burrow Baddeley versus LEPPINGWELL Friday that Monday that of July intention  of a testator to be collect from the whole of the will see durn durn this be a  action of trespass for break and enter the plaintiff close call the hopground  the defendant plead not guilty aid also a justification of his entry under a  grant in fee from Thomas Ashurst Esq lord of the manor of Hedingham borough in  Essex make to he on that December by his stewart at a courtbaron to hold the  say close to he and his heir by copy of courtroll accord to the custom of the  manor the plaintiff in her replication admit that Thomas Ashurst Esq be lord  of the manor of h and be seize in fee of the close but allege that at a court  of the say manor hold upon the d of July he make a prior grant of it to the  plaintiff and one Ellen Baddeley her sister to hold in coparcenary by copy of  courtroll and that Ellen die and thereupon at a subsequent court the lord  grant her moiety to the plaintiff in fee and she be admit thereto on that June  and so become sole seize the defendant in his rejoinder allege that the lord  have make a former grant to Thomas Ives in fee who die and the premise  thereupon descend to Thomas Ives his nephew and heir who convey the same to he  the defendant and traverse the grant allege in the replication to have be make  by Thomas Ashurst Esq to the plaintiff and her sister Ellen Baddeley in manner  and form as in and by the replication be allege and upon this traverse of the  grant allege in the replication issue be join the cause be try at the Essex  assize before Mr justice Bathurst and a special case be state to the follow  effect the trespass be prove upon the first issue take upon the plea of not  guilty the case upon the second issue appear to be that Thomas Ives be seize  in fee of the place where it be commit and that he surrender it to the use of  his will and then make his will and die which will be as follow in the name of  God amen I Thomas Ives of castle Hedingham in the county of Essex victualler  be c do make c I give and bequeathe unto clement Boreham of Rowhedge in the  say county of Essex victualler the house I now live in situate and be in  CastleHedingham aforesaid and call or know by the name or sign of the cock for  and during the term of his natural life he pay thereout burrow yearly and  every year by halfyearly payment forty shilling a year to Robert Boreham my  grandson and after the decease of the aforesaid clement Boreham to be equal  divide to Robert Boreham sabill Boreham and Jeremiah Boreham the child of  Robert Boreham decease item give and bequeathe my two copyhold tenement now in  the tenure or occupation of Edward twogood and Elizabeth Savill widow be in  CastleHedingham aforesaid to Sarah Boreham the daughter of Elizabeth Boreham  widow she pay thereout forty shilling a year to her sister Elizabeth Boreham  item the forty pound that my daughter Elizabeth Boreham aforesaid have of I I  give to whether Boreham and mary Boreham my granddaughter to wit apiece share  and share alike item I give and bequeathe to my brother John Ives and do also  acquit he of a note I have under hand for more item I give to the child of  John Fardersworth that he have by his first wife item I give to Sander  Walfords three child fifteen pound my mind and will be that what legacy I have  herein give shall not be pay till after the decease of I and my wife and three  month after and last I do hereby nominate make and appoint my say wife clement  Boreham aforesaid and John Ives executrix and executor of this my will in  witness whereof c the d day of December Thomas Ives that the estate devise by  the will of the say Thomas Ives to Sarah Boreham consist of two cottage and  the hop ground in question and be at the time of his death of the yearly value  of five pound and six shilling that at a courtbaron hold for the manor of  HedinghamBorough on that April Sarah Boreham be admit to the say premise prout  the admission and make a surrender to the use of her will and afterward devise  the same prout the will and die that at a courtbaron hold for the say manor on  that June Elizabeth Boreham be admit prout that admission burrow er p that at  a courtbaron hold for the say manor on the d July the plaintiff and her sister  Ellen be admit to the premise in question prout that admission the defendant  claim under Thomas Ives the son of John Ives who be brother and heir accord to  the burrow custom to Thomas Ives the testator and at a court hold on that  December be admit to the premise in question prout his admission 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 dly if she take a estate for life only  then whether the defendant can take advantage thereof on the issue join upon  these plead Mr leigh argue for the plaintiff Mr Ashhurst for the defendant Mr  leigh insist upon the first question that Sarah Boreham take a estate in fee  under this devise of the tenement to her she pay thereout forty shilling a  year to her sister Elizabeth Boreham for where a testator lie such a charge  upon the estate devise as may render it by any possibility even though not  within probability a burden instead of a benefit to the devisee in any year  the devisee shall take in fee otherwise indeed if the payment be only direct  to be make out of the rend and profit now in the present case Sarah the  devisee