appendix andrews Appius I appendix Andrews Appendixi common plead hilary term  geo two roe v Wickett Andrews appendix I er report date roe on the demise OF  Gulliver against WICKETT testator devise freehold land to his wife for life  and after her death to such child as she be suppose to be enseint with in fee  provide that if such child as shall happen to be bear shall die before leave  no issue then the reversion to his wife and two sister respective in three the  wife never be enseint it be hold that this devise over of the reversion never  take effect see SC I will king b with note vide ante n will ch j deliver the  opinion of the court this case come before the court on a case make at  guildhall at the sit which state that Robert Wickett have a wife name  Catharine and three sister Elizabeth whether and mary but no child or brother  by his will date the that of December give all his land tenement and  hereditament whether in feesimple for life or life lease for year in  possession or reversion to Andrews Appendixii his wife for life and after her  decease to such child as his wife be suppose to be enseint with and to the  heir of such child for ever provide that if such child as shall happen to be  bear shall die before it attain its age of twentyone year leave no issue then  the reversion of one three part of all his land shall go over to his wife  Catharine and her heir and another three part to his sister Elizabeth and her  heir and the remain three to his sister whether and her heir he also give to  his sister Elizabeth to be add to her father legacy and to his sister whether  and to his sister mary and make his wife executrix the case then state that  the wife be not with child at the time of make the will nor at the time of the  testator death who die a few day after make the will it state that the  testator be seize in fee of the premise in question and that the defendant  claim under mary Wickett one of the testator sister and coheir and the lessors  of the plaintiff claim the whole under Catherine the wife and the other two  sister Elizabeth and whether and the question be whether as Catherine the wife  be not with child at all by the testator the devise over to her Elizabeth and  whether can ever take effect if they do then the verdict which be give for the  plaintiff shall by the party agreement stand for the whole if not then for two  three part only if this have be nothing more than a question reserve at nisi  prius I shall have have no doubt upon a case so clear as the present but there  be a judgement in b r on another part of this will which may at first seem to  differ in some measure from our opinion and as Lord Harcourt have make a  declaration and in some sort give his opinion on the same devise contrary to  our sentiment we have therefore through consider the case and shall say more  on the subject than otherwise be necessary Andrews Appendixiii this case have  be much obscure by insist on point and cite case to support they which be not  material to the question there be a great many cite in relation to devise to  infant in ventre sa mere some in which all such devise be hold have other that  they be good in going to be though void in present time and a three set though  there have be do adjudication on they that all such be good because they be in  nature of devise in going to be it be plain by the case cite that those who  have talk about these devise have confound themselves by not distinguish  between devise that be void ab beginning and such as become so afterward it be  certain if no child be bear the devise be void but which of the three opinion  be best it will be time enough to determine when such a case come necessary  before the court but in the present case we do not think it necessary to  determine whether the devise to the child be good or not for lie it quite out  of the case the subsequent devise will still depend on the same contingency  and fall under the same consideration to show that this be a material part of  the case two thing be mention in the argument one by the plaintiff which be  that if the devise to the infant be void the condition annex to it be so too  and so the devise in Andrews appendix go er p remainder take effect and become  absolute immediate the other be by the defendant that if this be false and the  devise over be so connect with the condition as that one depend on the other  then if the term and contingency of the condition do not happen the devise  over can take place and instance the case of roe v flood e geo which as it  regard the present case be thus a devise of land to r bishop and his heir upon  condition that he do pay all the devisor debt and legacy and if he Andrews  Appendixiv do not then a devise over to Elizabeth flood r bishop die before  the testator and it be adjudge that the subsequent devise depend on the former  estate with the condition annex be become likewise void but as we be all of  opinion that the subsequent devise do not depend on the condition that  argument be of no weight to show that this question concern devise to a infant  in ventre sa mere be material it be far offer by the plaintiff that if there  be a devise for life then to another in remainder if the first devise become  void by the devisees die in the lifetime of devisor or by his become a monk  and incapable of take the devise in remainder will vest immediate Perk title  devise sect and to be sure this be good law but not parallel to the present  case and there be no book or case that where there be a devise for life and a  void one in remainder the second shall become good because the first be become  void some question have be make whether this be to be consider as a executory  devise or a contingent remainder but it be not material which it be because in  either case it can never take effect if contingency on which it depend never  happen but at last it be admit by counsel on both side that it may be a  executory devise it not be such a limitation as can take place accord to the  rule of law as a contingent remainder and it