Dudley v. Dudley

1 Super. Ct. Jud. 12

Opinion

The Chief Justice

delivered the Judgment of the Court in Favour of the Fee Simple. (⁹)

Footnotes

9

(9) This judgment is recorded as of September term at Worcester, but the entry bears evidence of having been inserted at a later date. The decision was undoubtedly given, as here reported, at February term in Suffolk. It also appears that “ immediately upon entering up this judgment, the said Thomas moved for an appeal to his Majesty in Council, which the Court did not allow.” The Province Charter provided for an appeal to the King in “ personal actions ” only. Anc. Chart. 32.

It is to be regretted that we have no means of ascertaining on what ground this decision was given. If the Court were satisfied that the land, as well as the money, was given “toward building the house,” it was evidently excepted from any operation of the subsequent general clause. But if the effect of that clause became necessary to be considered, a more difficult question must have arisen. The words directing a descent “according to the manner of England,” &c., seem clearly to intend a common law descent, in opposition to the law of the Province. But the words which immediately follow, “If either of my sons die,” &c., would seem to import an indefinite failure of issue, and to give the brothers estates in tail male general, with cross remainders, also in tail male. Abbott v. Essex Co. 18 How. 202. Hall v. Priest, 6 Gray, 18, and cases cited. The question cannot be better stated than in Mr. Otis’s words. ante, p. 20 — “Can an implied estate tail ever be raised, when the first words give an estate unknown to the laws of the country?” In the case of Banister v. Henderson, post, 131, Mr. Auchmuty says that “the point of charge had weight” in this case. This seems hardly probable, as one was directly on the rents and profits, and the other a charge of wood to be furnished from the land itself. See 24 Pick. 139. And even a personal charge of a sum in gross will not enlarge a clear estate tail, though only arising by implication. 2 Jarman on Wills, (1st Am. ed.) 172. 5 T. R. 535. 2 B. & Ad. 318.