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1797

BUCK

NURTON.

being in the said county of Somerset, or elsewhere in the king“ dom of Great Britain; to hold the fame unto the said Elizabeth Whalley, for and during the term of her natural life, to and “ for her fole and feparate use, with power for the said Elizabeth Whalley to cut and fell timber for the necessary repairs of the faid premises only: and from and immediately after her de“ cease, I give and devise my faid capital mansion-house, manors, “mesluages, farms, lands, tenements, hereditaments, and pre“ mises, with the appurtenances, unto the said John Nurton, his “ heirs and assigns for ever: also I give, devise, and bequeath unto “ the said Elizabeth Whalley, all my leasehold messuages or tene“ments, lands, and premises, in the faid county of Somerset, or “ ellewhere; to hold unto the said Elizabeth Whalley for so many

years of my term, estate, and interest therein as fhall run out “ and expire in her lifetime, to and for her own sole and separate “ use and benefit: and from and immediately after her decease, “« I give, devise, and bequeath the same leasehold messuages, or “tenements, lands, and premises unto the said John Nurton, his “ executors, administrators, and assigns, for all the residue of my 6 term, estate, and interest that shall be therein then to come and

unexpired. And it is my express will and desire, and I do s hereby direct, that the said John Nurton shall hold and enjoy my faid capital manfon-house, with the appurtenances, for the Space of one year next ofter my deaih. I give, devise, and be “ queath unto the said Thomas Sedgwick Whalley, in cafe he shall « survive his wife, the said Elizabeth Whalley, the sum of one “ thousand pounds, to be issuing and payable out of the estates “ hereinbefore devised to the said Elizabeth Whalley for life, and “ to be paid by the said John Nurton at the end of twelve calendar “ months next after her death. All the reft, refidue, and re“ mainder of my personal estate and effects whatsoever and where« foever, and of what nature or kind foever, after payment of all

my just debts, funeral expences, and legacies hereby given, I

give, devise, and bequeath unto the faid John Nurton, his exe“cutors, administrators, and asligns. And I do hereby make, " conflitute, and appoint him, the said John Nurton, whole and. sole executor of this my will, hereby revoking all former wills “ by me at any time heretofore made; and do make and declare ► this to be and contain my last will and teftament.”

The testator died on the 28th of March 1796, having for many years previous to and at his death constantly occupied all the pre. mises above mentioned, (which were enumerated in a schedule prefixed to the case,) with his faid capital mansion-house, and the

gardens

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1797)

BUCK

NERTON,

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gardens and pleasure-grounds of Chipley; which include the parlour-garden, the herb-garden, the pond-garden, the old housegard n, the arbour-garden, the shrubbery, the limetree-grove, and a court adjoining, and the public and private walks or roadways, one of the latter of which was through the park to Chipley House, besides a back court, and other curtilages.

The question for the opinion of the Court was, Whether the Jeffors of the Plaintiff, or any of them, were entitled to recover ail or any, and what part of the above-named premises; and whether they, or any of them, passed to John Nurton by the clause which directs that he is to have the manfion-house, with the appurtenances, for a year after the teftator's death?

Le Blanc Serjt. for the Plaintiff. The ist queftion is, What is the true fignification of the word “appurtenances ?" the 2d, What is the intention of the testator, as it appears on the face of the will? The strict technical sense of the word "appurtenances" is confined to buildings, curtilage, and garden belonging to the house. In old times indeed, there was a question as to the latter. A devise of a message with the appurtenances, does not include lands usually occupied with the house: only such as are immediately necessary to the enjoyment of it. Bro. Abr. Feofment of Lands, pl.53. Bettisworth’s case, 2 Co. 32. Hearne v. Allen, Cro. Car.57. Hutton, 85. S. C. This last case was on a will, the two former were on deeds. But notwithstanding the general rule, if it appear to be the obvious intention of the teftator, that lands generally occupied with the house should pass, the Court would confirue the word “ appurtenances” contrary to its strict technical sense, so as to carry the lands to the Defendant. The teftator here was pofseffed of a mansion-house, together with parcels of land, amounting to about fixty-four acres and a half; there were gardens, shrubberies, public walks and ways, which might well come under the word “appurtenances,” and it is not contended by the lessors of the Plaintiff that they did not pass: they were sufficient to satisfy the word “appurtenances,” without the additional lands. The teftator was well aware of the diftinction between appurtenances to the manfion-house, and lands occupied with the manfion-house; for in every claufe, except the last, (which is the one in question,) he describes the particular premises which are intended to pass, and afterwards adds the word “ appurtenances.” So in the decise to E. Whalley the words are," all that my capital manfion-house wherein I now “ live, and the lands and grounds thereto belonging, and there6 with held and enjoyed, with the appurtenances,” but in the E 4

last

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1797.

Воск

NURTON

laft or directory clause, when he takes out of the devise to E. Whallcy what was intended to be given to the Defendant for a year, he drops the words which defcribe the lands occupied, and says only, “ mansion-house, with the appurtenances.” Befides, it is to be considered that the Defendant had been fteward to the devisor, and was by will appointed his executor; it was neceffary, therefore, that he should have access to all the papers of the devisor, with as much facility as poflible: this could be beft afforded himn by the devife of the mansion-house for a year, with what was necessary to its actual enjoyment; but a beneficial interest in the lands round it could not come within the same view.

