Pyot v Pyot

Court of Chancery
6^th December, 1749

Before (the judges sitting on the bench)

• Lord Hardwicke , Lord Chancellor

The parties to the case

• Pyot (the Plaintiff)
• Pyot (the Defendant)

Summary of the facts

Dame Withringham devised her real and personal estate to trustees, their heirs &c first for her daughter Mary Withringham, her heirs &c. for ever.  Proviso, that if that daughter should happen to die before twenty-one, or marriage, then all the rest and residue of her estate both real and personal in trust to convey, assign, and set over the same to her nearest relations of the name of Pyot; and to his or her heirs, executors, administrators or assigns for ever.  [In the case of Leigh v Leigh (1808) 15 Ves. 92, on page 99, Mr Justice Lawrence makes a comment on this case as follows — “According to a manuscript note of that case [referring to Pyot v Pyot], which I have, the bequest was ‘to my nearest relation of the name,’ not ‘of Pyot,’ but ‘of the Pyots;’ and that circumstance appears to weigh with Lord Hardwicke.”  In the same report, on pages 110–111, Mr Baron Thompson makes a similar comment — “Some of the cases cited appear very material.  The case of Pyot v Pyot was a disposition by Will in a certain event of real and personal estate to the testatrix’s nearest relation of the name of ‘the Pyots:’ so it appears in the Register’s Book; which I have examined; and not ‘of Pyot.’”]

The daughter died under twenty-one and un-married.  At the death of the testatrix there were three persons then actually of the name of Pyot, viz a man and his two sisters, then un-married, and another sister originally of that name, but un-married at the time of making the will.  At the time of the contingency’s happening there was another person, who was heir at law to the testatrix, and of the name of Pyot, but more remote in degree than the others.

The heir at law insisted, this devise over was uncertain and void; so that upon the contingency happening it descended to the heir at law 5 Co. 68. b.  1 Vern. 362, and Tayler v Sayer, Cr. E. 742, though now denied to be law, shows the reason the judges went on in determining wills uncertain.  Relation cannot be properly nomen collectivum; for such are words, that have no plural, as stock.  Heir though nomen collectivum, is not so in its first sense; as held in Archer’s case.  Perriman v Pierce, 2 Rol. Rep. and Pal. 303, shows, that the judges, notwithstanding their inclination to construe a word plurally, yet where the testator has used it in the singular number, will not extend it further.  But supposing it not void for uncertainty, the heir at law is the person probably meant by nearest relation.  The testatrix had in view a single person, and could not intend to give it to all her relations.  Chapman’s case, Dyer, 333, shows that a devise to the family or Stock goes to the heir; and this will is very accurate except in this place; and if not meant to tie it up to a single person, would have been mentioned so.

Next on the supposition of its not being void, the question was, who were the persons to take under that description?  Whether the sisters, who both married before the contingency happened, on which the devise over took effect, should be let in with the plaintiff their brother; the contrary being insisted on for the plaintiff, because this devise must refer to the time of the contingency’s happening, when they were not of the name of Pyot: and Jobson’s case, Cr. E. 576. and Bon v Smith, Cr. E. 532. were relied upon.

