burrow GOODTITLE ex dismiss paul esquire versus paul spinster Friday saint Nov  SC black and cite brown see also durn land at c in tenure of a b devise by  will comprise wood and timber except in the lease be word of additional  description upon the trial of a ejectment before Lord Mansfield at Hertford  assize a case be reserve for the opinion of the court and the single question  be whether certain woodland pass by the will of the late dr Paul to his widow  or descend to his son and heir as undevised the ejectment be bring by the son  for the recovery of they by the description of twenty acre of woodland in the  parish of Bovington in the county of Hertford the substance of the case state  be that dr Paul be seize of diverse freehold and copyhold estate and among  other of the premise in question make his will date that October in manner  follow as to my worldly estate dispose of it in manner followingThen he leaves  fortune to his two daughter and to his son George the lessor of the plaintiff  who be his only son and heir for mourning he then give all his stock security  c c to his wife then the will proceed thus whereas I be entitle to a leasehold  estate be a house and yard in avemary lane I give the same to my dear wife I  have purchase a barn and field in reversion expectant on the death of lady  William of Mr Ralph day I give and devise the same to my dear wife subject to  her sole disposal I give devise and bequeathe my two farm purchase of the  trustee of his late grace of chandos in the parish of little Stanmore one in  the occupation of Henry grub the other in the occupation late of Mr Julle to  my dear wife subject to her disposal by will or by deed or sale give devise  and bequeathe all my estate in fleet street consist of house in Johnson court  boar headcourt the bolt and tun inn and bolt and tun passage to my dear wife  with all the right and property of enjoy they and also my estate in saint mary  Axe in the occupation of Mr Jacob castle in as full and ample a manner as I  enjoy the same I give devise and bequeathe my freehold and copyhold estate in  the parish of Aldenham in the tenure of John wrench and my freehold house and  orchard in the back lane of Bushey to my dear wife subject to her sole  disposal by will deed or sale as also my copyhold land in Shedlington in  Bedfordshire I give devise and bequeathe my dwellinghouse and the land  therewith hold in Bushey and the farm in the tenure burrow of John Stains  together with my blacksmith shop in the tenure of James Wilking and the little  house adjoin to my dear wife in as full and ample manner as en joy the same  and subject to her disposal as effectual as I have power to give I also give  my dear wife my estate at ChainGate in Southwark convey from my daughter  Valentine snow I give and devise to my dear wife my farm at Bovington in the  tenure of John smith subject to her disposal in as full and absolute manner as  can dispose of the same if live last I make my dear wife Susannah Paul my sole  executrix and give devise and grant to her and her heir all my estate real and  personal freehold and copyhold mention in this my will and I give her full  burrow er p power to sell give or grant the same in feesimple in as ample a  manner as I can do if live write this with my own hand be in good health that  in the year Jonathan Hammond as heir to his father be admit to the farm at  Bovington in the above will mention for which one quitrent be reserve and one  heriot and his admission be as follow videlicet have curian baron Henshaw  Halsey arm domini manor pillage ibidem tent a day Martris et Mercury videlicet  Decimus et the eleventh a day June year royal power domini our men george d g  m Br Fr et Scotland king f d c quarto annoq domini in person carolo Pultney  armigero tunc seneschallo ibidem ad haec present be per homage quod Jonathan  Hammond alias Cooper senior de great Marlow in come buck noble One customar  tenent what manor who de lord manner pillage to hold Himself et heir nest per  copy rotulorum what curiae One messuagium sive property et strong tent per  copy rotulorum in parochian de Bovendon peremptory or urgent call great  Shantocks per one year old return S d to go ind seisitus ration ind to fall  upon lord pro heriotto One equus valor S et quod Jonathan Hammond alias Cooper  de great Marlow pillage noble be he thread et haeres et full lifetime who  indeed Jonathan Hammond alias Cooper presence hic in curian to strive for a  domini manor pillage see to send to tenent ad send ahead or forward predict  cum the dawn appurtenance who dominus prediction per seneschallum suum to go  away ind seisinam per twig habend et tenant premissa pillage cum the dawn  appurtenance a saying beforehand Jonathan Hammond alias Cooper heir et assign  nest imperpetuum per vergan ad will lord second experience manor burrow  pillage per one year old return S d et alian the condition of a slave ind  prius debit et de jure consue deditq lord pro fine pro tali position such ind  habend S d et admission be ind to hold et fecit lord faithfulness that the say  Jonathan Hammond keep the whole of the estate to which he be so admit in his  own hand till the that of march and then by lease of that date demise to  William smith his son all that message or tenement and farm with all and every  the close field piece and parcel of arable land lie meadow and pasture ground  with their appurtenance thereto belong or appertain situate lie and be in the  parish of Bovingdon in the county of Hertford and which say message or  tenement and farm be common call or know by the name of great Shantocks farm  and be now in the possession of John Harding his undertenant or assign or by  whatsoever other name the same now be or bath be call or know and also all  house outhouse edifice building barn stable yard orchard garden backsides way  water common profit and commodity hereditament and appurtenance whatsoever to  the say intend to be hereby demise message or tenement or farm land and  premise belong or appertain or therewith let or enjoy or accept or take as  part or parcel thereof except and always reserve out of the say demise unto  the say Jonathan Hammond his heir and assign all and all manner of wood  woodground hedgerow timber and tree whatsoever with the lop top and shroud of  the same other than the lop of pollardtrees and other than fruittree for their  fruit only now stand or grow or be or which shall at any time or time  hereafter stand or be in or upon the demise premise or any part thereof with  free liberty of ingress egress and regress to and for the say Jonathan Hammond  his heir and assign wit workman servant horse cart and carriage at all  seasonable time to fall sell cut down hue out have take