Volume LX. 1846. Doɛ dem. V. ANGELL. void for uncertainty. That was a ground upon which some of the judges proceeded in Doe dem. Winter v. Perratt (a) and it is discussed by Lord Eldon in Oddie v. Woodford (b). Or it may be considered that the devisor's mind was vacillating. [Coleridge J. Then his last expression prevails. Patteson J. If "male heirs' mean any heirs, why should he say "if any such there be?"]. It may also be asked, if he means males, why it is afterwards said that males are to take before females, or the issue of the aunt Katherine? Therefore the rule applies, that, where the devise is unexplained or unqualified, the words must be construed in their primary sense; 1 Powell on Dev., 312, 313. Here, then, the word "heirs" must primâ facie be applied in its primary sense. Withy v. Mangles (c) illustrates the general rule, that words must have their legal effect, even though there be strong ground for suspecting that the devisor used them in ignorance of the principle upon which they would be construed. There are, then, three points of construction in favour of the defendant. 1. The devise describes, not the heirs of the body, but the person answering the description of male heir and then he must be very heir: or, 2. Suppose the words to be construed as heirs male of the body, as words of purchase, the defendant's father, who was both heir of the body and male, would be entitled : or, 3. The devise was void for uncertainty, and the defendant is entitled as heir at law. Secondly, the remedy is barred by stat. 3 & 4 W. 4. c. 27. Sect. 9 is retrospective in all its expressions, and applies to the present case; Culley v. Doe dem. (a) 10 Bing. 198., 6 M. & G. 314.; S. C. 9 Cl. & Fin, 606. 1847. Dog dem. V. ANGELI,. Taylerson (a) is an authority for construing the limita- Queen's Bench. tion clauses retrospectively. [Patteson J. The difficulty I have felt, and do feel, is upon the words "the right" "to bring an action." The mere payment by a tenant of rent to the wrong person gives no right to assert the title; and how could the right accrue then?] It will accrue, if the tenant, on demand of rent by the rightful owner, refuses. [Patteson J. But that is not said.] Payment of rent to another will be a disclaimer: and, after notice of it, the time of limitation runs ; Hovenden v. Lord Annesley (b), Cholmondeley v. Clinton (c) in Chancery, and Cholmondeley v. Clinton (d) in the House of Lords. [Coleridge J. Are not the words bound up with "after the determination of such lease?" Patteson J. The word "rent" is used in very different senses in this section.] The words at the end of the section are unambiguous. Next, this case does not fall within the protection of sect. 15. “Adverse” must mean adverse according to the rights declared in the statute itself. The words of that section are not "not be adverse," but "shall not" "have been adverse to the right or title of the person claiming to be entitled thereto." [Patteson J. Entitled to what? After the expiration of the lease there could be no receipt of rent; and during the lease the landlord would not be entitled to the possession. The possession of the tenant here was not adverse; he held under a good lease. Do you say the landlord is in receipt of the profits? Must you not construe sect. 15 with sect 9? In sect. 9 "receipt of the profits" does not mean re (a) 11 A. & E. 1008. (b) 2 Schoa. & Lef. 607, 621, 624, 625. (d) 4 Bligh, 1. 99. Volu 1846. Xceipt by the landlord, but by the tenant.] In sect. 35 it DoE dem. V. ANGELL seems to mean receipt by the landlord. Sect. 9 is inapplicable where no rent is reserved; Ex parte Jones (a): the nonpayment of rent to the lessor is not adverse as against him, under sect. 2 or 9, unless it be paid to another; Doe dem. Davy v. Oxenham (b), Chadwick v. Broadwood (c). In all these cases the question has turned on the receipt of rent reserved. Now, if sect. 15 speaks of "receipt of the profits," or "receipt of the rent," with reference to the landlord, there clearly has here been an adverse receipt by the Brownes. [Patteson J. Sect. 8 is expressed in the same way as sect. 15 and there "in possession," and "receipt of profits," and "receipt of rent," apply to the tenant.] Sect. 9 speaks of the receipt of rent reserved: and that is the meaning attached to "receipt" of "rent" in sect. 3. If, in