, until he should attain the age of 21 years, or die; and from and after the determination of that estate, as to the said mansion house and premises to be enjoyed therewith in trust for the maintenance and education of the said John Luscombe Manning, as also for and concerning all the other parts and parcels of the said barton of Combe Royal, and all other the messuages, lands, &c. devised to the said trustees and their heirs, from and immediately after the testator’s decease to the use of the said trustees and their heirs in trust for his said cousin, John Luscombe Manning, until he should attain the age of 21 years, or die, whichever should first happen, and to the intent that the same might be set out at a yearly rent, and the profits accumulate for his benefit until he should attain that age, or die; and from and immediately after the said John Luscombe Manning should have attained the age of 21 years, then to the use and behoof of the said John Luscombe Manning and his assigns for his life, he taking and using the testator’s surname of Luscombe, as for and instead of his own surname, and from and after the forfeiture or other determination of that life estate, to the use of the said trustees and their heirs for the life of the said John Luscombe Manning, upon trust to preserve the contingent remainders, and from and immediately after the decease of the said John Luscombe Manning, to the use of his first and other sons, and their heirs male, taking and using the surname of Luscombe, as for and instead of his and their own surname, and in default of such issue, to the use of the 2^nd, 3^rd, and 4^th, and all and every other son and sons of the Margaret Manning, by the said Richard Manning, her then husband, and in default of such issue, to the use and behoof of the first and other sons of Margaret Manning, by any after taken husband, severally taking and using the surname of Luscombe, as for and instead of his and their own surname, and in default of such issue, to the use and behoof of the said trustees and their heirs, for the life of Margaret Manning upon trust for her sole benefit, and after her decease, then to the trustees during the life of Mary Creed, upon trust to pay the rents and profits to her for life, with similar limitations to her first and other sons, severally taking and using the surname of Luscombe instead of his and their own surname, and in default of such issue, then to the use of his cousin J.L. Ryan for life, he taking and using the surname of Luscombe, as for and instead of his own surname, with similar limitations to his first and other sons, and their heirs male severally taking and using the surname of Luscombe, as for his and their own surname.  There then came the following proviso —

“Provided always, and it is my express will, and I do hereby impower, direct, and appoint, that the heirs male of the several body and bodies of the said Margaret Manning and Mary Creed, and that the said John Luscombe Ryan, and the heirs male of his body, and each and every of them respectively claiming, or that shall claim under this my will, or any of the limitations therein contained, any right, estate, or title to the capital, messuage and tenement, barton lands and hereditaments, with the appurtenances therein before mentioned, called Combe Royal, in the parish of West Alvington aforesaid, or any other of the lands or hereditaments comprised in the first devise of this will [the other devises are omitted, as they are immaterial as to the question decided], not bearing the surname of Luscombe, shall when, and as soon as he or they, or any of them, shall be respectively in possession of the same premises, or any part thereof, under this my will, take upon him or themselves, the name of Luscombe, and use the same as for and instead of his and their own surname as aforesaid, and shall within three years, then next after, procure his and their own name or names to be altered and changed to my name of Luscombe, by act or acts of parliament, or some other effectual way for that purpose, and shall for ever after have use, and bear on all occasions the said surname of Luscombe for him and them, and the heirs male of his and their body and bodies as aforesaid, and in case any or either of the heirs male of the body of the said Margaret Manning or Mary Creed, or the said John Luscombe Ryan, or the heirs male of his body, or any or either of them respectively, who shall be in possession of the said capital messuage, barton lands and hereditaments, called Combe Royal, or other the lands and hereditaments hereby first devised, or any part thereof, by, under, or in virtue of this my will, shall not take and use my said surname, but shall neglect to get an act of parliament or some other authority as effectual for that purpose as aforesaid, for the space of three years next, after he, she, or they shall be in possession of the same as aforesaid, that then and in such case, the use and estate hereby given, devised or limited, of and in the same premises, to and for the benefit of such person or persons so neglecting to get, or not getting such act of parliament or other authority as aforesaid, shall cease and become void as if on such use or estate had been hereby given, devised, or limited, and the same premises and every part thereof shall immediately, upon and after the expiration of the said three years, go over to and descend upon, and vest in such person or persons as shall be next in remainder or reversion, or unto and upon whom the said premises are hereby settled or limited in the same manner, to all intents and purposes, as if such person or persons so neglecting to change his or their surname, or surnames, was, were, or had been dead without issue of his or their body or bodies, any thing herein contained to the contrary notwithstanding.  Upon this express condition, nevertheless, that such person so to take, do and shall also take my surname, and get an act of parliament or such other effectual authority, for so doing as aforesaid, otherwise the said capital messuage and barton of Combe Royal; and all the other premises hereby first devised, shall go over to the next person to whom the same are limited as aforesaid, who shall so take my surname as aforesaid.”

