Page:The English Reports v1 1900.pdf/1402

Several objections however are made by the plaintiff in this case. I. That the heir at law ought not to be disinherited by any other than a necessary implication. II. That the words contracted and agreed for, do not import an estate already purchased and paid for. III. That if the advowson in question should be construed to pass by the will, an advowson purchased twenty years before must equally have passed, as there was no drawing the line between the two cases. IV. That the clause in the will immediately following the clause in question, whereby the testator substituted the produce of the Lincolnshire estate, in lieu of the estates before devised, pointed out what estates were before devised; for as the produce of the Lincolnshire estate amounted to the exact sum remaining to be paid for the Hampshire estates, exclusive of the advowson in question; and as it was reasonable to suppose, that the substituted money was intended to be equivalent to the interest in lieu of which it was given, it must be inferred, that the advowson in question was not intended to pass.

To the first objection it was said, that this advowson passed by the express words of the will, and without any implication.

To the second objection it might be answered, that in the strictest and most proper sense of the words, contracted and agreed for, they would include the estates actually purchased, as no estate can be purchased without being contracted and agreed for; but the better answer was, that the expressions used by a man in his will are to have that sense put upon them, which plainly answers his intention. Here the testator, having some real property recently contracted for only, and other more recently purchased, made use of general terms, including all, and which could not be satisfied without including all; and then added the words "for the purchase whereof I have already contracted," not as distinguishing one from the other, but as applying to all; it appearing clearly to be his intention to dispose of all. The word already was a strong proof of this, and clearly shewed, that the testator had in his view, all the real property in Hampshire, of which he was then the owner.

As to the third objection, the words of the will were abundantly sufficient to have passed the advowson in question, though it had been purchased twenty years before; but the cases were very different; for it appeared that the purchase of the advowson in question, was subsequent to all the other contracts, and made between the time of entering into those contracts and the time appointed for completing them; and which manifestly distinguished the case from that of an advowson purchased long before.

[387] In answer to the fourth objection, it was said, that there was no occasion for any equivalent to be substituted in lieu of the advowson in question, as it was actually conveyed to the testator, and could not pass but by proper words to the devisee; and if the testator's wife had actually had the produce of the Lincolnshire estate, in lieu of the estates devised to her, exclusive of the advowson in question, she must have been a loser to the amount of £10,000, so much having been paid down by the testator towards the purchase of one of the Hampshire estates; but, in fact, no substitution was intended; for, at all events, the testator's wife was to have the estates devised, and in no event the money, except for the purpose of completing the purchases; and had there been no clause at all concerning the money, the effect would have been the same; for the testator's wife would have been equally entitled to have had the purchase completed, as well out of the produce of the Lincolnshire estate, as of the rest of the testator's personal property.

After hearing counsel on this writ of error, the following question was put to the Judges; viz. Whether the advowson of the "church of Mottisfont, otherwise Mottson, East Dean, and Lockerley, passed to Lady Broughton Delves, by the will of Sir Brian Broughton?" And the Barons of the Court of Exchequer differing in opinion, they were heard seriatim, except Mr. Baron Perrot, who was ill; Mr. Baron Burland, and Mr. Baron Eyre, delivered their opinions in the negative; and the Lord Chief Baron in the affirmative: Whereupon it was ordered and adjudged, that the judgment given in the Court of King's Bench, reversing the judgment given in the Court of Common Pleas, should be affirmed; and that the record should be remitted, etc.^[1] (M. S. Jour. sub anno, 1774–5 p. 767.)