Elizabeth, Rebecca and Benjamin, and to each of them, her, and his Heirs, one full Thirty-sixth Part or Share of the said New-River Water of the King's Moiety; only they, and each of them proportionably to stand charged with the Payment of the Fee-Farm Rent due and Payable to the King's Majesty, and with the 100l. per Annum to Henry Middleton and his Heirs, and with no other Payment or Charge whatsoever; and to his Son Hezekiah, and his Heirs, one full Thirty-sixth Part or Share of the said New-River Water, the said Share being Part of the King's Moiety, to hold to him and his Heirs, with the Rents, Issues, and Profits thereof, from and immediately after his Decease, only proportionably to stand charged with the Payments of the Fee-Farm Rent due and payable to his Majesty, and with the aforesaid 100l. per Annum to the said Henry Middleton and his Heirs; and also charged with 150l. more towards binding out of his Brother Benjamin an Apprentice, when and so soon as he shall attain to the Age of sixteen Years, but with no other Charge or Payment whatsoever: And further Devises, That in case any of his said younger Children, Sons or Daughters, shall happen to die before he, she, or they should attain the full Age of Twenty-one Years, or be married, then and in either of the said Cases, [208] he did will and devise that Part or Share, with the Profits thereof, of him, her, or them, so deceasing as aforesaid, to the Survivor or Survivors of all his aforesaid younger Children, Share and Share alike, chargeable nevertheless with the several Payments as aforesaid, but liable to no other Charge or Payment whatsoever: And all the rest of his Shares in the said New-River Water, he gives to his eldest Son Hugh and his Heirs, so that he permit the rest of the Shares to be enjoyed according to his Will, and discharge the Fee Farm Rent, with which they are charged: And in case he shall not do so, he gives the said Shares, he should otherwise enjoy by the Will, to and amongst all other his Children and their Heirs, equally to be divided amongst them.
Simon Middleton died seized the 20 July 1679. and after his Death, Rebecca having attained her Age of 21 Years died. Hezekiah, after Seisin of his Share, died under 21 Years, and unmarried. Anne, one of the Five younger Children (which Five claimed the said Hezekiah's Share) by Lease and Release settles the fifth Part of the Share, late her Brother Hezekiah's, upon herself and the Plaintiff Bennet Swayne, (whom she afterwards married,) and after to the Children that should be between them, Remainder to the Right Heirs of the Survivor of them two. Anne died without Issue; and Bennet Swayne after her Death received the Profits of that fifth Part of Hezekiah's Share, to the Value of 20l. That Benjamin Middleton was the only Brother of the whole Blood, and Heir of Hezekiah; Et si, &c.
Upon the arguing of this special Verdict, the Court below was of Opinion, That Benjamin was intitled to Anne's Share of Hezekiah's Part, as he was Brother and Heir of Hezekiah, viz. That by the Will, the Fee-simple and Inheritance of a Thirty-sixth Part or Share of the New-River Water was given to, and vested in each of the younger Children; and that on the Death of Hezekiah, one of the younger Children, unmarried, under One and Twenty Years of Age, by the Clause (whereby the Shares of the younger Children dying before Twenty-one, and unmarried, are given to the surviving Children, Share and Share alike) the five Survivors became Tenants in Common, and each was seized of a fifth Part only for Life, and not in Fee: That the Reversion of Hezekiah's Share, expectant on the Deaths of the younger Children, descended to the said Benjamin his Brother and Heir; and that he on the Death of Anne ought to have enjoyed that fifth Part in Possession; and therefore the Profits of it received by Swayne were due to Benjamin, and Judgment accordingly given there for Benjamin.
Argument for the Plaintiff in Error.—And now it was argued, That this Judgment was erroneous, for that by Virtue of the said Devise, the said Anne had an Inheritance in her Part of Hezekiah's Share, for these Reasons. 1. It is well known and agreed, That a Part or Share in the New River is an Inheritance, and therefore the Devise of all that Part or Share to any Person, is a Devise of that Part and [209] Share to such Person and his Heirs; and is as much, as if a Person being seized in Fee of Lands should say in his Will, he Devises all his Estate in those Lands to J. S. it could be no Question, but such a Devise would convey the said Lands to such Devisee and his Heirs. 2. The Share of Hezekiah was given to him and his Heirs, proportionably charged with the Payment of the Fee-Farm
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