Baddeley against LEPPINGWELL Trin Geo III v burr this be a action of trespass  for break and enter the plaintiff close the defendant plead first the general  issue not guilty and dly a justification under a grant in fee from the lord of  the manor of Hedingham borough in the county of Essex on the that December  plaintiff reply that before the say grant videlicet on d July the lord grant  the say close to the plaintiff and her sister Ellen and their heir in  coparcenary that Ellen die and afterward on the that June the lord grant her  moiety to the plaintiff in fee the defendant rejoin and insist on his title  under the grant to he of the that December upon which issue be join the cause  be try at the lend assize for Essex in before Mr justice Bathurst the trespass  be prove upon the issue take on the plea of not guilty and upon the second  issue a special case be reserve to the follow effect Thomas Ives be seize of  this copyhold estate and have surrender the same by his will devise it to  Sarah Boreham the word in his will upon which the case turn be as follow I  give to clement Boreham the house now live in for his Wilmot natural life he  pay thereout S a year to Robert Boreham I give and bequeathe my two copyhold  tenement c be the premise in question to Sarah Boreham she pay thereout S a  year to her sister Elizabeth Boreham Sarah Boreham by her will date that June  devise the premise to Elizabeth her sister in fee Elizabeth marry one Baddeley  and have issue by he the plaintiff and her sister Ellen Ellen die a infant and  upon her death her moiety come to the plaintiff on the part of the defendant  it be contend that Thomas Ives do not devise the estate to Sarah Boreham in  fee but only for her life and that the reversion descend upon his heir at law  that he have a brother name John that John leave a son Thomas who surrender to  the defendant Leppingwell and that the devise have only pound for her fortune  it be a advantageous bargain for her at the time better term may be obtain for  infant by parent and guardian than when they be of full age by much the great  number of woman be marry infant but they be not to be a instrument to defraud  othersno difference if premeditate fraud or it turn into a fraud if the  statute of Henry VIII have never be make court of equity will have give relief  but I be most clear of opinion that infant be bar under that statute that Act  be make for use not for jointure this be a provision arise out of the general  consequence of use then consider the usage and transaction of mankind upon it  the object of all law with regard to real property be quiet and repose as to  practice the great conveyancers the whole profession of the law sir Orlando  BridgemanLord Nottinghamthere be not a doubt at the bar in Harvey and Ashley  Mr fazakerly always take it for grant that infant be bind the usage begin on a  legal determination within thirty year after the statute marriage settlement  will be total subvert without the interposition of the legislature and I  concur with Lord Hardwicke in opinion that no man live can draw such a Act of  parliament I never will put such a exposition on the law as to make it  necessary to apply to parliament t rectify it Wilmot er p to Sarah Boreham be  for life only defendant be entitle to the estate under Thomas the heir at law  the plaintiff in answer to this defence insist first that Sarah Boreham take  the fee under the will of Thomas Ives and second that if she do not yet as the  issue be join upon the fact of the grant make to her and her sister Ellen the  operation and validity of the grant can not be controvert upon this issue the  question submit to the court be saint whether Sarah Boreham take a estate in  fee or for life only under the will of Thomas Ives d if she take a estate for  life only whether defendant can take advantage thereof on the issue join  Wilmot Mr leigh for the plaintiff contend on the first question that where a  testator lie such a charge upon the estate devise as may render it a burden to  the devisee in any year the devisee shall take in fee and that in the present  case Sarah the devise may be a loser by the devise unless she take a fee for  the annuity be not restrain to Sarah own life but be a continue annuity and he  cite the case of reed v hallon Mod and on the d question as this be mere a  possessory action it be not necessary for the plaintiff to set out a title  unless the defendant have set out one himself which he have not do the prior  grant to Thomas Ives set forth in the rejoinder ought to have be special plead  but defendant have only traverse the grant to the plaintiff by which only the  legal operation of the grant not the plaintiff title be put in issue he can  upon this traverse go into the title of Thomas Ives or give evidence of any  thing foreign to the point in issue the plaintiff can not tell how to direct  her evidence for defendant may as well claim under any other person as Thomas  Ives the issue be take on the grant it be enough for we to prove the admission  which we do prove if the defendant can have invalidate it that ought to have  be by plead special Mr Ashurst for the defendant admit that where a devisee be  charge with the payment of a sum in gross he shall have a fee though the  estate be not devise to he and his heir but a annual payment out of the thing  devise will not create a fee because the devisee can lose by the devise here  the value of the estate devise be pound S per annum and the charge be only  Wilmot S per annum therefore the devisee be sure not to be a loser and as to  the d question that upon this traverse nothing but the effect of the grant can  be controvert the plead in case of freehold be different from that in case of  copyhold a copyholder in the eye of the law have only a estate at will and he  may allege a admittance as a grant the lord can only transfer a estate accord  to the surrender if he exceed this authority his admittance be good only pro  tanto now if Sarah Boreham be as we contend only tenant for life she have no  estate which she can devise at her death consequent the admission of the  plaintiff and her sister Ellen be in effect a grant of nothing the defendant  