HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.slavery/ssactsengr0736 and id is 1 raw text is: (ENERY V. FITZGERALD
to pleas and demurrers is, that a plea may be good in [467] part and bad in part ;
but that a demurrer, if bad in part, is bad as to the whole. But I never heard that
you might not assign more causes of demurrer than one.
I agree, that though this is an extraordinary bill, it is better that it should be
got rid of in the ordinary way, than that we should refuse the application of the
ordinary rules of the Court to it. It seeks to give the Court jurisdiction to try the
validity of a will of real estate, as to which it has no jurisdiction ; and to try the
validity of a will of personal estate, as to which also it has no jurisdiction. It is then
admitted, that there is nothing to support the bill, unless you can bring it within
the case of Atkinson v. Ifenshaw. That case went upon peculiar circumstances.
and also upon general principles ; and I do not withdraw from this, that where
the bill fairly brings forward the question, what is to be done while there is a lis
pendens, the Court will appoint an interim receiver. But this bill does not state
such a case. What part of it am I to believe ; that which states a suit which has
been put an end to, or the loose allegations in another part, that the Plaintiff is
proceeding to obtain letters of administration. . think the case comes within that
of Jones v. Jones, before the late Master of the Rolls, and the demurrer must be
allowed. (Jones v. Jones, 7 Price, 663.)
[468] GENERY v. FlTZGERALD. March 19, 1822.
[See Kidman v. Kidman, 1871, 40 L. J. Ch. 361 ; Bellairs v. Bellairs, 1874, L. R.
18 Eq. 517 ; In re Dumble, 1883, 23 Ch. D. 360; In re Williams, 1886, 54 L. T.
831 ; In re Townsend's Estate, 1886, 34 Ch. D. 361 ; In re Burton's Will, [1892]
2 Ch. 38.]
Under an executory devise of a residue of real and personal estate, the inter-
mediate rents and profits of the real estate pass, as well as the interest of the
personalty.
E. D. Fitzgerald, late of the island of Jamaica, by his will, dated in September
1815, after subjecting his real and personal estate to the payment of his debts,
legacies, and annuities, and giving to Sarah Genery an annuity of £600 per annum
for her life, and making provision for the maintenance of his reputed children,
Edward, Thomas, and William Fitzgerald, during their minorities, proceeded thus:
All the rest, residue and remainder of my estate, real, personal, or mixed, or of
what nature or kind soever the same may be or consist, and wheresoever situate,
subject as aforesaid, I give, devise, and bequeath the same, and every part thereof,
unto the eldest of my said three reputed children, E. F., T. F., and W. F., who shall
attain the age of twenty-one years, his heirs, executors, administrators, and assigns
for ever, charged and chargeable with the sum of £10,000 sterling money as afore-
said, to each of his brothers, if they or either of them shall attain their said age of
twenty-one years, and also with the legacy to my executors hereinafter mentioned,
in case they or either of them qualify and act under this my last will and testament.
He gave to each of his executors £100.
The testator died soon after making his will. He was seised (subject to a mort-
gage) of some real estates in the island of Jamaica, with the buildings, the slaves,
the cattle, and other stock upon them. The Defendant, Thomas Fitzgerald, the
brother and heir at law of the testator, claimed to be entitled to these premises, and
[469] to the rents and profits subject to the mortgage, until one of the infant sons
of the testator should attain the age of twenty-one, and to be absolutely entitled to
the equity of redemption in the event of their all dying under that age.
The decree pronounced by the Master of the Rolls, in July 1818, declared that
the Defendant, T. Fitzgerald, was not entitled to the rents and profits during the
minority of the infants : from this declaration he appealed.
Mr. Shadwell in support of the appeal. Where there is an executory devise of
real estate, and the intermediate rents and profits are not disposed of, they descend
to the heir at law: Bullock v. Stones (2 Ves. Sen. 521); the rule being different
as to personalty: Trevanion v. Vivian (2 Ves. Sen. 430). On the other hand,
if, after an executory devise of a particular estate, there is a general residuary clause,
it will carry the intermediate rents and profits of the lands first devised. But the
JACOB, 467,](ViewImageLocal?handle=hein.slavery/ssactsengr0736&div=1&collection=&method=preview&ext=.png&size=3)