Imatges de pàgina

In 1817 Sir Thomas S. M. Stanley came to a settlement of accounts with his guardians, and allowed them all the sums paid by them for the redemption of the land-tax. In the rental of the estates the rent-charge in lieu of land-tax was kept distinct from the rents paid by the tenants. In all the leases of the property granted after the settlement the tenants were made to covenant for the payment of their rents and as separate items, for the payment of the charges in lieu of redeemed land-tax, and these charges were always paid by the tenants to the tax collector of the district and by him accounted for to Sir Thomas S. M. Stanley.

There were two sons of the marriage of Sir Thomas S. M. Stanley, namely, Wil. liam Thomas Stanley Massey Stanley and Rowland Errington Stanley.

Sir Thomas S. M, Stanley, by his will dated in July 1841, devised the unsettled parts of the Puddington estates, and the rent-charges in lieu of land-tax on all the Puddington estates, settled and unsettled, to his second son, Rowland Errington Stanley, for life, with remainders over. The will contained a power for the testator's trustees to sell the devised Puddington estates and the rent-charges in lieu of land-tax in the usual manner, with a right of pre-emption for William Thomas S. M, Stanley, his eldest son. The testator died in August 1841.

Sir William Thomas S. M. Stanley gave notice to the trustees of his intention to purchase the property in respect of which such pre-emption was given.

The bill in this case was filed by the trustees of the will of Sir Thomas S. M. Stanley, for a specific performance of a contract to purchase the property. The only question, however, between the parties to be decided was, whether Sir William Thomas S. M. Stanley ought to pay for the rent-charges in lieu of land-tax on the settled Puddington estates. .

18th and 37th sections of the 38 Geo. 3. c. 60, and cited Ware v. Polhill (1).

[Knight Bruce, V.C. said that there were two questions : first, whether these rent-charges had been conveyed by the marriage settlement, and so passed to Sir William Thomas S. M. Stanley under the limitations contained in the settlement; and secondly, whether, independently of the settlement, these rent-charges had been merged in these estates.)

Mr. Bacon and Mr. Bates, for the defendant.--Under the general words of the settlement, “rights, members and appurtenances, yearly and other rents, issues and profits, and all the estate, &c. of Sir Thomas S. M. Stanley," the rent-charges had passed. This view is confirmed by the language of the covenants for title. Independently, however, of the settlement, these rent-charges are merged. The evidence of their having been kept separate is not conclusive. If they had been merged, they could not be revived by such means. If they were not merged, the keeping these items separate is quite consistent with the intention of merging them, if the merging depended on intention after the settlement, as this method may have been adopted by Sir Thomas S. M. Stanley as the best way of obtaining the income of the property. They referred to the 17th and 37th sections of the 38 Geo. 3. c. 60, and cited Astley v. Miller (2).

KNIGHT BRUCE, V.C.-I think that it would be a misconstruction of the settlement to say that it included the land-tax, whether the parcels or the covenants are looked at, supposing that there was no merger. I think that the intention of the parties was otherwise, and that the words are not sufficient to upset the intention. The question then is, was the land-tax merged ? I think that the evidence shews that it was not intended to be merged. I think that the evidence shews that it has not been merged. I think that the plaintiffs have what the defendant agreed to buy of them. With reference to costs, I think that it was a fair question to try, and there will be no costs on either side.

Mr. Wigram and Mr. Riddell, for the plaintiffs, contended that the rent-charges in lieu of land-tax on the settled Puddington estates had not been merged and had been kept separate, and that Sir Thomas S. M. Stanley had the power of disposing of them by the will. They referred to the

(1) 11 Ves. 257. (2) 1 Sim. 298.


} CONSTABLE V. BULL. April 28. Ja

Will Construction Whatever remains."

A testator, by will, directed his debts, fc. to be paid, and then gave, devised, and bequeathed all and every his estate and effects, whatsoever and wheresoever, to his wife M. A. C. for her sole separate use and benefit; and further gave, willed, and directed that, at her death, whatever remained of his said estate and effects should go to the persons therein named : -Held, that M.A.C. was not absolutely entitled to the testator's property.

Constable--the object of the suit being to determine whether Mrs. Constable took an absolute or a qualified interest in the testator's property.

