1836.

DOE

d.

EVANS

v.

JONES.

case Lord Mansfield says (a), that since the Act of Toleration, the writ of mandamus ought to be extended to protect an endowed pastor of Protestant dissenters from analogy, and the reason of the thing. The deed is the foundation or endowment of the pastorship; the form of the instrument is necessarily by way of trust, for the meeting-house, and the land upon which it stands, could not be limited to the minister and his successors. Many lectureships, and other offices, are endowed by trust-deeds. The right to the function is the substance, and draws after it every thing else as appurtenant thereto. The powers of the trustees is merely in the nature of an authority to admit. The use of the meeting-house and pulpit in this case follows, by necessary consequence, the right to the function of minister, preacher, or pastor, as much as the insignia do the office of a mayor, or the custody of the books, that of a town clerk. This shews, that if the minister is duly appointed, and is not admitted, the Court will grant a mandamus to admit; à fortiori, they will grant a mandamus to restore. [Parke J. The mandamus to admit to the use of the pulpit is perfectly consistent with this, that the land and chapel should be in the possession of the trustees. Bayley J. If the argument could be supported, the minister would have a right to dispose of the whole of the pews at his pleasure. Lord Tenterden, C. J. In the case of an endowed lectureship, though there is a right to the pulpit, there is no right to the possession of the church.]

BAYLEY J.-We are not called upon to decide whether defendant is entitled to the pulpit or not.

PARKE J.-The defendant is only tenant at will; his remedy may be in equity.

Rule refused.

(a) 3 Burr. 1268.

WILLIAMS and Wife v. GOODTITLE, Lessee of DAVID,

in Error.

1830.

messuage to

ERROR upon a judgment in the Court of Great Session, 4. devised a in the county of Glamorgan, upon a special verdict in eject- B. for life, and ment, in an action of ejectment on the demise of John after other devises, devised David against Rees Williams and Elizabeth his wife, for all the residue the recovery of five messuages, five dwelling-houses, &c., of his real estate to B. situate and being within the franchise of the town of Swan- and his heirs. sea, in the county of Glamorgan. The verdict stated that Afterwards A., having purbefore the making of the demise, and before the committing chased other of the trespass and ejectment mentioned in the declaration, this codicil: lands, made to wit, 24th April, 1795, David Thomas made his last will "Whereas I did, by my and testament in writing, duly executed and attested to pass last will and real estates according &c., in the words following: that is to testament, bearing date, say," In the name of God-Amen. I, David Thomas, of &c., devise all the real estate &c. do make, publish and declare this my last will and tesI was then tament in manner following: that is to say, I do give and possessed of in devise unto my friends and acquaintance John Hubbakuk, in mentioned, of &c., and Thomas Jones, of &c., their heirs and assigns, all that messuage &c., situate &c., to hold the same unto said Hubbakuk and Jones and their heirs, to the use of Hubbakuk and Jones, during the life of my wife Elizabeth Thomas: yet, nevertheless, to permit and suffer my said wife and her assigns to receive and take the rents, issues

manner there

and which will I ratify and confirm:" Held, that the after-purchased lands passed by the codicil (a).

(a) Quod mirum videtur. By 1 Vict. cap. 26, s. 3, it is enacted, "That it shall be lawful for every person to devise, bequeath or dispose of, by his will, executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which, if not so devised, bequeathed or disposed of, would devolve upon the heir at law, or customary heir of him, or, if he became entitled by descent, of his ancestor, or upon his executor or administrator, and that the power hereby given shall extend to such of the same estates, interests and rights respectively, and other real and personal estate, as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will." And by s. 24 it is enacted, "that every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will." Notwithstanding the decision in the principal case, it would rather appear that even this enactment would not have given the effect to the codicil contended for on the behalf of the lessor of the plaintiff, inasmuch as a contrary intention might, it is conceived, be said to appear from the recital in the codicil, that recital expressly referring to the real and personal estate of which the testator was possessed at the time of the making of the original will.

1830.

WILLIAMS

V.

