Page:The English Reports v1 1900.pdf/1448

That the said William Benn entered upon the said premises in the said declaration mentioned, and held and enjoyed the same until the time of the decease of the said Ann, the wife of the said Calvert Benn, which happened on the 30th day of October 1777 [458] and also held and enjoyed the same from the death of the said Ann Benn, until the making of the conveyance hereafter next mentioned.

That by indentures of lease and release, bearing date respectively the 17th and 18th days of June 1778, the releuse made between the said William Benn, by the name and description of William Benn of Hare-street House, in the county of Herts, Esq. only son and heir at law of Calvert Benn, late of Knights Hill, in the county of Herts, Esq. deceased, and Sarah his wife, of the first part; one John Raincock, Esq. of the second part; and the said Evan Pugh, of the third part; in consideration of the sum of one thousand one hundred and seventy pounds to the said William Benn paid by the said Evan Pugh, the said William Benn, and Sarah his wife, did grant, release, and confirm unto the said Evan Pugh and his heirs the premises in the said declaration mentioned, to hold the same unto and for the use of the said Evan Pugh, his heirs and assigns for ever. And it was by the said indenture of release recited, that one fine sur conuzance de droit come ceo, etc. with proclamations as of Hilary term then last, had been acknowledged or levied before his Majesty's Justices of the Court of Common Pleas at Westminster, by the said William Benn and Sarah his wife, to the said John Raincock and his heirs, of and concerning the premises thereby released, or intended to be, with the appurtenances, by the description of one messuage, and half an acre of land, with the appurtenances, in the parish Saint Botolph, Bishopsgate without, London: it was thereby declared, that the said fine, so levied, and all other fines, recoveries, and assurances of the premises, should be and enure to the only proper use and behoof of the said Evan Pugh, his heirs and assigns for ever.

That a fine sur conuzance de droit come ceo, etc. was levied in his Majesty's Court of Common Pleas at Westminster, in eight days of Saint Hilary, in the eighteenth year of the reign of King George the third, of the said promises.

That the said William Benn the son, on the 11th day of January 1783, died, without leaving, or ever having had, any issue whatsoever.

That the said Morris Bailey and Ann his wife, Samuel Margerum and Elizabeth his wife, and Thomas Davies and Lydia his wife, after the death of the said William Bann the son, and before the demise laid in the ejectment, made an actual entry into the said premises in the said declaration mentioned, for the purpose of avoiding the said fine, so levied by the said William Benn and Sarah his wife, as aforesaid, and within one year afterwards brought an ejectment to recover the possession of the premises.

This special verdict was argued by counsel on both sides; when the counsel for the plaintiffs in error insisted, that the testator's daughters, Ann Bailey, Elizabeth Margerum, and Lydia Davies, could not take the estates, etc.—Yet the Court of King's Bench gave judgment for the plaintiff.

[459] Upon this judgment the plaintiffs Evan Pugh and Samuel Pugh brought their writ of error in parliament, in order to reverse the same. And on their behalf it was contended (E. Beareroft, F. Bower), that notwithstanding any apparent intention in a testator to disinherit his heir at law, such intention cannot prevail, unless the person intended to take in prejudice of the heir, is plainly and certainly marked out and described. That though it should be admitted that the meaning of the testator, in the present case, was sufficiently apparent, the words "right heirs" cannot be words of purchase, or such a designatio personæ as to enable any person to take as a purchaser under that description. That it was by no means apparent, that the testator ever meant to describe his daughters by the words "right heirs of me, my son excepted;" and a construction to that effect might eventually have defeated his intention, by giving the estates in London and Middlesex to his daughters, in preference to the second son of William Benn, in case such a son had been born; for as the eldest son of. William Benn would have taken an estate tail in those premises, the remainder in fee thereof would, upon his birth, have immediately vested in the daughters of the testator; and an after-born second son of William would have been excluded from the inheritance, though his elder brother should have died without issue, a construction which would have been contrary to the intention of the testator, who did not mean his daughters should take, whilst there were any living issue of his son William Benn.

On the other side it was said (J. Mansfield, G. Wood), that the testator had a right