Mr.Wigram and Mr. Kent, for the plaintiffs, contended that under the terms of the will there was only a life interest given to the widow, with a gift over to the other legatees named in the will, and cited

Duhamel v. Ardovin, 2 Ves. sen. 162.
Hands v. Hands, 1 Term Rep. 437, n.
Surman v. Surman, 5 Madd. 123.
Gibbs v. Tait, 8 Sim. 132.
Doe d. Stevenson v. Glover, 1 Com. B.

Rep. 448; s. c. 14 Law J. Rep.
(n.s.) C.P. 169.

John Constable made his will, dated the 19th of February 1846, which commenced as follows:-"I direct that all my just debts, funeral and testamentary expenses, be paid out of my estate as soon as convenient after my decease. I give, devise, and bequeath unto my dear wife, Mary Ann Constable, all and every my estate and effects, goods, chattels, houses, lands, monies, and securities for money due, or growing due, every matter and thing what soever and wheresoever the same may be at the time of my decease, for her sole separate use and benefit. I further give, will, and direct that, at the decease of my said wife, whatever remains of my said estate and effects shall go to and be equally divided, share and share alike, between the following persons hereinafter named, or to so many of them as may be then living." The testator then gave the legacies in the will mentioned to the several persons therein named, and appointed his wife sole executrix.

The testator died on the 17th of August 1847, and the will was proved by the widow in the December following. The widow died in December 1848, intestate. Administration to the estate of the testator was taken out by the plaintiff James Constable; and administration to the estate of Mrs. Constable was taken out by the defendant, Mr. Bull.

The bill was filed by Mr. James Constable, as administrator of the testator, and some of the legatees named in his will, against Mr. Bull, as administrator of Mrs. Constable, and the other legatees of Mr.

Mr. Giffard, for the legatees of Mr. Constable, who were defendants, contended that by the expression “ whatever remains" the testator might have meant what was left after payment of debts and the expenses attending the administration of the estate; or, considering that some of the property was of a perishable nature, he might have meant what was left after the wear and tear of it during the widow's life.

Mr. Russell and Mr. Metcalfe, for Mr. Bull, the administrator of Mrs. Constable.Mrs. Constable became absolutely entitled to the property under the will of the testator. It is established by a long train of authorities that, where there is an absolute gift to A, followed by a gift of "what remains" — " what is left" - or similar words—to B, the latter words will have no effect given to them. The law will not allow the absolute ownership of property to be qualified.

The Attorney General v. Hall, Fitz.

314; s. c. 1 Jac. & Walk, 158, n.
Bland v. Bland, 2 Cox, 355.
Malim v. Keighley, 2 Ves. jun, 333.
Pushman v. Filliter, 3 Ibid. 7.
Wilson v. Mayor, 11 Ibid. 205.
Bull v. Kingston, 1 Mer. 314.
Ross v. Ross, 1 J. & W. 154.

Mr. R. Fisher, Mr. Toller, Mr. Craig, Mr. Bichner, and Mr. Chichester, for other parties.

KNIGHT BRUCE, V.C. There is this difficulty in the way of adopting the suggestion offered by Mr. Giffard (which had joined with other legatees in his answer ; B. answered separately :-Held, that B. was not entitled to costs out of the testator's general estate.

before occurred to my mind)—that it is impossible to attribute to the testator the notion that the payment of the debts and the funeral and testamentary expenses was to be postponed until after the decease of the widow. The gift to the wife is universal in the first instance; and then follow the ulterior gifts, with the words “ whatever remains of.” I have already said that the only question is, whether the use of these three words “ whatever remains of" has the effect of preventing the gift to the widow being construed as a life interest. It is quite clear that if these three words were omitted, the terms of the gift subsequent to the gift to the widow would cut down her estate to a life interest. The ques. tion is whether, in the present state of the authorities, I am bound to put such a construction on the words here used as to destroy the intention of the will. As at present advised, I think that the state of the authorities is not such as to require me to do so. There are several theories which might be attributed to these words, any one of which would be inconsistent with the construing them so as to give the widow the power to spend, give away, or dispose of the property in question. I think, as at present advised, that the other legatees have a substantial interest under the words used by the testator, and that such of them as were living at the death of the widow will be entitled. Unless I mention the case again during the term, this will be my judgment. There must be inquiries as to parties, and to the state of the property at the death of the testator and at the death of the widow.

This was a suit for the administration of the estate of a testator. One of the legatees had, before the institution of the suit, assigned all her interest in the estate to a trustee, for the benefit of her creditors. Both the legatee and her assignee were made parties to this suit. The legatee joined with several other legatees in defending the suit. The assignee appeared and answered separately. A question was now raised as to the costs of the legatee and her assignee.

