or Proportion of the Thing. Here are no Words to vest the Inheritance in the Survivors; there are proper Words to give an Inheritance to the Children; and there are no such proper Words used to devest it out of them, and to give it to the Survivors upon the Decease of any one of them under Age and Unmarried. The Share or Part can only be the Thing it self, not the Estate in the Thing; and 'tis all consistent, if it be adjudged an Estate for Life.
Besides, in the last Clause, when he injoins the Heir to permit the Devisees to enjoy their Interests, and in case he do not discharge the Fee-Farm Rent, he gives the rest of his Shares to and amongst all other of his Children and their Heirs, equally to be divided among them. The Adding of the Word Heirs in this Clause, and omitting it in the Former, shews the [211] testator to have a different Meaning in the first from what he had in the last.
Judgment affirmed.—Then were cited several Cases to prove that totam illam partem carried only the Thing devised, not the Interest which the Devisor had therein, 3 Leon. 180, 181, 3 Cro. 52. 2 Leon. 156, 56. and 1 Roll's Abridg. tit. Estate, 835, 836. 1 Cro. 356. Latch 40. and as to the 150l. appointed to be paid for to bind Benjamin Apprentice, 'twas said, That the same was to issue out of the Rents and Profits. And therefore upon the whole, it was prayed, That the Judgment might be affirmed; and it was affirmed accordingly.
[212]Dominus Rex v. Episcop' Cestr', and Richard Pierse, Esq. [1697].
[16 Lds. Jo. 243.]
Knight how part of the Name. Matters traversable in Quare Impedit. Misrecitals where not to hurt Grants of the Crown. 2 Salk. 560. 2 Mod. 297. Winch. Intr. 864, 894.—Writ of Error upon a Judgment in a Quare Impedit in C. B. given for the King, and affirmed in B. R. The Case upon the Record was to this Effect: Mr. Attorney General declares, That Queen Elizabeth was seized of the Advowson of the Church of Bedall ut de uno grosso per se, ut de feodo & jure, in jure coronæ suæ Angliæ; and being so seized did, such a Day in the Twelfth Year of her Reign, present to the said Church then vacant John Tymms, as by the Inrollment of, &c. appears; that he was instituted and inducted; that Queen Elizabeth died seized of such her Estate of and in the Advowson aforesaid; that the same descended to Jac. 1. per quod he was seized of the Advowson of the said Church ut de uno grosso, &c. That the Church became void by the Death of Tymms, and that the King presented Dr. Wilson; that he was admitted, instituted, and inducted; that Jac. 1. died seized of such his Estate in the said Advowson, and the same descended to Car. 1. and he became seized; and the Church was again void by the Death of the then Incumbent; and Car. 1. presented Dr. Wickham; that Dr. Wickham died; that thereupon one John Pierse, not having any Right to present to the said Church, sed usurpando super dict' nuper Regem Car. 1. did present one Metcalfe, who was inducted; that Car. 1. died seized; that the Advowson descended to Car. 2. that the Church became void by the Death of Metcalfe; that Car. 2. presented Samways, who was inducted; that Car. 2. died seized, and the same descended to Jac. 2. who became seized ut de uno grosso, &c. who being so seized de regimine hujus regni Angliæ se dimisit, by which the said Advowson came to the present King and Queen, and they were, and are now seized of it ut de uno grosso, &c. That the Church became void by the Death of Samways, and it belongs to the King and Queen to present a fit Person; but the Defendants hinder them ad dampnum, &c.
The Bishop pleads, that he claims nothing in the Advowson, but as Ordinary, &c.
The other Defendant, Richard Pierse, pleads, That the King occasione præmissor' ipsum præd' Richardum impetere seu occasionare non debet, quia dicit, quod bene & verum est, quod Car. 1. devenit & fuit seisitus of the Advowson aforesaid ut de uno grosso per se, ut de feodo & jure, modo & forma præd' in narr' præd' specificat,
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