This question was first argued in the Queen's Bench, where judgment was given for the defendant, against the opinion of the Lord Chief Justice Holt; and afterwards, upon a writ of error in the Exchequer Chamber, where the judgment was affirmed, against the opinion of the Lord Chief Justice Trevor.
The plaintiff thereupon brought a writ of error in Parliament; and in support of his title as lessee of Robert, Thomas, and Christopher Dix, the two following objections were endeavoured (S. Harcourt, St. J. Broderick) to be obviated: 1st, That the devise of the Bell Tavern, stood connected with the clause which immediately preceded it; and that the testatrix had thereby given her right, title, and interest, in several leasehold estates, to her son John; and if those words should be considered as tacked to the Bell Tavern, the clause, being so construed, might pass the reversion in fee-simple, to John, without adding the word heirs. To this it was answered, that the clause immediately preceding, related only to the leasehold estates; and there was no colour for connecting any part of it with the devise of the Bell Tavern, which was a separate and independent clause; that such a construction was contrary to the plain and grammatical sense of the words themselves; for the words of and in, were omitted in the disposition of the Bell Tavern; and that it was a very harsh exposition of a will, to turn a paragraph into nonsense, on purpose to avoid the plain and natural signification of the words; and in prejudice to an heir at law. 2d. That unless such construction was put upon the will, the devise of the Bell Tavern would have no operation; for John Billingsly the son having an estate tail therein before, to give him an estate for his life only, was of no avail, and would be a bequest totally fruitless. [10] And to this it was answered, that to pass lands by a will, there must be sufficient words, in writing, to dispose of the estate, without regarding things foreign to the will itself; for if there be not words, the estate remains undevised, and is left to the disposition of law. Now, it was plain, that by the strict letter of the will, an estate for life only passed to John Billingsly the son, by the devise to him of the Bell Tavern; and this devise was not wholly useless and ineffectual, since, if there was any slip or defect in the former settlement, it would operate as a confirmation of this estate, during his life, and so bind the heir at law of the testatrix from controverting his title. And it was likewise to be considered, that this bequest did operate upon the leasehold part of the Bell Tavern, and so might have its full effect that way; but however, there being no words in the clause devising the Bell Tavern, which, in common construction of law, upon a will, could pass a greater estate than for life; and it being an established rule in law, that an heir shall not be disinherited by a will, without express words, shewing an intent to pass the whole inheritance, it was humbly conceived the plaintiff had a good title, and that judgment ought to have been given for him in the courts below.
On the other side it was insisted (T. Parker, J. Ward), that John Billingsly the son, took a fee-simple by the will; because Hannah had given him all her right and title in the Bell Tavern, which was a fee; and it was very harsh to say, that she gave him this house during his life only, when she herself had nothing to do with it, till after his death. That by her devising it to him, she certainly intended him something by that devise; but if he took no more by the will, than an estate for life, he had really nothing given him; because he had more than an estate for life, viz, an estate tail in it, before. And therefore it was hoped, that the two judgments already given, would be affirmed, with costs; and not be overthrown by an exposition, which was meant only to make an express and positive devise of the house in question, to have no effect, and signify nothing at all.
And accordingly, after hearing counsel on this writ of error, it was ordered and adjudged, that the judgment given in the Court of Queen's Bench, and the affirmance thereof in the Exchequer Chamber, should be affirmed; and that the record should be remitted, to the end execution might be had thereupon, as if no such writ of error had been brought into the house. (Jour. vol. 18. p. 47.)
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