The Decision
According to Dallas’s annotations, an unknown party known only as the “deviser” (the maker of a will by which real property is given as a gift after death), made a will by which he devised real estate to “the first Heir Male of I. S. when he shall Arrive to the Age of 21 Years” so long as that first male heir of I. S. paid the sum of 40 pounds to each of I. S.’s daughters, designated “A” and “B”. When the deviser died, I. S. only had the two daughters. Some time later, I. S. had a son, who reached the age of 21 years and paid his two sisters their 40 pounds each.
The issue before the court was whether the son of I. S. could take under the deviser’s will. Dallas reported that the defendant made three arguments. First, since the son of I. S. did not exist either at the time the will was made, or at the time of the deviser’s death, the son could not take under the will. Second, even if the devise might be construed as a “future devise”, the interest was too remote under the rule that a future interest must take effect within the lifetime of a life in being at the time of the deviser’s death, (or within 9 months thereafter, in the event of an unborn heir). Moreover, even if one of I. S.’s daughters, or grand-daughters, or an even later female descendant bore a son, who might arguably become I. S.’s male heir, that heir could not inherit under the rule against perpetuities. The third argument was that, since I. S. was apparently still alive, he could have no heir under the legal maxim “Nemo est Hares Viventis”. ("No one is the heir of a living person.")
The plaintiff responded by arguing, first that this was not a “present Devise”, because the devisor would have known at the time he made his will that I. S. did not at that time have a male heir. Second, the "Contingency" (that I. S. would have a son that reached the age of 21 and paid his two sisters their 40 pounds each), was not too remote for purposes of the rule against perpetuities, because it was clear that the devisor intended that the first son of I. S. take, not some more distant descendent, and that the deviser’s intent should be respected.
The court ruled that the deviser’s clear intent was that first son of I. S. should take, and that his intentions should be enforced.
It is not clear from the record of the decision or from Dallas’s annotations what relationship “the deviser” or I. S. or the son of I. S. had to either Ashton or Ashton’s Lessee, the parties to the proceeding before the court.
Read more about this topic: Lessee Of Ashton V. Ashton
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