In an ejectione firme, the defendant pleaded not guilty. Upon which a special verdict was found. Nicholls possessed of a term for 1000 years, devised the same to E. his daughter for life, the remainder to John Holloway, and made Lowe the husband of the daughter his executor and died : John Holloway devised his interest to Henry and George Holloway, and made Oliver and others his executors and died ; afterwards Lowe spake these words : If E. my wife were dead, my estate in the premisses were ended, and then it remains to the Holloways. E. died, the executors of John Holloway made the lease to the plaintiff, and Lowe made the lease to the defendant, who entred upon the plaintiff who brought ejectione firme; and whether upon the whole matter the defendant were guilty or not of the trespass and ejectment supposed, the jury referred to the Court : and the points upon the case are two. First, whether the words spoken. by Lowe the executor be a sufficient assent to the devise or not: admitting that it is, then the second point is, whether this assent came in due time or not, as to the interest of John Holloway in the remainder, because he died before the words spoken which should make the assent; and as to that, the point is no other, but that the legatee dieth before assent to the legacie, whether aeserit afterwards came too late, or that the legacie shall be thereby lost or not, that is the question : and by Justice Mallet, it is a good assent, and that in due time, and here some things ought to be cleared in the case. First, that the devise to John Holloway in the remainder is good by way of executory devise. Secondly, that the devise by John Holloway to Henry and Gaorge is a void devise, because but a possibility. Thirdly, that the assent to the first devise is an assent also to him in the remainder. And lastly, that if an executor enter generally, he is in as executor arid not as devisee: all which are resolved in Lampetts and in Matthew Mannings case. Now these cases being admitted, the question is, whether that Lowe the executor here hath made a sufficient declaration, to take the term as devisee in the right of his wife, or not : for he hath his election to take it as executor, or all the right of his wife ; and as I conceive
he hath made a good election to have it as legatee in the right of his wife.
Citations:
[1675] EngR 1535, (1675) March NR 135, (1675) 82 ER 445
Links:
Landlord and Tenant, Wills and Probate
Updated: 11 May 2022; Ref: scu.405660