may be a loser by the devise unless she take a fee for the annuity  charge upon her be not restrain to Sarah own life but be a continue annuity  and as the testator intend that the annuity to her sister Elizabeth shall  continue during Elizabeth whole life he certain mean to devise a fee to Sarah  who be charge with the payment of it and this intention with regard to the  present devise be strengthen by his be explicit in the former devise to  clement Boreham for and during the term of his natural life he pay thereout  yearly and every year S a year to Robert Boreham whereas he add no such  restrictive word to this devise to Sarah he say it be not necessary to cite  case because the principle be clear though they may differ in the application  of it and all the case prove it however he will mention one in point which be  that of reed v hallon in Mod a devise to r upon this condition that he pay  unto his two sister a year and the house be worth per annum this be hold to be  a burrow fee for I if there be a possibility of a loss though not very  probable that the devisee may be damnified it shall be construe a fee if a  devise l per annum to b pay S it be not likely that the devisee shall be  damnified but it be possible he may and judgement be give accord d questionBut  suppose that we be to fail in this first point yet as this be a mere  possessory action it be enough for the plaintiff if she can destroy the  defendant title it be not necessary in a mere possessory action for the  plaintiff to set out a title unless he be oblige to it by the defendant set  out one in himself which the defendant have not do in the present case he say  indeed in his rejoinder that the lord make a prior grant to Thomas Ives who  heir convey to he but this ought to have be special plead whereas here he have  only traverse the lord grant to the plaintiff by which traverse of the grant  only the legal operation of the grant itself be put in issue not the title of  the plaintiff he can not upon this traverse go into the title of Thomas Ives  or give evidence of any thing foreign and extrinsic to the point in issue if  he will have do this he shall have plead the matter special but upon the  present issue the plaintiff can not tell how to direct his evidence for the  defendant may as well claim under any other person as under Thomas Ives the  defendant can no more go into title upon this traverse than he can have do  upon the general issue in Hobart Humberton v Howgil issue be take upon the  seize of Thomas Howgil and the jury find that Thomas have make a feoff to John  Howgil but added that it be make by covin to defraud the plaintiff and other  creditor it be judge for the plaintiff for Thomas remain still seize as to the  creditor notwithstanding the feoff but if the issue have be take direct feoff  or not feoff it have be find against the plaintiff for in that case he must  avoid the feoff by covin especial plead for it be a feoff tiel quiel as you  can not plead non be factum general upon the statute of usury or the statute  of sheriff but here say the book the issue be general seize or not burrow er p  seize by the feoff and therefore the covin may be give in evidence when the  feoff be give in evidence so in the present case the issue be take on the  grant it be enough for we to prove the admission as state in our replication  which we do prove if the defendant can have invalidate it that ought to have  be do by special plead Mr Ashhurst contra burrow first the intention of the  testator be indeed a general rule for the construction of will in case where  it be plain and clear and positive and exclude every other implication but a  heir at law shall not be disinherit without a absolute necessary implication  Vaughan gardener v Sheldon it be true that where the 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 if it be a annual payment out of the thing  devise it will not create a fee without apt word because the devisee can not  lose by the devise this distinction be lie down in cro car Ansley v chapman  and in collier case   and here the value of the thing devise be S per annum  and the charge be only S per annum so that the devisee may pay it out of the  profit and be sure to have no loss and collier case S most express in point  that this be but a estate for life but the very word of this will be as  explicit as possible she pay thereout which circumstance distinguish this case  from that of reed v Hatton where the word only be that he pay unto his two  sister a year not say out of the profit possible that case may have be so  circumstance that the devisee stand a chance of be a loser here she certain  can not in the former devise to clement Boreham the testator express his  intention that it shall be only for his life and the two clause be exact  similar must be construe both alike there be nothing in this will from whence  it can be infer that the testator intend that the annuity which Sarah be to  pay to Elizabeth Boreham shall continue during Elizabeth life the contrary  seem rather to be imply for the testator give a like annuity to his grandson  Robert Boreham in the same word out of clement Borehams house which he have  express devise to clement for life only and it do not clear appear that Robert  Boreham who be to have a share in the reversion after clement death be the  same person as