certain be so take it then as a  executory devise there be many case cite on the part of the plaintiff to show  that it be good accord to the rule of executorydevises and that the  contingency be not too remote on the part of the defendant it be say the  contingency be too distant and that no case have ever go so far if the  contingency have Andrews Appendixv happen so as the lessors of the plaintiff  may claim as executory devisees this will have be material but as they have  not it be out of the case but the contingency be not too remote be to arise  within twentytwo year at far that be upon the death of a person within  twentyone year after his birth and who must be bear within one year after the  death of the devisor and there be several case which have go far I shall only  mention the case of Massenburgh v AA I vern where the limitation of the trust  of a term which be govern by the rule of executory devise be hold good though  the contingency will not happen till twentyone year after the death of a  person in be many thing be say as to the word provide that it be sometime a  word of condition and sometime of limitation but as to that there be but one  rule to go by which be this that it be either a term of condition or  limitation accord to the word of the deed or will and the intent of the party  but this be not material here for if it be a condition precedent the devise  over will not vest till it be perform but if a contingent limitation or rather  a executory devise it can never take effect till the contingency happen have  now clear the case of the rubbish the single question arise be this whether  then a man devise a estate to a on three contingency the devisee can have it  though none of they happen this be a devise to a wife and two sister on three  contingency first if a child happen to be bear d if it die before twentyone d  if without issue nun of these happen but another have happen videlicet that  the wife be not with child as to which no direction be give in the will and it  be plain a Andrews Appendixvi casus to let go and the rule of law be that a  heir at law shall not be disinherit unless by express word or a intent  manifest and apparent as lie down twice in cro Elizabeth and in other book  Lord Vaughan have carry this further and say it must be by necessary  implication but I think this go too far and be to be find no where else but  manifest intent be sufficient in our case there be no express word to take the  estate from one of the coheir in the case that now have happen but it be say  that the intent appear for two reason first he have give mary only though he  give the other and second because it be as reasonable that the devisees shall  have the estate in case no child be bear as if it be bear and shall die before  twentyone as to the first he have not leave her a shilling which accord to the  vulgar notion amount to a disinherit and I think this be a strange uncertain  presumption and be not a manifest intent Andrews appendix seven er p as to the  second it be mere guess work and be make a will instead of construe one out of  all the case cite in the argument only five relate to the point in question  more cro Elizabeth the word or construe and cite to show that word be construe  out of their natural meaning to support the intent but there the court go in  favour of the heir it be all imperfect case and not of the great authority  holcroft case more Grascot warren comb and in case in king wm s time which be  a case very like the present but strong of the two for here the defendant  claim under a heir at law who be to be disinherit but there it be under a  executor who be not so much favour as a heir Andrews v Fulham b r t pound geo  upon this same will but we think that there be a great difference between the  case Andrews Appendixvii that case be of the leasehold this of the freehold  estate and many thing be say at the bar to distinguish the case first that the  plaintiff against who judgement be give be representative to the person who  have assent to the devise over and so be conclude dly that the same word in a  will may have different construction in regard to leasehold and freehold  estate as in Papillion voice p W Eq ab FitzG Kely ante I can say whether this  be the foundation if the opinion in b r but a case of a freehold be cite  against the opinion of the court and they say the case before they be a  leasehold whereas the case cite be of a freehold Jones v Westcomb Eq ab m Ann  it concern a personal estate and be a very imperfect case so do not stand in  the way therefore we be of opinion that the devise in remainder to the wife  and the two sister never take effect and that on the death of Catherine one  three part descend to mary one of the coheir of the devisor under who the  defendant claim therefore the verdict must be give for two three only as it  may reasonable be expect that I shall inform the public upon what authority I  offer the precede case I think it proper to mention that for it among we  several other manuscript case of determination about the same time many of  which I believe have not be publish I be indebt to a decease relation who be a  member of the Irish Andrews Appendixviii bar and attend westminsterhall as a  student about the time when the precede case be determine but by who they be  take I be total ignorant the case of roe v flood cite in the precede case be  report ill fortescue Rep one question there be whether the benefit of a lapse  devise be to go to the heir at law or to the residuary devisee which also  occur in do on the demise of morris Underdown c b m geo cite Blackst but not  any where report in print I will therefore take this occasion of give it to  the public on the same authority as the precede case si quid to get knowledge  of rectius this candidus bestow c g W V do v Underdown Andrews appendix VII er  report date do ex dim morris against Underdown testator devise certain land to  a until b c and d shall attain their respective age of and then to the say b c  and d their heir and assign respective as