carry and dispose of  the say wood underwood hedgerow timber and tree at their pleasure do no wilful  spoil or damage to the say William smith and John smith their executor  administrator or assign their stand corn or mow grass to hold the say message  or tenement and farm arable land lie meadow and pasture ground except before  except unto the say William smith and John smith their executor administrator  and assign from the feastday of saint Michael the Archangel then next ensue  for three year at per annum that in the year dr Paul purchase from the say  Jonathan Hammond all the premise to which the say Jonathan Hammond have be  admit as aforesaid of which premise a plan have be make in the year which  after the purchase be hang up by dr Paul in his hall that this plan be entitle  a exact draught of the estate and farm of dr George Paul call Shantocks lie in  the parish of Bovingdon in the county burrow of Hertford about three mile east  from Chesham four burrow er p south from berkhampstead four southwest from  Hempstead and about twentytwo northwest from London contain  ARP Arable171212Wood that William smith the father and John smith the son  without any new lease enjoy what have be so demise by the say Jonathan Hammond  and dr Paul keep in his own hand till the time of his death the premise except  which consist of hedgerow which in some place be three pole thick and in other  less and only two and of chalk dell where wood have grow tip after the chalk  have be take away entire surround by the land in the tenure of the tenant and  also of one entire wood of six acre entire enclose by the land in the tenure  of the tenant or by the land of other person the question be whether the  premise so except in the lease to smith and so occupy by dr Paul himself at  the time of make his will be by such will devise to his widow Mr eliab Harvey  be of counsel for the plaintiff the heir at law and argue that the wood which  be except out of the lease from Mr Jonathan Hammond to William smith and John  smith and be occupy by dr Paul himself do not pass to the widow by this will  but descend to the plaintiff his son and heir as be undevised at all he urge  that the plaintiff case be entitle to a favourable construction as he appear  to be a only son and heir at law disinherit by his father without any apparent  reason perhaps from caprice only and therefore mere presumptive argument ought  not to hurt he he observe that the word of this devise be I give to my wife my  farm at Bovingdon in the tenure of John smith but the testator do not say all  my farm at Bovingdon nor do he express it and in the tenure of John smith it  be only my farm at Bovingdon in the tenure of I S the court will not in  prejudice to the heir at law reject those word in the tenure of I S which make  the description of what the testator mean to devise to his wife for the  expression in the first part of the will be not certain but doubtful burrow he  cite Bacon maxim of the law cro James Tuttesham v Robert cro car chamberlain v  turner Plowd b Wrotesley v Adam and shaw v bull case in b r tempt W pa and  pray to have the postea deliver to the plaintiff Mr Thomas clerk of Lincoln  inn be for the defendant but the court save he the trouble of speak Lord  Mansfield this be too plain a case to need any thing to be say on the  defendant side I never deny make a case for the opinion of the court whenever  it be ask of I by the counsel for either party at nisi prius provide that the  case be set down to be argue within four day but I do and still do think the  present case to be a very plain one I be sorry that dr Paul have not think fit  to make a better provision for his only son but he certain mean and intend to  give all his estate to his wife he not only express this intention as to all  his estate freehold and copyhold general but he likewise enumerate the  particular he give they all to her absolute and he likewise give her a power  to dispose of they in as full and ample a manner as he himself can do if live  he put into his will all possible word that can give every thing to her the  question turn only upon the description of the thing mean to be here give the  word in the tenure of John smith can be understand as a restriction they be a  additional description which will not vitiate any thing that be sufficient  describe before he have before give her his farm at Bovingdon which have go at  one rend and have be use and pass as one entire thing and for which pa Plowden  b Wrotesley v Adam send for burrow er p one entire quitrent have be pay and he  add as a further description that it be in the tenure of John smith what be  not in lease to smith be to be consider in two light videlicet hedgerow tree  and chalkdell tree and also six acre of wood but the hedgerow and chalkdells  themselves be actual in the tenure of John smith though the tree be except as  to the six acre of woodlandindeed the soil be except out of smith lease as  well as the tree but burrow dr Paul give his wife a power to dispose of the  farm in as full and absolute a manner as he himself can dispose of the same if  live and he himself may certain dispose of the soil of these six acre it be  manifest intend that the whole farm shall pass by this will and the testator  never think of any restriction of his devise but mean these word in the tenure  of I S  only as a additional and full description of a thing sufficient  ascertain before Mr just denison concur that the testator intention certain be  to devise the whole farm to his wife and that he never think of the exception  of the woodland nor intend to restrain the devise and that the word in the  tenure of I S be only a additional description Mr just Wilmot be of the same  opinion and he likewise think it a clear case the testator mean this as a  additional description and not as a restriction he certain do not intend to  die intestate as to any part of his estate the word in the tenure of I S be  not to be consider as word of limitation or restraint my farm at Bovingdon be  all my farm at b if the testator have mean otherwise he will have specify that  part of it which he mean to exclude and except out of this devise but this  devise of the farm be tantamount to his devise it by the specific name of  Shantacks farm the nature of the property show it the very exception in the  lease indicate that it be intend to keep these except part connect with the  farm and not sever from it and the testator can never mean to give mrs Paul  the lop and mast of the pollard and the fruit of the fruittree and not the  tree themselves and yet she will upon this will be entitle to these as appear  full in Richard Lifords case   per cur unanimous let there be judgement for  the defendant