Robert Boreham the annuitant d question it be object that upon  this traverse nothing but the effect of the grant can be controvert a but the  plead in case of copyhold be different from the plead in case of freehold a  copyholder have in the eye of the law only a estate at will and in plead he  may allege a admittance as a grant but the lord be only a instrument he can  only transfer a estate burrow accord to the surrender and accord to his  authority he can not vary in person estate tenure or in any other collateral  point if he exceed his authority his admittance be good only pro tanto coke  complete copyholder p now if Sarah Boreham be as we say she be only tenant for  life she then have no estate which she can devise at her death but immediate  upon her death the heir of the testator Thomas Ives become entitle to the  reversion consequent the admission of the plaintiff and her sister Ellen  mention in the replication of the d July be in effect a grant of nothing the  defendant in his rejoinder therefore deny that the lord then grant the estate  in manner and form as be allege by the replication and show a title in himself  inconsistent with it he be oblige either to admit that title and derive under  it or to traverse it and have traverse the plaintiff he proper set up his own  this admittance be not in fact a grant of the thing itself it be incumbent  upon the plaintiff to show that it amount to a grant in point of law the case  of Humberton v Howgil in hob be distinguishable from this case for there the  feoff be not void but only voidable it will operate between the feoff and  feoff though not to defraud creditor but where the feoff be absolute void it  may be give in evidence upon a plea of non feoffavit bro Abr title general  issue p express so if a bind be void as the bind of a femecovert this may be  give in evidence upon non be factum plead but not where voidable only as the  bind of a infant so here the admission be a nullity it be no grant at all for  the party admit have no right therefore the defendant may with propriety say  that the lord make no such grant burrow er p 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 Mr leigh in reply saint insist that the  charge of the annuity to Elizabeth may have continue long than Sarah life and  therefore the devise may have be prejudicial to Sarah instead of beneficial if  it be to be construe only a lifeestate and he rely upon the case of Ansley v  chapman in cro car which he say prove strong for he and on that of reed v  Hatton in Mod and also now add another lee v Stephens et bee shower where a  devise to James conditional that he shall allow to Nicholas meat drink apparel  wash and lodging during his natural life be burrow adjudge a fee so the  present devise be intend he say 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  out of the estate not out of the rend and profit in that case of lee v  Stephens et all Pemberton take a diversity between those case where the money  to be pay be somewhat grant and secure before the death of the testator and  those where the charge be lie by the testator on the devisee dly the defendant  can not put the plaintiff to show any other title than the grant of the lord  in a possessory action a defendant can not drive a plaintiff to show a title  without first show one in himself the difference of plead in case of freehold  and in case of copyhold be only in point of form this grant of the lord be not  void and the defendant not have plead any bar to it he can not give any in  evidence this grant can be compare to the bind or to the feoff of a feme  covert for they be absolute nullity but this be not the case of Humberton v  Howgil in hob be in point Lord Mansfield be go and Mr justice denison absent  and the other two judge have some little doubt on the first point though none  on the second take time till Monday to consider of it and on Monday the that  of July Mr justice Wilmot declare their opinion in favour of the plaintiff he  premise that there be a apparent inconsistency in the state of the case as it  stand draw up for the opinion of the court for upon the face of the state case  it appear that Thomas Ives the devisor leave a daughter and granddaughter and  that the plaintiff be granddaughter to he and that the title be in her as his  heir at law or at least can not be in the defendant as claim under Thomas Ives  as his heir at law for Sarah mother Elizabeth Boreham be the testator own  daughter and here be no mention of any custom to exclude female nor do he ever  hear of such a custom he say in any manor and yet it be admit upon the case  that John Ives the testator brother be his heir accord to the custom and the  defendant claim under he as be so but if in fact he be not so there seem to be  a end of the defendant pretention burrow however two point be by the case  submit to the opinion of the court saint whether Sarah Boreham take a estate  in fee or for life only d whether in the latter case the defendant can take  advantage of it upon this issue join upon these plead on the first point he  own that he have at first have some doubt but that doubt be remove the  plaintiff at the trial derive her title under the will of Thomas Ives who  after have surrender to the use of his will devise to Sarah Boreham in fee as  the plaintiff insist which Sarah Boreham be admit