Page:The English Reports v1 1900.pdf/1423

Elizabeth Belchier, for a specific performance of the agreement of the 1st of July 1778.

The appellant, by his answer, admitted the agreement, and the several facts before stated; but said, that he declined to complete his purchase, being advised, that by the construction of the will of the testatrix, the respondent Catherine Hodgson might be deemed to have taken only an estate for life in the said estates devised to her, and not an estate tail therein, by which means a good title could not be made to the appellant. And the defendant Catherine Belchier, by her answer, submitted the question, and her interest in the premises to the consideration of the court.

The cause came on to he heard the 7th of December 1779, before the Lord Chancellor Thurlow; when his Lordship was pleased to order, that a case should be made for the opinion of the Judges of his Majesty's Court of King's Bench, and that the questions should be,

First, "Whether Catherine Belchier, the daughter of Elizabeth Belchier, took any and what estate under the will of Susan Jolland?"

And secondly, "What estate Catherine Hodgson, late Jolland, took under the said will?" And reserved all further directions until after the Judges should have made their certificate.

On the 24th of April 1780, the case was argued before the Lord Chief Justice and the rest of the Judges, when they were pleased to give their opinion in the words following, viz.

If Elizabeth Belchier would have taken an estate tail, in case she had survived the testatrix, we think by her dying before the testatrix, it is a lapsed devise; and Catherine, the daughter of Elizabeth, can take nothing.

As to the question, whether Elizabeth would have taken an estate tail, whatever our opinions might be if the case were now, we think as the case of Coulson v. Coulson is literally the same, the precise question ought not to be again litigated; and by that authority we are bound to say, in the words of the certificate in that case, that as it appears by the state of the case, that there is after the determination of the estate for life to Elizabeth Belchier, a devise to William Arnold and Isaac Pennington, and their heirs, for and during the life of Elizabeth Belchier, we are of opinion that Elizabeth Belchier, if she had survived the testatrix, would have taken an estate for life in the premises devised to her, not merged by the devise to the heirs of her body, but by that devise an estate tail in remainder would have vested in the said Elizabeth; consequently Catherine Belchier, the daughter of Elizabeth, took no estate under the will of Susan Jolland; but Catherine Hodgson, late Catherine [420] Jolland, took an estate for life in all the devised premises, not merged by the devise to the heirs of her body, but by that devise an estate tail in remainder vested in the said Catherine Jolland.

The cause came on to be heard on the 15th of July 1780, on the equity reserved by the before-mentioned order, when his Lordship was pleased to decree, that the plaintiff's bill should stand dismissed as against the defendant Catherine Belchier, with costs; and that the agreement, bearing date the 1st of July 1778, should be specifically performed and carried into execution, and that the appellant should pay to the respondents the sum of £9000, the purchase-money agreed to be paid by him for the estate in question; and it was ordered, that the respondents, and all proper parties should join in executing proper conveyances of the said purchased premises to the appellant and his heirs, and should deliver to him all deeds and writings in their custody or power relating thereto.

From this decree the purchasor appealed, and on his behalf it was argued (J. Madocks, Ll. Kenyon) that the authority of the case of Coulson v. Coulson, which governed the present case in Westminster Hall, was not such as concluded the present parties, since that case had never received confirmation on an appeal; the appellant therefore hoped for the liberty of submitting his reasons against the present decree, notwithstanding that The rule in Shelley's case, was the ground of the determination in Coulson v. Coulson, and, consequently, in this case; the authority of which rule, must be confessed as a rule of construction established by law, declaring how a limitation to the heirs of the body of a person before named in the same instrument, and taking an estate of freehold, shall be understood both in deeds and wills: but it being also a rule of property, that lands may be disposed of by will, and that the intention or will of the testator shall