The CASE of John James, The Lessee of GEORGE DURDANT, Plaintiff, against William Richardson, Defendant; in a Writ of Error in PARLIAMENT.

JOHN James brought an Ejectione Firme in the Court of Kings-Bench, for certain Lands in Staines in the County of Middlesex, upon the Demise of George Durdant, against the Defendant Richardson, upon Not Guilty pleaded, The Jury finds a Special Verdict, viz.

That Henry Wicks, Esq; being seized in Fee of the Lands in question, the sixth of June 1657. made his Will in writing, and thereby devised the said Lands in these words, viz. I give unto John Higden and his Heirs, during the Life only of Robert Durdant, Eldest Son of my Nephew Andrew Durdant, Deceased, my Lands in Staines, upon Trust to suffer the said Robert Durdant, during his Life, to receive the Rents and Profits (he the said Robert committing no waste) and after the Decease of the said Robert Durdant, I do give the said Lands unto the Heirs Male of the Body of him the said Robert Durdant now living, and to such other Heirs Male and Female, as he shall hereafter happen to have of his Body.

That George Durdant, the Plantiffs Lessee, at the time of the Will made, and at the Death of the Devisor, was the only Son and Heir-Male apparent of the said Robert Durdant.

That the said John Higden and Robert Durdant, after the Death of the Devisor, by Fine and Feoffment, sells away the said Land to the Defendant Richardson, and his Heirs, of the Yearly value of Forty Pounds, for Three Hundred and Fifty Pounds, the said George Durdant being then a Minor.

That after the Death of Robert Durdant the said George Durdant enters upon the Defendant Richardson, and makes a Lease of the said Land to the Plaintiff John James.

After many solemn Arguments, the Court of Kings-Bench was of Opinion, That George Durdant hath a good Title to the Lands in question, by the meaning of the Will, notwithstanding the Sale made by John Higden, and his Father Robert Durdant, and gives Judgment accordingly for the Plaintiff.

For, First, The Devisor intended no greater Estate, either to John Higden, or Robert Durdant, than during the life of the said Robert Durdant.

Secondly, By the words Heirs-Males of the Body of him the said Robert Durdant now living, George Durdant, as his Eldest Son and Heir Apparent, takes an Estate in re­mainder, immediately vested in him, and cannot be said to depend in contingency up­on the death of his Father Robert Durdant; for the words now living, relating to the words Heirs-Males, no other sence can be made of them, but by applying them to George Durdant; who, though he be not an Heir in a strict sence, during his Father's life, yet in an improper sence, and according to common Parlance, he may be said to be Heir, to take an Estate in remainder; and unless such a construction be made of the first words Heirs-Males, the words now living, and likewise the subsequent words, viz. and to such other Heirs-Male as he shall hereafter happen to have of his Body, must be construed vain, idle and superfluous, which is absurd, and contrary to the constant practice in the exposition of Wills; then consequently, if there be an Estate in remainder vested in George Durdant, the Fine and Feoffment cannot destroy it.

The Defendant Richardson brought a Writ of Error in the Exchequer Chamber, where the Judgment for the Plaintiff in the Kings-Bench was reversed.

To reverse the Reversal in Exchequer Chamber, and that the first Judgment may stand, the Plantiff hath brought the now Writ of Error in Parliament.

This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Text Creation Partnership. Searching, reading, printing, or downloading EEBO-TCP texts is reserved for the authorized users of these project partner institutions. Permission must be granted for subsequent distribution, in print or electronically, of this EEBO-TCP Phase II text, in whole or in part.