Robert Davis v. Dr. John Speed [1698].
[16 Lds. Jo. 259. See Sanders on Uses, i. 144-146.]
Uses upon a Fine of the Wife's Lands to the Heirs of the Husband, he dying before the Wife. [2] Salk. 675. 4 Mod. 153. Skin. 351. The Case upon a special Verdict.—Writ of Error on a Judgment in Ejectment in the King's Bench, for certain Lands in Hampshire. The Declaration was upon the Demise of Francis Cockey: The Verdict finds, that William Horne and Anne his Wife were seized of the Lands in Question in their Demesne as of Fee, in Right of the Wife; that they made and executed a Deed, Covenanting to Levy a Fine thereof, to the Use of the Heirs of the said William Horne, lawfully begot-[105]-ten and to be begotten on the Body of the said Anne his Wife; and for Default of such Issue, then to the Use of the right Heirs of the said William Horne for ever; and a Fine was levied accordingly to these Uses; that William and Anne were seised prout lex postulat; that they had Issue William Horne their Son, who died without Issue in the Life of William and Anne; that she died; and William the Father and Husband survived her; that then he died without Issue; that the Lessor of the Plaintiff is Sister and Heir of the said William Horne; that after his Death she entred, and was seised prout Lex postulat; that Elizabeth, Johanna and others, were Co-heirs of the said Anne; that their Estate and Interest came by mean Conveyances to the Defendant Speed; that he was seised prout Lex postulat; that the Lessor of the Plaintiff entred. and Ousted the said Speed, and made the Demise in the Declaration; and that the Plaintiff entered and was possessed, till the Defendant entered upon him, and Ousted him: And if it shall appear to the Court, that the Defendant's Entry was Lawful, they find the Defendant not Guilty: And if, &c. Upon this special Verdict, Judgment was given in B.R. for the Defendant.
Argument for Plaintiff in Error. A Person capable when the Contingency happens.—And now it was argued on the Behalf of the Plaintiff in the Writ of Error, that this Judgment was Erroneous, and ought to be Reversed: For that these Lands belonged to the Heirs of the Husband by Force of this Deed and Fine. That this was in the Case of an Use, which was to be construed as much according to the Intent of the Parties as a Will. That if by any Construction that Intent could be fulfilled, it ought. That the Intent of the Parties here was plain to give this Estate to the Husband and his Heirs; that Uses are to be governed by Equity, and that therefore the Meaning of the Persons concerned was to be pursued. That the Woman intended to take Nothing herself; nor to reserve any Thing, but to part with the Whole. That here was an Use by Implication in the Husband; tho' none could result back to the Husband, because he had none before: But that in this Case, as in that of a Will, an Use might by Implication very well be raised to the Husband; and then this might be good by way of Remainder after the Death of her Husband; or create an Estate-Tail in him by coupling the Use implied to him for Life with that to the Heirs of his Body: And that if it were not so, then that it was good as a springing contingent Use to the Heirs of the Body of the Husband, &c. and that in the mean Time till that Contingency happened, the same was to the Use of the Wife and her Heirs: And that this Construction contradicted no Rule of Law. That it was no more than was allowed in Case of a Will, by way of Executory Devise, according to Pell and Brown's Case in 2 Cro. that the Estate should remain in the Wife and her Heirs, during the Life of the Husband. That this was never designed to take effect as an Use to be vested immediately: And it was no more than if the Deed had declared the Use to be [106] after the Expiration of twenty Years, or at other future Time, to the Heirs of the Body of William Horne; and for Default of such Issue, to his right Heirs; and that such Time had happened; the Use would have vested in the Heirs of his Body, or in his right Heirs, if he had died before that Time. That 'tis true, there must be a Person capable of taking at the Time when the Contingency happens: And so there was here, at the Time of his Death. That it could never be intended that the Heirs should take immediately; for that then there was no such Person in being, there could be no Heirs during his Life. That this was like the Case of Webb and Sir Cæsar Cranmer, where the Trust of the Estate, during the Life of the Duke of
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