therefore in his rejoinder deny that the lord grant the estate and show a  title in himself and as the plaintiff be a copyholder can not plead a title  but can only plead it as a grant from the lord the defendant can only traverse  the grant which he have do and have traverse the plaintiff title he proper set  up his own Mr leigh in reply insist that the charge of the annuity may have  continue long than the devisees life and therefore the devise may have be  prejudicial and rely on the case of Ansley v chapman in cro Charles and reed v  hallon before cite and on lee v Stephens et all shower where a devise to James  conditional that he shall allow to Nicholas meat drink c during his life be  adjudge a fee he likewise cite Humberton v Howgill in Hobart the present  devise he say be intend as a provision for both sister and it be not mean that  the annuity shall cease upon the death of Sarah and it be Payable Wilmot out  of the estate not out of the rend and as to the second point that the  defendant can not put the plaintiff to show any other title than the grant of  the lord the difference of plead be only in point of form Lord Mansfield and  Mr justice Dennison be both absent Mr justice Wilmot on this day a declare the  opinion of the court a that July Wilmot er p there be two point refer to the  court saint whether Sarah Boreham take a estate in fee or for life under the  will of Thomas ives d if only for life whether the defendant can take any  advantage of the plaintiff want of title upon the issue join on these plead  the first question be the material one for if she take a fee the lord grant to  the plaintiff and Ellen her sister and their admittance will operate as a  grant of the fee and we think Sarah Boreham take a fee under the will of  Thomas Ives the case upon the will be simple this Thomas Ives seize of a house  in which he live and of two copyhold tenement which he have surrender to the  use of his will and have a daughter Elizabeth Boreham and many grandchild of  which Sarah the devisee be one make his will date the d December by which he  devise the house to clement Boreham for his life he pay thereout S per annum  to Robert Boreham the testator grandson and after clement Borehams decease to  be equal divide between Robert sabil and Jeremiah Boreham the child of Robert  Boreham decease who be his grandson and he give his two copyhold tenement to  Sarah Boreham she pay thereout S per annum to her sister Elizabeth Wilmot  Boreham then he give pound between his two granddaughter whether and mary  Boreham and make several other bequest the principle upon which all case arise  on the construction of will must depend be admit by the counsel on both side  videlicet that the intention of the testator be to be collect from the whole  will consider together and such a construction to be make as will effectuate  that intention but that collection and inference must be draw from the will  itself ex soft fleshy body parts will and all wanton arbitrary whimsical  conjecture of intention be to be banish from the mind when it be to judge upon  such a question for though the intention need not be evidence by a necessary  implication as in the case mention out of Vaughan yet it must be a clear  apparent intention evidence by the word of the will in such a manner as to  leave the mind quite satisfy of that volition of the testator and therefore  let he use what word or expression he will if they disclose what he mean it be  the law to his family and must be obey and the indulgence which the law show  to this kind of instrument be owe partly to the word of the Act of parliament  which enable person to devise at their will and pleasure and partly in respect  of the situation which man be in when they make their will incapable of get  advice and therefore the law deliver they from the vassalage of form and  technical word and only expect that their meaning shall be tell in write as  this be the principle and the only difficulty lie in the application of it  other case unless they be the same in all circumstance rather obscure than  illuminate these kind of question when the mind be in pursuit of the testator  intention dissimilar case be Wilmot fire fool that mislead the mind instead of  direct it and therefore the counsel very proper avoid load their argument with  multitude of case and only mention two or three which come the near to the  case in question and which I will take notice of present and the counsel have  put the question upon its proper point videlicet whether a apparent intention  to give the fee can be collect from the word of this will I collect that  intention from the different pen of the devise to clement Boreham with the  limitation over upon it and of the devise to Sarah Boreham when the testator  mean to give a estate for life he have say so and have express that intention  very particular by word apt and proper for that purpose for and during the  term of his natural life pay thereout S a year to his grandson Robert and find  from that partial disposition that he have something leave in he still to give  he devise that house after the death of clement Boreham to be equal divide  between Robert and Jeremiah Boreham but in the devise to Sarah he omit the  word for and during the term of her life which he will certain have insert if  he have intend it this difference of expression paint the distinction which  his mind have take between give part of his estate in the thing devise and his  whole interest in it the devise to Sarah follow the devise to clement  immediate if he write he can not but see they if read to he he must have hear  the sound of the word all rest with he for though a devise to a general  unassisted by other clause which mark the intention will give only a estate  for life yet it be plain the testator Wilmot er p do not think so for if he  have it be Wilmot quite unnecessary and nugatory to have insert the  restrictive word for life this be therefore one decisive mark draw from the  will itself to show that when the testator mean to give a estate for life he  say so and consequent that when he aye the thing general he do not mean a  estate for life only and indeed I believe all man unacquainted