Williams Serjt. for the Defendant. It is manifest from the will, that every thing was meant to pass. If that intent can be thewn, it is admitted that the words are large enough. But fome cases may be cited, to thew that er vi termini more will pass by the word “ appurtenances” than has been stated on the other side. In Iligham v. Baker, Cro. Eliz. 16. Anderson Ch.J. fays, “ That land thall país as pertaining to a house which hath so been occupied with it by the space of ten or twelve years; for * by that time it hath gained the name of parcel, or belonging, " and shall pass with the house by that name in a will or leases." The fame doctrine is laid down in Loft v. Baker, 2 Rolle's Rep. 347. So by the case of Yates y. Clincard, Cro. Eliz. 704. it appears, that lands may pass under the words, “ house, with “ the arpurtenances.” In Boocker, v. Samford, Cro. Eliz. 113. a devise of a “gencment, with the appurtenances, in which H.B. “ dwelleth in Ebley," was held to pass lands out of Ebliy, which had been used with the tenement by the space of fixty years, and had always passed by one grant, and under one rent. And in the prefent cafe the lands in question had been for many years constantly occupied with the house. The strongest cale in favour of the Plaintiff is Smithson v. Cage, Cro. Jac. 526.; but that was a case of furrender of copyhold, which is construed as strictly as a deed. But even there, the orchards were held to pafs. By Hill v. Graung", Ploved. Com. 170. it appears that the terms “ appertaining to the mesfuage” may, even in a deed, signify lands usually occupied with the mefliuage (a). As to the question of intent, it has been said, that if the testator had

(a) Land may be said to he aprertaining let and occupied together by a convenient to an houle, as well in the King's care, as time. Jennings v. Leke, Cre. Car. 168. of a common person, wherç it hath bech Vide ctiam Go. Entr.384. Dyer. 362. .

meant (-) Heb. 33. The noteis-No man fhall by devise to an heir, any may take that is hew me a cale in baw, where by purchase not beis indeed, wi.houé declaration plain.

17976

BUCK

NURTON,

meant the lands to pass, he would have described them: and the circumftance of the description being inserted in the former clause, and omitted in the latter, has been relied on. But the words, - house with the appurtenances,” in the directory clause, refer to the former description, and thew that the Defendant should take in the same manner as E. Whalley. The cases of Doe v. Collins, 2 Term Rep. 493. and Blackborne v. Edgley, 1 P.IVms. 600. prove that very little is fufficient to pass lands occupied with the house, there it appears to have been the intention that they should pass. L2 Blanc in reply was stopped by the Court.

Erre Ch.J. I have no doubt upon the case, unless it be with relpect to the orchards. Lands will not pass under the word

appurtenances" taken in its strict technical sense: they will pefs if it appears that a larger sense was intended to be given to it. If the Courts had always adhered to this line of confruction, many reported cafes would not now disgrace the books. Every teftator ought to be fupposed to take legal words in a legal senfe, unless, according to the marginal note to the case in Hobart (a), there be demonftration plain of an intent to use them in a different fenfe. In the former part of the will there is a devise of a house with lands in terms express, to which is added, “with the appurtenances,” in order to comprize all which might not fall within the description. Then follows a declaration that the Defendant shall have for one year something which was included in the above devise. The teftator must be fupposed to have understood what he was talking about: If he had intended to have given the whole, the words were before him, and he ought to have used them. Suppose there had been nothing stated to let us into the intention of the teftator, but the mere devise to the Defendant, we must have examined what was occupied by the testator; and if we had found a house situated in a park which had always been occupied with it, and was, as it were, an integral part of the thing, this might have proved the intention of the teftator to pass the whole together. There, if nothing to the contrary had appeared, we might havesupposed the teftator to have used the word “appurtenances" in a sense different from its technical fenfe, But this is not that cafe. It is true that the premises were occupied for a considerable time together with the house: but first, the whole of the premises are not necessarily connected; in the next place, there is here folid ground to argue, that the teftator

understood

1797

Buck

NURTON.

understood the meaning of the words employed in the devise, having sometimes used the word “ lands” as a part of the description, and sometimes dropt it. The Defendant being the testator's executor, and having been his steward, affords a fair ground of argument. The testator gave him the exclusive enjoyment of the manfion-house, “ with the appurienances,” for one year only, after having devised the mansion-house and lands also “ with the appurtenances," to Mrs. E. Ihalley for her life, with remainder to the Defendant. Now with what view was this done? Most probably for the convenience of the Defendant in the execution of the duty imposed upon him. The general intent, therefore, as collected from the devile, and the relation in which the devisee stood to the teftator, does not call upon us to go beyond the strict rule in construing the technical word “ appurtenances."

HEATH J. I am of the same opinion. We ought to adhere to the strict technical sense of the word “appurtenances." For though the intention is not clearly expressed, why the Defendant should have the mansion-house at all, yet it appears, that he was executor and refiduary legatee; and as such was intitled to the stock, the arrears of rent, the furniture, &c. A year's occupation therefore was given him, to settle his accounts, and collect what belonged to him. He ought to have the house, and what comes within the strict sense of the word “ appurtenances.” Besides, this may be distinguished from the cases cited, for it is a separation of the premises for a year only, whereas in some of the other cases it was for a great length of time, and in some perpetual, which might induce the Court to lean against it. ROOKE J. I am of the fame opinion.

The poftea to be delivered to the Plaintiff

for all the premises except the orchards.

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une 27th. MORGAN Alignee of the Sheriff v. SARGENT one of

the Bail of Owen. on the laborion The declaration, after ftating the writ, the arrest, the nonconclude :

appearance, and the assignment of the bail-bond, proceeded " Whereby an thus: “ By reafon of which faid premises, and by force of the " action hach " accrued to the

6 ftatute, &c. an action hath accrued to the said T. Morgan as Plaintiff 10 deinand and have of the principal” (instead of the bail), and state non-payment by the principal; it is bad on a special demurrer,

* aflignee,

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