and surrender to the use of  her will and devise the estate to her sister Elizabeth Boreham in fee  Elizabeth marry Baddeley and have two daughter by he videlicet the plaintiff  and her sister Ellen who take as coparceners and be admit accord and on ellen  death her moiety descend to the plaintiff and she be admit to it and so become  sole seize but the defendant insist that Thomas ives devise to Sarah Boreham  give her nothing more than a estate for life and consequent she have no power  to devise and h make his claim under the heir at law a he two state to be of  Thomas Ives the devisor burrow er p the plaintiff counsel insist that the  devise to Sarah Boreham must be construe to be a devise in fee but even if it  be not so but only a devise to her for life yet that the fact of the grant to  the plaintiff and her sister Ellen be the only matter now in issue and the  defendant can not under these plead take advantage of the plaintiff want of  title the first question be the material point and we be of opinion that Sarah  Boreham take a estate of inheritance the short of the case be that Thomas Ives  be seize of a house and of two copyhold tenement and have a daughter and  several grandchild make his will and devise the house to clement Boreham for  his life he pay thereout S a year to Robert Boreham the testator grandson and  after clement Borehams decease to be equal divide between Robert sabill and  Jeremiah burrow Boreham the child of Robert Boreham decease who be his three  grandson and he give his two copyhold tenement to Sarah Boreham she pay  thereout S a year to her sister Elizabeth Boreham then he give to two  granddaughter whether and mary Boreham and make several other bequest Mr  justice Wilmot after have thus state the will lie down this general position  that the intention of a testator be to be collect from the whole of his will  ex soft fleshy body parts will so as to leave the mind quite satisfy about  what the testator mean and as a will of land must be in write such collection  of the testator intention must be find upon the write itself this be the  principle the only difficulty be upon the application particular case serve  rather to obscure and confound than to illuminate question of this kind and no  case in the book exact tally with the present therefore the gentleman who have  argue this case have act very proper in mention only a few and have right put  it upon the intention of the testator now I collect that intention he say  first from the devise to clement Boreham and then from the devise to Sarah  Boreham he devise to clement express for and during the term of his natural  life and after his decease to Robert sabill and Jeremiah Boreham but in the  devise to Sarah he omit the word for and during her life which word it must be  suppose he will have insert in case he have intend to give her only a estate  for life because he have just before do so in the precede devise to clement it  be plain that by give it to her general without have any such restrictive word  as he have before add to his devise to clement that he mean to give her the  absolute property he mean to devise it ut good et catalla as a man  unacquainted with the law may very natural do and his make no limitation over  in this devise to Sarah be a additional and auxiliary proof of his intention  to give it to her absolute but the material circumstance be the condition he  have annex to her estate of pay a annuity to her sister Elizabeth Boreham it  be object that he have express direct the S a year to her sister Elizabeth to  be pay thereout and it be urge that this be equivalent to make it Payable out  of the rend and profit and I think it be so therefore this be not to be  consider as a charge burrow of a payment of a sum of money in gross but by a  subsequent clause he give to wit apiece to two other granddaughter absolute  therefore he probable mean that this granddaughter Elizabeth Boreham shall  have her S a year upon the same foot and that the provision he have think  proper to make for her shall be a last one to continue during her life and not  that she shall be leave to starve in case her sister Sarah shall happen to die  before her and consequent he must have intend that the annuity which Sarah be  to pay to her sister Elizabeth shall be a annuity during the life of Elizabeth  and if so then it follow that this charge of S a year to Elizabeth be just the  same thing as devise a annuity to her though it be put in the form of a  condition and Mr Ashhurst very candid admit that if this be a annuity for life  to Elizabeth it will make it a devise in fee to Sarah and as this can not be  effectuate without construe the inheritance to be give to Sarah it raise a  very violent presumption that the testator intend her a estate of inheritance  he just mention in deliver this part of his opinion the case of shaw and weigh  but the case that come near to the present he say though not exact up to V  post Frogmorton v holiday Friday first Feb burrow er p it be that of read v  hallon Mod where the estate be give upon this condition that the devisee pay  unto his two sister five pound a year and here the word amount to a condition  that she pay her sister S a year indeed that will do not direct it to be pay I  thereout as this do but that be a devise upon a condition to pay the annuity  for the word