with the law  when they mean a restriction they express it and when they give the thing  general they mean the absolute property of the land as much as of a personal  chattel and the custom of devise which prevail antecedent to the Henry VIII  and be a relic of the Saxon law be to devise land ut good et catalla another  circumstance of intention be limit the estate over upon the first devise where  it be express give for life and make no limitation over upon the second indeed  he may intend to limit a remainder over on one estate and not on the other and  therefore this alone will not be sufficient to warrant the inference of a  different intention but still it strengthen the other evidence and act as a  auxiliary proof of the intention but the most material passage in the will  from whence I collect the intention be the condition of pay the annuity to  Elizabeth Boreham Mr Ashurst very forcible urge that the word thereout be a  very emphatical word and bring the case direct within the distinction in  collier case   that where the condition be to pay general there the fee will  pass by reason of the possibility of loss but where the sum be to be pay out  of the rend and profit then as there be no possibility of a loss because he be  not to pay till he have receive there it will not enlarge the legal operation  of the devise Wilmot word and give a fee and that the word thereout be  equivalent to say out of the rend and profit and I think it be and if it have  be a sum in gross it will have be a very different question how far the  different pen of the two clause which I have already mention may have  influence the question independent of the condition be a matter of speculation  not worth debate for here it be not a sum of money in gross but a annuity to  the devisees sister who be both grand daughter of the testator they both stand  in a equal degree of relation to he and it be manifest he be provide for they  both it be impossible to conceive he mean to make the provision for one grand  daughter to depend upon the life of another and to disinherit his own grand  child in favour of his brother and especial when by a subsequent clause in his  will he give pound a piece to two other of his grand daughter Ann and mark  Boreham that bequest give they the absolute property in that money and that  legacy be equal in value to the annuity at the rate of year purchase and as he  seem to have aim at a equality the pecuniary legatee will be sure of pound  whereas Elizabeth may have nothing if Sarah die within the year and it will be  direct contradict the legal operation of the word in the will and the very  construction which word of the same import ought to have as to Sarah Boreham  for the defendant admit and insist that the devise to Sarah Boreham give her a  estate for life if so why will not the devise of the annuity to Elizabeth  Boreham give her a life estate in the annuity and if it do Sarah must take the  fee for the security must be intend to answer the thing secure the annuity can  come out of the thing devise as long as she annuitant Wilmot life unless the  devisee take the inheritance and it real almost amount to a necessary  implication for if a estate be give to a particular person and a act direct to  be do with that estate or any payment to be make out of it which can be do but  by vest the inheritance in the first devisee it must necessary give the  inheritance and be divide by very thin partition from a necessary implication  it be certain a violent presumption which Lord coke say Inst be full test and  a full proof of intention out of the will itself be the proof which the mind  be to pursue and to endeavour to attain and it be something like the case of  shaw and weigh Geo I Eq can ab where a estate be devise to trustee general  without any word of inheritance but it be upon trust and to support estate  which require a estate of inheritance in the trustee and therefore it be hold  to give it and the case cite by Mr leigh of reed and hallon Mod come near this  case but it be not exact the same so far it resemble it that the house be give  upon condition that he pay unto his sister pound a year the word pay in this  case make a condition and be exact the same as the word in that case upon  condition that he pay but in that case the payment Wilmot er p be not direct  to be make out of the estate but quarterly and the first payment may be in one  month after the testator decease and before Robert can have receive any profit  and therefore the possibility of a loss be a ingredient in that case but still  the case apply to prove that they take the annuity for their life under the  word upon condition that he pay to his sister pound a year for what the court  say do not prove as Mr Ashurst contend that they be give for life express but  must be take as their sense of the operation of the word mark in Wilmot italic  and can be print in that letter for no other purpose but to inform the reader  that those be the very word of the will and the court rely upon those word as  plain prove that the testator intend the devisee a feesimple the case in cro  Charles Ansley v chapman be cite by Mr Ashurst to meet this objection there be  a devise of land by several clause to several son and particular to Michael  and Henry then the testator declare that they shall bear a proportionable part  of pound a year to his wife for life and yet the court hold that payment do  not enlarge their estate into a fee but Mr leigh give the true answer the  charge be not make for the wife by the will for it recite a prior obligation  to pay it and therefore the payment do not at all depend upon the duration of  the estate which the son take under the will Mr Ashurst do endeavour to take  off the force of the argument arise from the devise of this annuity by observe  that the annuity in the first devise determine with the life of the devisee  who be direct to pay it and if he mean it in that devise he may also mean it  in the other but the annuitant be one of the person to who the estate be limit  in remainder for as there be no other of that name mention in the will they  must be intend to be the same but if not the same there be a very essential  