Volume IX. 1846.

[Thursday,

February 12th,

1846 (a).]

DOE on the demise of WILLIAM ANGELL against
BENEDICT JOHN ANGELL ANGELL.

Although the EJECTMENT for land in Surrey.

general rule is,

that, to take by purchase under

On the trial, before Tindal C. J., at the Surrey

a devise to the summer assizes, 1843, it appeared that John Angell had died seised in fee of the land in 1784. The property

male heirs of W., the taker

must be both a male and very heir, yet such rule may be controuled where the rest of the devise shews that the

devisor intends

to give the pre

ference to a male descendant of

W., tracing his

was then under lease from the devisor to one Weston for a term of sixty one years, which expired at Michaelmas 1837. The lessor of the plaintiff claimed under the will of the said John Angell, and commenced this action of ejectment in the year 1837, immediately after the expiration of the lease, and within five years after the passing

of stat. 3 & 4 W. 4. c. 27 (b). The material part of the

descent entirely will was as follows.

through males,

over a descend

ant, male or female, who

should be heir

"In the name of God, Amen. September the 21st

1774. I, John Angell, of” &c. “ Item: I give to the male

general of W. heirs, if any such there be, of William Angell, the first

but not trace a

descent entirely

through males: and the descendant, so apparently preferred, will take to the exclusion of the heirs general of W. and of the devisor.

As where, to the words "male heirs of W.," was added "if any such there be," and the rest of the devise shewed that the devisor knew that the heir general of W., who traced through a female, was a male, and yet a remainder was limited over to him upon failure of male heirs of W.; and the devisor added that the males were to take place first, as long as there were any, through every descent; and also added, to the words of purchase "male heirs of W., if any such there be," the words of limitation "and their male heirs for ever."

J., seised in fee, leased for sixty one years, for a term expiring in 1837, within five years after the passing of stat. 3 & 4 W. 4. c. 27. (24th July 1833). From J.'s death, which happened more than twenty years before the passing of the act, B. received the rent reserved on the lease, down to its expiration; and he then entered into possession: and afterwards W., within five years after the passing of the act, brought ejectment against B., claiming to be entitled, as J.'s devisee, immediately on J.'s death.

Held that, under sect. 9, the action would have been barred by B.'s receipt of the rent; but that it was preserved by sect. 15 for five years after the passing of the act.

(a) The publication of this report has been unavoidably postponed. (b) Royal Assent, 24th July, 1833.

1846.

Doɛ dem.
ANGELL

V.

ANGELL.

purchaser at Crowhurst, and father of my great grand- Queen's Bench. father, John Angell Esquire, and their male heirs for ever, all my lands and estates, both real and personal, in Surrey, Kent and Sussex; nevertheless, subject and liable to such conditions as shall be hereafter mentioned, and shall not be otherwise disposed of and given. And, if there be no male heirs or descendants of the same William, then I give those estates, as specified, to the male heirs of William, or the first Angell, of Northamptonshire, in order as they shall be found or made apparent. And, if there be none of those in being, or that shall be apparent, and plainly and legally make themselves out to be Angells, and so related and descended, I then give all my estates whatsoever, both real and personal, to William (a) Browne Esquire, grandson to Mrs. Frances, the wife of Benedick Browne Esquire, who was an Angell, and to his male heirs for ever, excepting the issue of his aunt Katherine, who flung herself away in marriage; notwithstanding, under such conditions, and with such restrictions and engagements, and liable to such settlements and enfeoffments, as I shall here, or at any time or any way hereafter, make them subject to. And I desire notice may be taken that, in all these givings, my meaning is that the estates shall never be divided, but always be in one hand, and the males to take place first, so long as there are any, through every descent. Whosoever is in possession of them, if they be not Angells, shall alter their names to Angell, and always write and call themselves by that name, without any alias or addition of any other name; and they shall always bear the

(a) See post, p. 336., note (d).

1846.

Dog dem.
ANGELL

V.

ANGELL.

Volume IX. Angells' arms, with all their quarterings, and no other. And, if it shall so fall out that the heirs of the Brownes should cease and fail, then my will is that the male heirs of my great aunt Marriott (a) shall successively take place, the males first, and be entitled to the aforesaid estates. And, on failure of the Maryotts (b), they shall descend to the male heirs of Doctor Lucy, Bishop of St. David's, if any he had, by Martha his wife, my great aunt, second daughter to my great grandmother; and, in default of the Lucys, then to the male heirs of my great aunt Hocknall; and afterwards to my right heirs, whosoever they shall be, in the male line. And my will is that, if any Browne, or any other person, to whom these estates should come, offer to pawn, or sell, or mortgage any part of them, on manifestation (c) proof thereof, the next in succession shall immediately be entitled to and take possession of the whole; and the same shall be if they do not forthwith alter their names as required, or if they should in anywise contest in law or offer to oppose this my will, especially in regard to the copyhold estate in Lambeth, or neglect or be deficient in the performance of what I desire in it." "John Angell (L. s.). September 26th, 1775. Signed and sealed," &c. (Attestation.)

The lessor of the plaintiff claimed as the heir male of William Angell, the first purchaser of Crowhurst, and offered evidence by which he traced his descent, entirely through males, from Thomas, the ninth son (sixth of those who survived their father) of John Angell, called The Caterer, who was the eldest son of William, the first purchaser of Crowhurst, according to the following pedigree.

Volume IX. 1846.

Doɛ dem.
ANGELL

V.

ANGELL.

The defendant was, as appears by this pedigree, the heir general of the devisor, and also of William Angell, the first purchaser of Crowhurst, tracing his descent through a female, Frances Browne, the daughter of William Angell, third son of John The Caterer. Upon the devisor's death, in 1784, the father of the defendant had entered into possession of the estates, and changed his name to Angell, and had received the rent of the land in question, reserved by the lease, until his death in 1786, from which time the rent was received by the present defendant until the expiration of the lease in 1837, and he thenceforth continued in possession of the property till the commencement of the action.

It was contended, on behalf of the defendant, that, supposing the pedigree of the lessor of the plaintiff to be established, he must still fail, as, first, under the words of the will, it was necessary that a person claiming as heir male should be heir general to William, the first purchaser, as well as male; and, secondly, the remedy was barred by stat. 3 & 4 W. 4. c. 27. s. 9. The defendant also denied that the lessor of the plaintiff had proved his descent. Leave was reserved to move to enter a nonsuit on the points of law; and the case was left to the jury on the facts. Verdict for plaintiff.

In Michaelmas Term, 1843, Thesiger obtained a rule nisi for a nonsuit, or for a new trial on the ground that the verdict was against the evidence.

Shee Serjt., Petersdorff and Bovill shewed cause (a). First, as to the effect of the devise. The will contains a

(a) The argument on the points of law, reported in the text, was heard in Trinity and Michaelmas terms (June 8th and November 14th and 18th), 1844, by Lord Denman C. J., Patteson, Williams and Coleridge Js.