Judgment

Lord Hardwicke —

This is a sort of scramble for the estate, and some difficulty arises, from what is insisted on by the answer of the persons claiming under the same general right with the plaintiff; giving colour to the argument of the heir at law from the uncertainty.  This limitation differs much from Jobson’s case: that being a devise in tail, remainder to the next of kin of his name; which was a vested remainder.  This is a devise in fee, upon which no remainder could be limited, but determinable on a contingency; which if in a reasonable compass of time, as this, is allowed.  A devise is never construed absolutely void for uncertainty, but from necessity.  Therefore if one devises an estate to his son, and he has several sons, and has not pointed out which; that is uncertain, and goes to the heir at law unless it could be construed eldest son by way of eminence; which would be the same thing; the eldest heir at law.  So in other cases; as in 1 Vern. 362; which was absolutely uncertain.  But yet if there is a possibility to reduce it to a certainty, the devise is good.  As a devise to his son John, having two of that name; court of law, although they adhere to words of the will as much as possible admit an averment to determine which the testator meant, which shows that every court of justice, law, or equity, leans to make a construction if possible, ut res magis valeat.  Then the question is, whether there is such uncertainty in this devise over?  and if there was a necessity to take this to relate to a single person it would be so; as there are several in equal degree of the name of Pyot; but I do not take it so; Relation is nomen collectivum as much as heir or kindred [1 Co. 66.].  A devise to A. and the heir-male of his body is an estate-tail; so held lately in B.R.  It is true, it was held otherwise in Archer’s case, but that was upon another ground; for if it was only on the point of the singular number, it would have been an estate of inheritance.  Suppose it had been to the nearest kindred of the name of the Pyots; that is the singular number: and I admit, that word is used as nomen collectivum oftener than the other, there being no plural to it, (though I have seen it used in the plural in incorrect writings:) in common parlance, Relation in the singular number is used as nomen collectivum, in the same sense as kindred; and no difficulty arises from the words his or her in this case, any more than where the word heir is used.  But this is a trust of both real and personal estate: and suppose this had been a devise of personal only; all those persons who are in equal degree of relation, of the name of Pyot, would be intitled to take equally: and the court would have properly taken into consideration, what would be the rule of distribution.  Then the court being upon a question of construction who are the persons designed, the involving the personal in the same trust and devise, is a circumstance determining the construction as to the real; affording a proper key to find out who are the persons designed to take under this description; for the testator must have had but one intention [So Roach v Hammand, Prec. Ch. 401.].  As to Taylor v Sayer, it is directly contrary to law: and I will lay but little weight on the reasoning in that case, to support a resolution which is wrong.

The next question brings into consideration another person, not before the court, viz the sister married at the time of making the will; which is the great difficulty what decree I shall make.  [The parties consenting removed the difficulty of her not being made a party.]  I am not quite satisfied with the resolution of Jobson’s case, and think it a very odd one.  In such devise there is no regard had to the continuance of name; but that case differs from the present.  The remainder there to the next of kin of the name, was not a contingent limitation over upon a fee devised precedent: nor was it a contingent, but a vested remainder; and therefore referred to the time of making the will: whereas in this case, the description of the person must refer to the time of the contingency happening, viz such as at that event should be her nearest relation of the name of Pyot.  Then taking this to be nomen collectivum, as I do, there is no ground in reason or law to say, the plaintiff should be the only person to take: because there is no ground to construe this description to refer to the actual hearing the name of that time, but to refer to the stock “of the Pyots.” [These were the words used, and not “of the name of the Pyots.”  See Reg. Lib.]  If it refers to the name, suppose a person of nearer relation than any of those now before the court, but originally of another name, changing it to Pyot by act of parliament: that would not come within the description of nearest relation of the name of Pyot; for that would be contrary to the intention of the testatrix; and yet that description is answered, being the name of Pyot; and perhaps nearer in blood than the rest.  Then suppose a woman nearer in blood than the rest, and marrying a stranger in blood of the name of Pyot; that would not do: and yet at the time of the contingency she would be of the name.  In Jobson’s case, and in Bon v Smith, (which was case put at the bar by Serjeant Glenville, which was often done in those times, but cannot be any authority,) it is next of kin by name; which is a mere designation of the name, and is expressly different here.  It may be a little nice; but, I think, “the Pyots” describe a particular stock, and the name stands for the stock; but yet it does not go to the heir at law, as in the case of Dyer; because it must be nearest relation, taking it out of the stock; from which case it also differs, as the personal is involved with the real; and it was meant that both should go in the same manner; and shall the personal go to the heir at law?  Then this plainly takes in the plaintiff and his two sisters unmarried at the time of making the will, although married before the contingency.  And I think the other sister, not before the court, is equally intitled to take with them; the change of name by marriage not being material, nor the continuance of the name regarded by the testatrix.

This is like that case in the House of Lords, which was a devise on condition of marrying a person of his name (Barlow v Bateman, 3 P.W. 65. and 4 Bro. P.C. 194. octavo edit.).  The lady married a person who changed his name to that in the will: the House of Lords held this voluntary change was not within the benefit of the bequest, nor a performance of the condition of the will.  [So held also in Leigh v Leigh, 15 Ves. 92.]

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Orders of the court

Order accordingly.