Mr. Osborne, for the assignee, contended that, as the legatee had joined with other defendants in the suit, so that no separate costs were payable on her behalf, he was entitled to his costs. At any rate one set of costs ought to be allowed for the legatee and her assignee.

Knight BRUCE, V.C. said that he thought that the general estate ought to have the benefit of the legatee having joined with other legatees, and that the assignee's costs ought to be a charge on his fund.

Mr. Spence, Mr. Wigram, Mr. K. Parker, Mr. Russell, Mr. Wright, Mr. G. L. Russell, Mr. Prior, Mr. Gaselee, Mr. Rudall, and Mr. Erskine appeared for the other parties.

The case was again mentioned on the last day of the term ; when His Honour said that he remained of the same opinion.

K. BRUCE, V.C.) HEYWOOD v. GRAZEApril 25, 27.

BROOK. Costs-Administration Suit -- LegateeAssignee of a Legacy.

A, a legatee under the will of a testator, assigned his interest to B. for the benefit of his creditors. A suit was instituted for the administration of the testator's estate, to which A. and B. were made parties : A.


April 19. ] GUDE C. Wo.

Will-Construction-Discretion of Trustees.

Bequest to A. and B. of a fund upon trust to invest on security, and to apply the interest on the principal for the benefit of C, in such way as A. and B. should think fit, during the life of C, and so that A. and B. should have the entire power over the fund, to dispose of the principal and interest, or any part thereof, or to withhold the same as they should think fit, without being accountable to C. or any other person ; and on the death of C, in case the said sum or any part thereof should be undisposed of, to stand possessed thereof on the trusts therein men

tioned. A. and B. paid the income to C. during their lives, and died, leaving C. sur. viving : Held, that C. was absolutely entitled to the capital.

Charlotte Howard, by her will, dated the 16th of March 1813, gave 1,5001. to W. H. Worthington upon trust to invest the same on the securities therein mentioned, and to apply the interest for the benefit of “the two daughters and Daniel, the youngest son, of her nephew, William Seaman,” until twenty-one or marriage, and then to divide the capital between them, and appointed W. H. Worthington to be her executor The testatrix made a codicil to her will, dated the 31st of October 1816, and thereby appointed Samuel Boydell to be joint executor with W. H. Worthington. The codicil contained the fol lowing clause :-“I do hereby revoke the said bequest of 1,5001., and in lieu thereof do hereby give and bequeath to the said William Henry Worthington and Samuel Boydell the sum of 5001. in trust to place out the same at interest on such securities as they may think fit, and to pay and apply the interest thereof, or the principal, for the use and benefit of Mary Ann Seaman, the eldest daughter of my nephew, William Seaman, in such way as they may in their discretion think fit, during the term of her natural life ; it being my wish and desire that they shall have the entire power over the same sum of 5001. to dispose of the principal and interest, or any part thereof, or to withhold the whole, and let the interest thereof accumulate as my said trustees may in their discretion think fit, without being accountable to her, the said Mary Ann Seaman, or to any other person whomsoever, for what they may think right to do respecting the same sum ; and upon the decease of the said Mary Ann Seaman, in case the said sum of 5001. or any part thereof, or any interest thereof, shall at that period remain undisposed of, upon trust to add the same to the sum of 1,0001. hereinafter mentioned, and to follow the trusts thereof." The testatrix then gave to her executors the sum of 1,0001. upon the same trusts for the benefit of Charlotte, the other daughter, and Daniel, the son, of William Seaman, as those contained in the will. By another codicil the testatrix gave to her executors a policy of assur

ance, and directed them to pay the premiums out of the income of the 5001, left by the first codicil for the benefit of Mary Ann Seaman, and to stand possessed of the policy upon the trusts declared by such codicil of the 5001. The testatrix died in 1820. In 1828 Mary Ann Seaman married George Gude. The executors paid the premiums on the policy out of the income of the securities on which the 5001. was invested, and paid the remainder of such income to Mrs. Gude. In 1842 the life in respect of which the policy was given fell in, and the sum of 1,2801. was paid to the executors in that respect. The executors paid Mrs. Gude 1001. and invested the remainder on certain securities, and paid her the income of all the securities. Mr. Boydell died in 1846 and Mr. Worthington in 1847. The bill was filed by Mr. and Mrs. Gude against the executors of Mr. Worthington and the other daughter and son of William Seaman, who had married Mr. Davies, and prayed for a transfer of the securities on which the 5001. and the money received in respect of the policy were invested.