there print in a different letter from the rest of the case seem  to be the very identical word of John thatchers will and judgement be there  give for the defendant for that the estate be limit to the devisee and charge  with payment to the sister during their life do plain prove the intention of  the testator be that the devisee shall have a estate in feesimple Mr Ashhurst  endeavour to answer this case by that of Ansley v chapman in cro car where  William lock be bind in n obligation that shall be pay annual to his wife  during her life make his will and devise to his son and add that his devise to  they be to this purpose that they all shall bear part and partalike go out of  all his house and land towards the payment of my wife per annum during her  life which I be bind to pay and which of my son refuse to bear their part I  will that he or they shall enjoy no part of my bequest give unto they but my  gift give unto they shall go to the rest of my wellwilling son burrow the true  answer to that case be that the charge to the wife be not impose by the will  but the will give it a additional security for the testator stand previous  bind to pay the annuity Mr Ashhurst also contend that the annuity Payable to  Elizabeth Boreham will determine upon the death of Sarah Boreham the devisee  in the same manner as Robert Borehams annuity will determine upon the death of  clement but clement death only change Robert annuity into a interest in a  three part of the estate for Robert Boreham the annuitant upon clement and  Robert Boreham one of the three reversioners after clement decease seem to be  the same person but if not yet still there be a great difference between the  two devise the devise to clement be express for his life the devise to Sarah  have no such restrictive word I think the testator do not intend that  Elizabeth annuity shall drop with Sarah life if he have intend that he will  have express himself otherwise than he have do at all event the plaintiff seem  entitle to the estate on the d pointThe case be extreme clear it depend upon  the nature of copyhold estate former copyhold estate be make tenancies at will  a middle estate between freeholder and villain at length they acquire  stability by custom the lord be not entitle to his fine till admittance but  the admittance be mere form on a surrender of a copyhold the estate remain in  the surrender till admittance the lord by the custom have only a customary  power to make admittance secundum form et execution sursumredditionis and  therefore it be not like the case of feoff to use at commonlaw and although  the lord grant the land over by copy to another this be all without any  warrant for notwithstanding this the lord may make admittance accord to the  surrender and this shall be good and he who be admit shall be in by he who  make the surrender the estate must be accord to the surrender and not accord  to the admittance this be a know and common doctrine and be lie down full in  coke copyhold case   b the present admittance be upon a descent for the  plaintiff and her sister Ellen hold in coparcenary the defendant can traverse  nothing here but the grant burrow which the plaintiff have allege in her  replication and if she be not heir the admittance of her as such be void he  then state at large the case of Humberton v Howgil in hob and observe that  there be a material difference between a feoff and a grant in a feoff the  livery be a material part and transfer the possession if another person be in  possession both the feoff and livery will be void even though the feoff be by  deed and Mr Ashhursts case cite out of bro Abr general issue vide post see p  in margin v post noden v Griffiths et all that Nov accord right of way for  cattle fixed by law non To take back manner branch lin ult burrow er p apply  to this that where a feoff be total void it may be give in evidence upon a  plea of non feoffavit non to go away put the operation of the grant in  question if a man plead a grant from the crown under the great seal and the  other plead non to go away in this case the letter patent be confess but the  effect and operation of they be deny the effect of that issue of I non to go  away be that the crown have nothing in the land or that the tenement do not  pass by the letter patent so be hind case in   b and Eden case in   b express  a grant without right be absolute void if Sarah take a fee under the will then  the admission of the plaintiff in fee be good and all be right but if Sarah  take only a estate for life under the will then the grant to the plaintiff be  void and the grant to the defendant Leppingwell will be substantiate he claim  under the heir at law of the testator and Leppingwell will not in that case be  a wrongdoer therefore if it have rest on that I shall think that the validity  and operation of the grant will have come in question upon this issue on the  other hand if she take a estate of inheritance as we hold that she do this  total vary the case for then the plaintiff have a good title under her devise  and the subsequent descent and Leppingwell can have none under the heir at law  and possession alone will be sufficient for her to maintain this action  against Leppingwell though it will not have be so in case the real title have  be in Leppingwell RuleThat the postea be deliver to the plaintiff