tenant in common and he devise all  the rest and residue of his estate to e b die before the testator the testator  heir and not the residuary devisee be entitle to bs share of the land in fee  for the testator intent be to be take as thing stand at the time he make his  will and then no interest in the land remain undisposed of to go to the  residuary devisee for have b survive the testator the estate will have vest in  he and descend to his heir though he have not be for the word then do not date  when the interest be to vest but when it be to fall into possession apply do d  well Scott m S refer to Perceval Perceval l r Eq in re mason Ch a c special  verdict in ejectment that Richard morris be seize in fee of the Andrews  appendix ringtail er p premise in the declaration of which a three part be in  dispute of the nature of gavelkind devise they to I William Underdown and  whether his wife until John William and morris son of the say William and  whether shall attain their respective age of twentyone and then to the say  John William and morris their heir and assign respective equal to be divide  between they as tenant in common and not as jointtenants to take and hold  their several share as they shall arrive at their several age of twentyone  except Andrews Appendixix William and whether his wife shall happen to die  before that time and after their deceases to the say John William and morris  their heir and assign in manner aforesaid charge and Chargeable nevertheless  with the payment of per and to the say William and whether during their life  clear of all tax and deduction to be pay half yearly equal and proportional  out of their several estate as they shall come to enjoy they then the testator  devise to William and whether Underdown all his land and tenement c lie in  Walmore and not before devise subject to the payment of debt and legacy the  testator devise all the rest and residue of his estate to mary daughter of say  William and whether and her heir subject to the payment of some particular  legacy and say his will be that all his debt and legacy shall be pay out of  the estate give to William and whether his wife and mary their daughter equal  among they and he make William Underdown and whether his executor the jury  find that John Underdown die in the lifetime of the testator and that the  testator continue seize to his death which be in march and that the lessors of  the plaintiff be cousin and heir at law of the testator accord to the custom  of gavelkind that John if he have live will have be twentyone and that all the  other devisees be still live the court on the first argument agree on these  point be it that John die in the lifetime of the testator nothing can vest in  he dly as the brother take as tenant in common there can be no survivorship as  to John part dly that the devise to William and whether till the brother  attain their age be not to be construe till all attain twentyone but till each  respective attain it Andrews Appendixx will Ch I deliver the opinion of the  court the only question be whether John three part who die in the testator  lifetime be to be consider as a lapse devise and so will belong to the lessors  of the plaintiff who be heir at law to the devisor or whether it shall go to  mary the defendant who be the general residuary devisee to who the testator  have give all his estate both real and personal not before devise the word  estate will carry any interest in the land which be not before dispose of and  as this depend upon the intention of the testator this devise must be  determine on these three rule saint that the intent be to take place when it  do not contradict any rule of law dly that the intent ought always to be take  as thing stand at the time of the testator make his will and that it ought not  to be collect from the subsequent accident which the testator can not foresee  at the time of make his will dly when the testator have give all his estate  and interest in several land so that nothing remain undisposed of if he shall  die nothingcan pass to the residuary devisee as to the first rule as it have  be so long establish I shall cite no case to support it but only say here be  no rule in the way of the lessors of the plaintiff but there be one to help  they videlicet that a heir at law shall not be disinherit unless the intent be  manifest and apparent and it will be difficult to show how the heir shall not  have John part but it be plain his intent be that he shall have it because  have his intent be contrary he may upon John death have make a new will and  have give it from his heir at law to his residuary devisee as to the second  rule that needs no authority Lord Talbot determination in the case of Hopkins  v Andrews Appendixxi Hopkins I Cas t Talbot be of great authority and indeed  will stagger I much do it not contradict this rule but I think it do not the  case be thus the testator John Hopkins give the estate to Samuel son of his  cousin John who be his heir for life and to his first and other son in tail  male and in default thereof to the son of Sarah daughter to his cousin John  with remainder over to person in be Samuel die before the testator and without  issue Sarah be unmarried at the time of the death of Samuel and the question  in that case be whether the devise to Sarah son be a contingent remainder and  therefore void or a executory devise it certain be a contingent remainder at  the time of the will but Samuel die before the testator Lord Talbot hold it a  executory devise and therefore good and that the estate in the mean time till  Sarah have a son vest in the heir at law all therefore Lord Talbot determine  be not that the Andrews appendix twelve er p intent of the testator shall be  alter or that a subsequent accident will alter his will but that the  subsequent accident alter the law he likewise determine this in favour of a  heir at law who otherwise must be disinherit entire therefore that case do not  differ from this rule it be mention at the bar that the case of Ashburnham v  Bradshaw atk