On the 8^th of June, 1776, the testator duly executed a codicil to his will, whereby he appointed his cousin, John Luscombe, to be a co-trustee with the three persons named in his will.  Shortly after executing the codicil, viz in July, 1776, the testator died.  John Luscombe was the survivor of the four trustees named in the will and codicil, and died many years since, leaving John Hurrell Luscombe, the lessor of the plaintiff, his eldest son and heir at law, him surviving.  Juliana Jutsham died in November, 1787, and Margaret Manning died on the 28^th October, 1817, leaving only one son, viz John Luscombe Manning, the devisee named in the will.  He was born the 28^th April, 1773, and on his coming of age in the year 1794, he entered and took possession of the premises in question, and continued in possession thereof until the 29^th of August, 1812, on which day he conveyed his interest to the two defendants, Yates and Hawker, for the benefit of his creditors.  The other defendant, Mudge, was tenant in possession under Yates and Hawker.  John Luscombe Manning, the devisee, named in the will, before he came of age, or was let into possession of the premises in question, took upon himself used and bore the surname of Luscombe, and from thenceforth had borne and used, and did still bear and use the surname of Luscombe, and no other.  But no act of parliament had ever been obtained by the said John Luscombe Manning, the devisee named in the will, authorizing him so to change his name, nor did he procure his majesty’s royal licence for that purpose until June 1813.  John Luscombe Manning, the devisee named in the will, had been married some years, and had a son born on or about the month of October 1806, who was still living.  Mary Creed, another of the devisees, intermarried many years ago with Richard Hawkins, and was still living.  The declaration in ejectment was served in 1819.

Arguments submitted by counsel

This case was argued at the sittings before Michaelmas term [1821], by Sugden for the lessor of the plaintiff, and Preston for the defendant; and the following questions were made:

First, whether the directions of the testator as to the surname of Luscombe had, as far as respected the devisee, John Luscombe Manning, been complied with by him.  Secondly, whether in the event of those directions not having been complied with by him, the estate limited to him had thereby become forfeited.  Thirdly, whether the estate limited to his first son had thereby become forfeited.  Fourthly, whether the surviving trustee was, by the adverse possession of John Luscombe Manning, and the defendants as claiming under him, ever since the year 1794, when John Luscombe Manning became of age and entered into possession of the premises, barred from recovering them by virtue of the statute of limitations: and if not, Fifthly, whether the surviving trustee was entitled to recover for the benefit of Mary Hawkins, formerly Creed.  It is unnecessary to report the arguments on these several points, inasmuch as the Court only pronounced judgment upon one.  The arguments upon that point, were in substance as follows:

For the plaintiff, it was contended, that the estate of John Luscombe Manning had been forfeited, in consequence of his not having complied with the terms of the proviso, by which it was required, “that any party to whom the estate shall come, shall, within three years next after, get and procure his name to be altered and changed to the name of Luscombe by act of parliament, or some other effectual way for that purpose.”  The terms of the proviso are not satisfied by the party’s having assumed the name before the estate vested in him.  In Leigh v Leigh (15 Ves. 100), Lord Eldon  says,

“An act of parliament giving a new name does not take away the former name; a legacy given by that name might be taken.  In most of the acts of parliament for this purpose, there is a special proviso to prevent the loss of the former name.  The king’s licence is nothing more than permission to take the name, and does not give it; a name, therefore, taken in that way is by voluntary assumption.”

The intention of the testator in this case was, that any person taking the estate under his will, and not having his name by descent, should be compelled to take it by act of parliament, and should retain no other surname.  If the party taking the estate has the name by descent, he can have no other surname; and there could be no reason, therefore, for altering it; but if he merely assumes the surname, he does not thereby lose the former surname, and, consequently, the name assumed is not his only surname, as required by the proviso.  The only effectual mode of getting rid of the first surname is by an act of parliament.

For the defendants it was contended, that the proviso only applied to a person who did not actually bear the surname of Luscombe at the time when the estate came to him.  In this case, J.L. Manning had taken upon himself and bore the name of Luscombe long before the estate vested in him.  It is true that he had acquired that surname by assumption.  It is shown, however, in Camden’s Remains concerning Britain, that surnames were originally acquired by that mode; and in p. 141 (1637 ed.) that learned author gives an instance where six of the grandchildren and four great-grandchildren, descended from William Belward, by two sons, all acquired different surnames by assumption.  The opinion of Lord Eldon, in the passage cited from Leigh v Leigh, and that of Sir Joseph Jekyll , in Barlow v Bateman (3 Peere Will. 64), are authorities to the same effect.  Now it never could have been intended by the testator, that he who was legally entitled to bear his name at the time when the estate descended to him, should obtain an act of parliament for the purpose of changing his name; for suppose that J.L. Manning, having taken the surname of Luscombe, married and had children, and then died, it might as well be contended, in that case, that when the estate descended upon any of those children, that they who never had any other surname would be bound to obtain an act of parliament, making it imperative upon them to keep the surname of Luscombe.  But the proviso does not absolutely require that there should be an act of parliament, but that it should be done by that means, or some other authority as effectual for that purpose.  Now the assumption of the testator’s surname is a mode equally effectual of acquiring the new surname as an act of parliament.