GOODTITLE.

and profits thereof, to her and their own proper use and benefit, and after her decease to the use of the said Hubbakuk and Jones and their heirs, and the survivor of them, upon trust to lay out and expend a moiety or one half part of the rents and profits of my said hereditaments and premises towards the support, maintenance, education, and advancement in life of my nephew, John Evans, until he shall arrive at the age of twenty-one years; and the other moiety thereof towards the support, maintenance, education, and advancement in life of my nephew, Job Phillip, until he arrives at the age of twenty-one years; and in case either of my said nephews shall happen to die before he arrives at the age of twenty-one years, without leaving any lawful issue of his body, then in trust to lay out the moiety of him so dying at interest, to accumulate for the benefit of the survivor of them, or to lay out the same towards his maintenance and education, at the discretion of my said trustees and their heirs, and the survivor of them, until the survivor of them my said nephews shall have attained the age of twenty-one years; and if it shall happen that either of my said nephews shall die before his arrival at the age of twenty-one years, leaving lawful issue of his body, then and in such case the moiety of the rents and profits of him so dying to be applied towards the support, maintenance and education of the heirs of his body, in like manner as is hereinbefore directed respecting my said two nephews, until their arrival at the age of twenty-one years, and from and after the arrival of the survivor of them my said nephews at that age, then to the use and behoof of such survivor, his heirs and assigns; and in case both of my said nephews shall attain to their respective ages of twenty-one years, then to the use and behoof of the said John Evans and Job Phillip, as tenants in common and not as joint tenants, for and during their respective natural lives; and from and after their respective deceases, to the use of the respective heirs of their bodies lawfully issuing, as tenants in common and not as joint tenants; but if the said John Evans shall

die without leaving any lawful issue, then I give and devise all and singular the said hereditaments to the said Job Phillip and his heirs; and if the said Job Phillip shall die without leaving any issue, then I give and devise the said hereditaments unto the said John Evans and his heirs. And I do hereby give and devise all that messuage situate in High Street, &c., and also a house adjoining, fronting the Back Lane, with the appurtenances, in as large and ample a manner as I purchased the same of the said C. R. Jones and others, together with all erections and buildings thereon built, or hereafter to be built, unto my said dear wife Elizabeth, for and during her natural life; and after her decease I give and devise the same to John Adams, the nephew of my said wife, and the heirs of his body lawfully issuing; and for want of such issue I give and devise the same to such and so many of the sisters of him, the said John Adams, as shall survive him, as tenants in common and not as joint tenants, and to their respective heirs. And I do hereby give and devise all the rest of my real estate, whatsoever and wheresoever situate (not hereinbefore particularly devised) unto my said dear wife, Elizabeth Thomas, and her heirs. And I do hereby give and bequeath all and singular my personal estate, whatsoever and wheresoever, and of what nature or kind soever the same may be, unto my dear wife, Elizabeth Thomas, her executors, administrators and assigns, absolutely for ever, subject nevertheless to the payment of two pounds and ten shillings yearly, towards the support, maintenance and education of Elizabeth Thomas, the daughter of my brother Thomas Thomas, until she shall arrive at the age of fifteen years, and no longer. And I do hereby nominate, constitute and appoint my said dear wife, Elizabeth Thomus, sole executrix of this my last will and testament. In witness," &c.

The special verdict further stated, that afterwards, and before the said several times in the said declaration respectively mentioned, and also before and at the times of the making of the indentures of lease and release hereinafter

18S0.

759

WILLIAMS

V.

GOODTITLE.

mentioned, C. R. Jones, Esq., was seised in his demesne as of fee of three messuages, situate and being in Greenhill, within the franchise of the said town of Swansea, in the county of Glamorgan, and also of a certain close, situate and being within the said franchise: one of which messuages is one of the dwelling-houses in the said declaration mentioned, and is described in the codicil hereinafter mentioned as an old thatched house or cottage; and that the said C. R. Jones, being so seised, did, by indentures of lease and release, bearing date respectively 15th and 16th March, 1799, and made between the said C. R. Jones and others, of the one part, and the said David Thomas of the other part, for the consideration in the said indentures respectively mentioned, grant, release and convey to the said David Thomas and his heirs the said three messuages and the said close, by virtue of which indentures, and by force of the statute made, &c., the said David Thomas became and was seised as of fee of the said three messuages and the said close, and being so seised, did afterwards, and before the date of the indenture of lease hereinafter next mentioned, erect and build on the said close a certain messuage, meeting-house or chapel, called, &c., being one of the said messuages in the said declaration mentioned, and did also erect, build and make thereon all the residue of the dwelling-houses &c. in the said declaration further mentioned, and also several other messuages and dwellinghouses, making altogether the sum of the houses so erected and built by the said David Thomas, together with the said three messuages thereinbefore first mentioned, greater in number than the sum of the houses in the said declaration mentioned, together with the six houses by the codicil hereinafter mentioned specifically devised to Jane Phillip, Elizabeth Thomas and Elizabeth Lloyd.

The special verdict further stated, that afterwards, and before the several times in the said declaration mentioned, to wit, on the 21st day of December, 1802, the said David Thomas, being so seised of the said close and of all the