a writ of right, the receipt of rent would shew a taking of the esplees, then this, according to the old law, would be an adverse possession; and here the term "rent" should have the same meaning, and be synonymous with esplees. Cur. adv. vult. Lord DENMAN C. J. now delivered judgment. The first question in this case is, what is the proper construction to be given to the words in the will of the testator made in 1776 (d), which are as follows. (His Lordship then read the words: see antè, p. 328-330.) The defendant in this action, the son of Mr. William Browne (e), the devisee, is undoubtedly the heir general both of the testator and of William Angell, the first (a) 4 Young & C. Exch. 466. (e) See antè, p. 336, note (d). (b) M. & W. 131. purchaser at Crowhurst: but he traces his descent through a female, namely, from Frances Angell, afterwards Browne, the only child of William Angell, who was the eldest (a) son of John Angell (The Caterer), who was the eldest son of William Angell, the first purchaser at Crowhurst. John Angell (The Caterer) had five (b) sons, besides William, the father of Frances Brown: three of those five died without issue. Another, Justinian, was the grandfather of the testator, with whom that male line expired. The lessor of the plaintiff endeavoured to trace his descent from the youngest, Thomas, entirely through males. The question therefore is, whether, in order to satisfy the words of the testator's will, the claimant must be heir general as well as male. We do not think it necessary to examine minutely all the authorities on this much litigated question. The cases of Wills v. Palmer (c) and of Goodtitle dem. Weston v. Burtenshaw (d) are relied on to shew that the rule laid down by Lord Coke, in Co. Litt. 24. b., has been altogether destroyed. But it is not necessary, in this case, to go so far. It must be admitted, on all hands, that the rule is modified as stated by Lord Hardwicke in Newcoman v. Bethlem Hospital (e); so that, unless there be some circumstances to take a case out of the rule, a claimant must shew himself heir (a) He was the eldest of those who survived their father. Those (four in number) who died before the father left no issue. (b) He had, in all, ten sons, of whom six survived him, namely, the third, fourth, fifth, sixth, seventh and ninth. Of these six, the fourth, fifth and sixth appeared to have left no issue living at the date of the will. It will be seen that the principle of the judgment is not affected by these variances. (c) 5 Burr. 2615. (d) Fearne's Cont, R. 570. Appendix, No. 1. (e) Amb. 8. nch. 1846. Doɛ dem. v. ANGELL. Volume IX. general as well as male, but that there may be such 1846. Dog dem. plain indications of a contrary intention in the testator as to take a case out of the rule. Here we are of opinion that there is such plain indication of a contrary intention. The testator, in this clause of his will, speaks of his great grandfather John Angell (that is The Caterer), and of the defendant's father (a) being the grandson to Frances Browne, who was an Angell. Mrs. Frances Browne, it appears, was the first cousin of the testator's father, the only child of the eldest (b) brother of the testator's grandfather. The testator plainly knew the pedigree of the family, for several generations, up to William, the first purchaser at Crowhurst. He speaks of his great aunts, Maryott, Lucy, and Hocknall, daughters of his great grandfather John (The Caterer): he knew that Mrs. Frances Browne was an Angell, and could hardly have been ignorant that her father was his great uncle, which was probably the reason of his preferring the Brownes, as being descended from a male Angell, son of John The Caterer, to the Marryotts, Lucys and Hocknalls, who were descended from females, daughters of the same John Angell. He must also have known that the defendant's father was the heir general of William Angell at Crowhurst. When, therefore, he used the words "male heirs, if any such there be, of William Angell, the first purchaser at Crowhurst," he must have been aware that, if the word "heirs was taken in its strict sense, there could not possibly be any person answering the description. Neither could he have meant the heir general of William at Crowhurst, provided such heir (a) See antè, p. 336, note (d). (b) See p. 351, note (a). |