Barnard Charles be against it which be a case refer to all the  judge on the mortmain Act but I do not think that that be a express authority  against this rule because that be a construction upon the word of the stat geo  but so far it be a authority for this rule as all the judge declare it to be  law there be several case cite in the argument of that case of ashburnham in  support of it as Barker cook where it be agree to be law as to the three rule  it be not only Andrews Appendixxii agreeable to reason but establish by three  modern case of very good authority first that of Goodright Opie Mod cite I Ves  ambler which be first argue in b r m geo and determine e geo that case be a  devise of land to four person and their heir as tenant in common and not as  jointtenants and then the testator give all his good and chattel and all his  estate both real and personal of what nature or kind soever in full word than  in the present case to Opie as residuary devisee one of the first devisees die  four year before the devisor the lessor of the plaintiff be heir Lord Ch I  Prat and Powel I be of opinion for the heir and fortescue and Eyre for the  residuary devisee and therefore it be insist at the bar that this be no  authority as the court be equal divide but this case be now a very good  authority for my brother fortescue change his opinion in this court in wright  horn Mod fort wright v hall ambler and Eyre also afterward change his opinion  in this court in roe flood in which brother fortescue also join he the second  authority be wright horn which be on a case be not among the record a devise  land to f carter and his heir and other land to several other in fee and then  follow these word and all the rest and residue of my land and tenement c I  give to I Lomax and his heir for ever f carter who be the first devisee die  before the testator and this be hold a lapse devise and that it shall go to  the heir and not to the residuary devisee and Lord king say that though the  will be not complete so as to pass any thing to f carter till the death of the  devisor yet his intent be to be take as thing stand at the time of make the  will for every man make his will as if he be to die the next moment therefore  it be not alterable by contingency which the devisor can not foresee the  Andrews Appendixxiii three authority be roe flood fort c b m a devise land to  r bishop and his heir upon condition to pay debt c and at the latter end of  his will he give all the rest and residue of his real and personal estate not  before devise to Elizabeth flood the defendant r bishop die before the  testator and it be adjudge by the whole court that the heir shall have the  land and not the residuary devisee for it must be understand all the land not  dispose of at the time of make the will and the case of wright v horn be there  rely on if then the case before we be a new one I shall be of the same opinion  as the judge be in that and I be always glad when my sentiment be support by  former authority the only question be therefore whether any estate or  contingent interest remain undisposed of at the time of make the will but upon  consideration we be all of opinion that nothing remain undisposed of at that  time for the estate in question and which be suppose to be residuary land will  have vest in John at the time of the devisor death if John have live and  therefore have descend to his heir though he have not be twentyone for the  word then do not date when the interest be to vest but when it be to fall into  possession and it be the same thing as if he have give the estate to William  and whether for a term of year and then to John and his heir yet if John have  outlive the devisor the estate will have vest in John and though John have die  within the term yet there can be no doubt but the reversion will have descend  to his heir and in this we be warrant by two great authority in point the one  ancient the other modern the first be Borastons Andrews Appendixxiv case   the  last be Manfield dugard Eq ab which be ground on Borastons case there have be  variety of opinion whether the first taker for year shall bold till the son  will have come to twentyone year if they have live or shall hold do long than  until the time of their death but there be no occasion to give a opinion on  this point it be find by the verdict that John will have be twentyone at the  time of the demise in the declaration there be two objection make by the  defendant counsel which be proper to be take notice of first that the testator  intend that William and Andrews appendix xiv er p whether shall have per and  out of all the premise for life whereas by give John part to the heir at law  they will lose one three part second the testator have direct the residuary  devisee to pay debt c and it be say that this fund of the residue may be  insufficient to do this there be a endeavour to answer this at the bar first  that the estate will pass cum load to the heir but clear not as he do not  claim under the will but the true answer be that it be a casus to let go which  the testator do not foresee and we be only to construe his will and not to  make one for he and the devisor do not intend that this contingent interest  shall be subject to his debt for he can not foresee that the accident will  have happen and shall we construe the estate to belong to the residuary  devisees it will be liable to the same objection that William and whether will  not have have the whole for their life neither will the estate have be liable  to the debt if John have outlive the testator for his share will not have be  liable judgement for the plaintiff Wilson king bench er p Wilson king bench  report volume report of case argue and adjudge in the king court at  Westminster by george wilson Esq sergeant at law in three volume Vol contain  case in the court of king bench c beginning in Hilary term in the that year of  the reign of king george the second and end in Hilary term in the that of the  same reign the three edition Wilson king bench hilary term geo two