Judgment

And now the judgment of the Court was delivered by Chief Justice Abbott —

This case was argued in October last, before my Brothers Holroyd  and Best  and me.  Several points were urged in argument at the bar, but, as our judgment proceeds upon one only, it is not necessary to advert to the others.  It appears, by the case, that John Luscombe Manning took no estate in the lands devised until he came of age; and it is found, that before he came of age, and before he was let into possession, he took upon himself the surname of Luscombe, and has ever since borne and used the surname of Luscombe, and no other; so that he has undoubtedly, in this respect, complied with the words of the direction contained in the clause whereby the lands are given to him, and has in substance complied with the desire and intention of the testator, which was, that the person who enjoyed his lands should bear his name.  But it is said that he did not comply with the terms of the proviso, because, although he had taken and used the surname of Luscombe before he came to the estate, yet he did not, within three years after he took possession of the estate, take that name by virtue of an act of parliament, or other authority for that purpose, and that therefore the estate was, by that omission, for ever gone from him, and not from him alone, but also from his son, who would, upon the death of his father, have taken an estate tail under the will, if his father had, within three years, obtained an act of parliament, or other sufficient authority, but before we pronounce a judgment to this effect, under the circumstances that I have mentioned, it behoves us, in a case wherein the general intent of the testator, directing the course in which his land should be enjoyed, has been, as I have before observed, substantially complied with in regard to the name, to look carefully into the words of the proviso, and see who and what description of persons are contained within it.  And we are to consider, that this is a proviso introduced to defeat an estate, already vested, for the breach of a condition subsequent, and is in the nature of a forfeiture, and consequently that the words of it must, according to general rules and principles, be construed strictly, and effect must not be given to it, unless the supposed intention of the testator be expressed in plain and unambiguous language.  The proviso consists of two parts.  The description in the first part is, “the heirs male of the several bodies of Margaret Manning and of Mary Creed, and John L. Ryan, and the heirs male of his body not bearing the surname of Luscombe.”  These are the persons required to take that surname.  In the second part of the proviso, and which contains the devise over, the words “not bearing the surname of Luscombe,” do not again occur; but this second part must be taken with reference to the first; and in this part other words of the same import do occur, for the lands are to vest in the person who would be next entitled to take, if the person so neglecting to change his surname was or had been dead without issue of his body.  This then introduces the question, what sense and meaning ought, in the legal construction of this proviso, to be put upon the words “not bearing the surname of Luscombe:” whether a bearing of that name de facto be sufficient, or whether it is requisite that it should be borne by authority of an act of parliament, or other special authority? If the testator had clearly intended the bearing of this name by virtue of some particular authority, it would have been very easy to have expressed that intention.  He might have said, “not bearing the name by virtue of an act of parliament, or some other authority as effectual;” according to the expressions used in another part of the proviso: or he might in some way have referred to that part of the proviso, as by saying, “not bearing the name as hereinafter mentioned,” or something to that effect.  Whereas nothing of this kind occurs in this part of the will, but the words are general and simple, “not bearing the surname of Luscombe:” so that if any qualification is to be introduced, it can only be done by the addition of some other words, and such addition must be made by implication or intendment.  But we think we ought not to make this addition for two reasons; first, because the effect of this clause, as before observed, is to defeat and divest an estate actually vested; and secondly because such an implication or intendment is not necessary to effect the general object and intention of the testator.  For a name assumed by the voluntary act of a young man at his outset into life, adopted by all who know him, and by which he is constantly called, becomes, for all purposes that occur to my mind, as much and effectually his name as if he had obtained an act of parliament to confer it upon him.  We would not be understood to say that where a testator expressly requires a name to be taken by act of parliament, or other specified mode, any mode falling short of the specified mode may be substituted for it; or to say, that under this particular will a voluntary assumption of the name after the party became possessed of the estate, would be sufficient.  All we mean is this, that as the testator has annexed no express qualification to the words, bearing the surname of Luscombe, and the word surname is not used in this will to denote a name inherited from the father, and as a bearing de facto, answers every useful purpose that could be obtained under the authority of an act of parliament, a bearing de facto, though by voluntary assumption, is sufficient to satisfy the general and ordinary meaning of the words “bearing the surname;” and we cannot say with certainty that the testator intended any thing more, or meant to use the words in that qualified and restrained sense which must be given to them in order to pronounce that the condition has been broken, and that the estate shall pass over to another claimant.  For these reasons we, who heard the argument, are of opinion that a nonsuit should be entered.

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Orders of the court

Judgment of nonsuit.