not be such as the Appellant would pretend, i.e. that she meant to give her Estate to the Respondent and others, only in case the Child she then went with should be still-born, or if born alive, should die with the Mother in her lying in, for these Reasons: First, For that she was so far from apprehending that the Child would either be still-born, or if born alive, would die as soon as her self, or in her lying in; that she expected 'twould live, and as she hoped, to full Age, for she takes particular Care of its Education; and earnestly recommends the same to the now Appellant, and others; prays God to bless it, and not forsake it; and hoped that all the Relations on the Father's side would, for the Father's sake, do it all the Services it should stand in need of.
Then taking it that the Testatrix did expect the Child to outlive her, (as unquestionably she did) if her Meaning had been such as the Appellant hath put upon her Words, the Way to have it sure fixt to the Child, and then to the Appellant, had been to [198] have made no Will at all; because if the Child survived the Mother but a Day, or an Hour, or ever so little, the Law had vested the whole, first in the Child in its own Right, and upon the Child's Decease, in the Appellant, as Administratrix to the Child.
Suppose the Child had outlived the Mother for a Month, or the like, what Interpretation could have been put upon this Will? All their Arguments will hold as well to a Month, Week or Days surviving of the Mother, as to this of two Years; and therefore it must be thus construed to be her Intent, that the Devises over should take Effect, if the Child should not live to an Age of Maturity, and Power of Disposition.
And as to the Pretence of the Child's Starving in the mean Time, there neither is, nor can be any Weight in that, for the Interest and Produce of the whole, during all that Time, must remain and be to and for the Benefit of the Child. Wherefore, upon the whole Matter, 'twas prayed that the Decree should be affirmed; and it was affirmed.
[199] Philip Jermyn and Sarah Uxor ejus,—Plaintiffs; v. Mary Orchard Widow,—Defendant [1695].
[15 Lds. Jo. 688.]
Assignment of a Term to B. after the Death of A. for the Residue thereof, good.—Writ of Error to reverse a Judgment of Reversal given in the Exchequer Chamber, upon a Judgment given in the King's Bench for the Plaintiffs, in an Action of Trespass for the mean Profits, after a Recovery in Ejectment, and Possession had thereupon: The Case was this upon Record; The Plaintiffs declare that the Defendant, 1 Sept. 1672. their Close, &c. vi & armis, &c. did break, and upon the Possession of the Plaintiff did enter, and the Plaintiffs from their Possession did expel and remove, and them so being removed and expelled for a long Time, viz. from the said 1 Sept. 1672. to the Time of exhibiting the Bill, viz. 6 May 1685. did hold out from the same, by which they lost the Profits thereof, &c. et al' Enormia, &c. The Defendant by Plea takes Issue as to the Force, and Issue thereon; and as to Part of the Trespass, pleads the Statute of Limitations; and as to the Residue of the Trespass, pleads that Sir William Portman made a Lease to one Trowbridge for 1000 Years, and by mesne Assignments derives a Title down to Thomas Nicholas; and that he in his Life-Time, by Indenture, assigned to the Defendant.
The Plaintiffs Reply, and as to the first Part of the Plea, viz. of the Statute of Limitations, they demur; and, as to the other Part of the Plea, they tender a Traverse, and deny that Thomas Nicholas did assign the Premisses to the Defendant.
The Defendant joins in Demurrer, as to the first Part of the Plea, viz. the Statute of Limitations: And as to the other Part, she takes Issue upon the Traverse; which Issue is joined; and a Venire awarded tam ad triand' the two Issues, quam ad inquirend' de dampnis, upon the Demurrer.
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