Page:The English Reports v1 1900.pdf/712

hours of five and six o'clock in the morning of the 16th of August 1725, and died about eleven o'clock in the forenoon of the 15th of August 1746, when he was killed by a fall from a waggon. And on his death, the respondent William Sansam, as his heir at law, became entitled to the estates in question.

Sarah Sansam, the testator's granddaughter, survived her two brothers, Richard and Thomas, and having intermarried with Richard Linthwaite, had issue by him, the appellant Ann, and Sarah Linthwaite, her only children and heirs at law, and died in March 1757.

After the death of the testator, and in the lifetime of the devisee Thomas Sansam, three of the five leases which he was entitled to, determined by the deaths of the several persons for whose lives the leasehold premises were thereby granted; and the respondent Mark Sansam, with his own money, purchased of the hospital three new leases of the same premises for his own benefit; and he, on the 26th of May 1748, surrendered these three leases to the hospital, and obtained from them two new leases, comprising [470] all the premises contained in the three which he surrendered; and he afterwards borrowed £100 of the respondent Snape, on mortgage of these two leases.

In February 1761, the appellant Ann and her sister Sarah Linthwaite, together with Richard Linthwaite their father, as the husband and administrator of Sarah the testator's granddaughter, exhibited a bill in the Court of Chancery, against the respondent Mark Sansam and Ann his then wife, and the other respondents, praying, that the will of the testator Thomas Greaves might be established, and that the defendants might come to an account with the plaintiffs, and that the rents and profits of the premises, which had become due in the lifetime of Sarah Sansam, after the death of Thomas Sansam, might be paid with interest to the plaintiff Richard Linthwaite; and that the rents and profits thereof, which had become due since the decease of Sarah, might be paid with interest to the appellant Ann and her sister, or laid out for their benefit, and that they might be let into possession of the premises; and that the mortgage made to the respondent John Snape might be set aside; and that the respondents John Snape and Mark Sansam might be declared to be trustees in the new leases which had been obtained by the respondent Mark Sansam, for the benefit of the appellant Ann and her sister, and that the same might be assigned to them; or in case the respondent John Snape was justly entitled to any mortgage of the leasehold premises, that the respondent Mark Sansam might discharge the same, and indemnify the appellant and her sister therefrom; and that the title deeds and writings might be delivered to the appellant and her sister, or some proper person in trust for them.

To this bill the respondent Mark Sansam and his wife, and the other respondents severally put in their answers; and the respondent Mark Sansam and his wife and the respondent William Sansam by their answers, insisted, that Thomas Sansam lived to attain his full age of twenty-one years, and stated the times of his birth and death, as mentioned above; and they also insisted, that on his death, the freehold estates which had been devised to him, descended to the respondent William Sansam, as his heir at law; and the respondent William Sansam insisted on the benefit of the two renewed leases, which had been granted to him.

The cause being at issue, several witnesses were examined on both sides; and though the plaintiffs by their bill had stated, that Thomas Sansam died on the 15th of August 1746, yet they endeavoured to prove that he died on the 14th of that month, and examined several witnesses for that purpose, who gave some vague and loose evidence as to the fact; but the plaintiffs did not give any evidence whatsoever of the time when Thomas Sansam was born. On the part of the respondent Mark Sansam and his wife, and the respondent William Sansam, several witnesses proved, that Thomas Sansam was born in the morning of the 16th of August 1725; and many witnesses proved, very strongly and circumstantially, that he died on the 15th of August 1746.

[471] On the 18th of July 1763, the cause was heard before the Master of the Rolls, when his Honour was pleased to order, that the parties should proceed to a trial at law, at the then next Lent assizes for the county of Leicester, on the following issue, viz. Whether Thomas Sansam, the grandson of the testator, died on the 15th day of August in the year 1746? And all further directions were reserved, till after the trial should be had.