difference between the case the estate be express give for life to the devisee  in the first clause whereas in the second it be give general the word in the  first clause must control any presumption of intention in the one case but  because he have frame his devise in such a manner in one case that the annuity  must drop with it there be no foundation to infer that where he have frame the  devise in a different manner in another case that he intend the annuity shall  Wilmot drop with it the reverse be rather to be presume and that if he have  have the same intention in both he will have express himself in the same  manner as we think Sarah Boreham take a feesimple under the will of Thomas  Ives and consequent that the plaintiff and Ellen have the fee when they be  admit by the lord the question upon the plead become quite immaterial but if  the fact be as the case state it that Thomas Ives as the nephew and heir of  the testator be entitle to this copyhold estate in case Sarah take only a  estate for life and consequent that the defendant Leppingwell under he and as  his surrendee have the legal title to this estate I shall have think that upon  this issue the grant of the lord to the plaintiff and Ellen will have be a  mere nullity and that the plaintiff prove the fact of the grant without any  right at all will not have prove the issue against the defendant have the real  right to the estate original copyholder be mere tenant at will a class of  middle man between freeholder and villain free as to their person but not as  to their estate inferior to freeholder who be free both as to their person and  estate superior to villain who be free neither as to their person nor estate  and in very ancient time the word freehold be mean to describe a estate which  can not be take away by the lord in opposition to every other species of  estate which always lie at the mercy of the lord by degree this species of  estate acquire a stability custom which be immemorial usage cloth it with one  material quality analogous to a freehold estate videlicet that the lord shall  not ad it pleases resume it that the heir where it be a copyhold of  inheritance shall be entitle to the estate pay a fine certain or uncertain  Wilmot accord to the custom of the manor upon his admittance and the fine not  be due till admittance it become the lord interest to admit he but still the  admittance give no right and even in the case of a surrender the estate  acquire by the surrender depend entire upon the right which the surrender have  at the time of the admittance the lord in both case be a mere instrument and  the only difference between a admittance on a descent and a surrender be that  it be necessary in the one case to entitle the lord to his fine and it be  necessary in the other both to take the estate out of the surrender and also  to entitle the lord to his fine but in either case no estate real passes from  the lord and even after the Wilmot er p surrender and before the admittance  the estate remain in the surrender and be not vest at all in the lord not even  in passage between the surrender and admittance and though every admittance  may be plead as a grant yet it real operate as a grant only in respect of the  lord and against his right as lord for to every other person and purpose  whatsoever it be valid or void accord to the right of the party the surrender  control the admittance in all case whatever if the surrender be for life and  the admittance in fee the estate of the copyholder be accord to the surrender  and not accord to the admittance so if the lord admit a aid b where the  surrender be only to a the whole estate be in a or if the surrender be  absolute and the lord admit upon condition the condition be void the reason  give be because the lord have only a customary power to admit accord to the  surrender and so far as he exceed that power the Act be void   b in the case  of a descent the admittance be of still less validity for it be not so much as  necessary to complete the title Wilmot and if the lord admit twenty different  person as heir at law the unadmitted real heir at law will have a good title  against they all and the grant in the present case be state express to have be  make to the plaintiff and her sister Ellen in coparcenary which show the  nature of this grant and therefore if they have no title as heir at law the  grant and admittance be total void and the defendant can traverse nothing else  but the grant for the allegation by virtue whereof they be seize be not a  matter traversable but the traverse be take proper to the grant which put the  right of the copyholder proper in issue and the grant be good or void and the  plea prove or disprove as that right be determine as to the case of Humberton  and Howgill in hob where it be say if issue be take direct feoff or not feoff  it must be avoid by Covin special plead for it be a feoff tiel quel first this  be not the point of the case but dly the feoff be good to every intent and  purpose except as against creditor whereas in the present case it be void  against every body for even the lord himself may admit the real owner and the  first admittance will not defeat or frustrate the second and in that case if  feoff by a person incapable from the nature of the estate or other incapacity  which render the Act total void it will prove the plea it be then say that a  possessory action be not sufficient to destroy the plaintiff title Rep   he  must show the title in himself and he rely only on the grant of the lord but  if Sarah Boreham take only a life estate Leppingwell have a title under the  heir at law and then the grant of the lord to he be substantiate and though  possession be sufficient against a Wilmot wrongdoer yet it be not against the  real owner who have a right of entry which will be the present case if Thomas  the nephew be the customary heir if he be not then the defendant be a entire  stranger and wrongdoer and the plaintiff possession will enable her to  maintain the action and the merit will be against the defendant upon both the  question but as the law be clear with the plaintiff on the first question she  be entitle to the postea Wilmot in the king bench