Page:The English Reports v1 1900.pdf/1249

not only to the remainder of the said term of 1000 years, but also to the inheritance of the premises comprised therein.

The respondent Peter Delamotte put in his answer in the said bill, and therein set forth, that believing the said Jacob Sawbridge had a good title, he took a lease from him of the said capital messuage, and some lands, part of the premises, for the term of 21 years, at a pepper-corn rent for the first two years, and at the rent of £45 a year for the remainder of the said term; and that relying on a quiet enjoyment of the premises in his lease, he had laid out considerable sums in improving the same; and therefore insisted on his right to hold the premises in his said lease, for the residue of the said term, under the rents and covenants therein reserved and contained.

This supplemental cause being at issue, and witnesses examined, came on to be heard before Sir Joseph Jekyll, Kat. Master of the Rolls, on the 11th of December 1734, when his Honour being of opinion, that the appellant had made out no title to the inheritance of the premises, as hair at law of the said Richard Watson, was about to dismiss his bill; but it being then insisted by the appellant's counsel, that he had a right to the premises for the residue of the said term of 1000 years, under Sir Edward Brett's will, but having made out no title thereto in his bill, his Honour was pleased to order, that the appellant should pay the defendants the costs of the day, and be at liberty to amend his bill, and make proper parties, and bring on his cause again to a hearing; but he was to amend his bill by the first day of the next term, or in default thereof, the same was to be dismissed.

Accordingly, the appellant amended his hill, by charging, that in case the said Sir Edward Brett had only a term for years in the premises when be made bis will, the remainder thereof, subject to the estate for life thereby given to the said John Brett Fisher, Nathaniel Fisher, and Edward Fisher, with contingent remainders to their first and other sons respectively, did vest in Catherine Wilkins, otherwise Watson, who was the hair at law of the said Richard Watson, at his death; and that she dying intestate, administration of her personal estate had been granted to the appellant, [146] and that by virtue thereof, he was become entitled to the residue of the said term.

On the 20th of February 1734, the said cause came on again to be heard before his Honour the Master of the Rolls, who, after he had fully heard what was alledged by the counsel on either side, took time to consider thereof; and after mature deliberation, his Honour, on the 10th of May 1735, was pleased to declare his opinion, that the appellant had no title to the premises; and therefore decreed, that the appellant's bill should stand dismissed with costs, as to the respondent Peter Delamotte; no costs being asked for the other defendants.

From this decree the appellant appealed (D. Byder, N. Fazakerly); and on his behalf it was said, that there were but two objections insisted on by the respondents against his demands: I. That Sir Edward Brett having devised the premises as an estate of inheritance, and not as a term; and having, in fact, only a term, and no inheritance, the term would not pass. And II. That if he intended to devise the term, the limitation to the right heirs of Stephen Beckingham and Richard Watson was too remote, and therefore void.—To the first of these objections it was answered, that the respondents were not at liberty to insist, that the testator had not the legal or equitable estate of inheritance in him; for that the conveyance to John Brett Fisher, under whom they claimed, from the heirs of Sir John Wroth, ought to be understood to be in pursuance of the intent of the testator, and of that equitable right to which he apprehended himself to be entitled. But if he was not to be considered as entitled to the inheritance, it was conceived that there could be no reason to overturn his will entirely, because it could not take effect in the full extent which he intended. And as to the other objection, it was said, that the intermediate limitations to the sons of John Brett Fisher, Nathaniel Fisher, and Edward Fisher, were all of them contingent only, and to happen within the compass of lives then in being; and as these contingencies never did happen, and the limitation to the heirs of Beckingham and Watson was to take effect immediately on the failure of these contingencies, it could not be too remote, since there never was any person in being who had, or was entitled under the will to have, any greater estate than what was determinable on lives then in being. And therefore it was hoped, that the decree would be reversed.

On the other side it was argued (J. Willes, J. Strange), that as to the inheritance of the premises, which the appellant claimed by his original and supplemental bills,