Mr. Russell and Mr. Smythe, for the plaintiffs, contended that Mrs. Gude had, under the circumstances, become absolutely entitled to the property.

Mr. Freeling, for the other children of William Seaman, contended that they were entitled to the fund, or some portion of it, and cited Pink v. De Thuisey (1) and Weller v. Weller (2), cited in the argument in that case.

Mr. Bacon and Mr. Little for the executors of Mr. Worthington.

KNIGHT Bruce, V.C. - I take it that the discretionary power given by the testatrix to her executors was never exercised with respect to the principal. The discretionary power either has ceased to exist or it has been declined to be exercised. In either case the result is the same. Whether the power has ceased to exist or has been declined to be exercised, I am of opinion that the Court would correctly carry into effect the intention of the testatrix by declaring that the plaintiffs are entitled to take absolutely the whole of the fund.

(1) 2 Madd. 157. (2) Ibid. 160.

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Devise-Limitation, whether for life or absolutely.

S. G. granted and devised to trustees certain freehold property for the term of ninety-nine years, at a peppercorn rent, upon trust, to permit his wife and such persons as she should by will bequeath the same, to take to his, her, or their own use and benefit the rents, fc. of the said lands for the said term of ninety-nine years, exclusively of any husband of his said wife. The wife, after her husband's death, conveyed her interest in the property to certain persons represented by the defendant, and subsequently made her will, giving the property to the plaintiff :Held, that the wife of S. G. took the property for the whole term of ninety-nine years, and not merely a life estate, with remainder to such persons as she should appoint by will; and that she had conveyed away all her interest to the defendant.

The bill stated that by a deed executed on the 8th of March 1804, Samuel Glover granted and devised to Matthew Jefferys and John Jefferys, their executors and administrators, the freehold dwelling-house and closes or parcels of land called High Meadow, with the right of mountain feed and appurtenances thereto, for the term of ninety-nine years at the rent of a peppercorn, upon the special trust and confidence that they, the said Matthew Jefferys and John Jefferys, and the survivor of them, and the executors and administrators of such survivor, should and would permit and suffer his wife, Phillis Glover, and such person and persons, and their executors and administrators, as she should in and by her last will and testament duly executed give, devise and bequeath the same, to take to his, her, or their own use and benefit the rents, issues and profits of the said lands and premises, with their appurtenances, for and during the term of ninetynine years as aforesaid exclusively, and not withstanding her then present coverture or any future husband, and not to be subject or liable to the controul or disposal of any future husband she might thereafter intermarry with, and her receipt alone under her


hand to be deemed and taken as a good discharge and discharges for the same. That the said Samuel Glover died in 1808. The bill then alleged that the said Phillis Glover, the widow of the settlor, in 1807 contracted with Richard Crawshay for the sale of her estate for life only in the High Meadow, with fixtures and furniture, for the sum of 1,4001., and that the said estate for life only was, in 1810, conveyed to a Mr. Hall, the son-in-law of the said Richard Crawshay, and that he was put into possession and held it till 1817, when he died; upon which event the present defendant, Sir Benjamin Hall, his son, succeeded to and now held the said estate, with the manor and estates of Abercarne, of which High Meadow was part. The bill further stated that the said Phillis Glover by her will, dated the 29th of June 1819, gave the said High Meadow estate to her son, Peter Brown Glover, and her fifth daughter, the plaintiff, in equal divisions, with benefit of survivorship upon either of them dying without issue, and the plaintiff having survived her brother, who died in February 1844 without issue, the plaintiff became entitled to the entirety. No steps, however, were taken by either legatee to recover the property until twenty years had nearly run out, when an ejectment was brought against Sir Benjamin Hall, the tenant in possession. The plaintiff subsequently filed this bill, praying that she might be declared entitled to the property for the residue of the term of ninety-nine years after the death of her mother, Phillis Glover.

The defendant, by his answer, alleged that by a deed of the 16th of March 1810, in consideration of the sum of 1,4001. paid to the said Phillis Glover, the pieces or parcels of land and other premises comprised in the indenture of the 8th of March 1804, and all the estate, right, title, interest, term and terms of years of the said Matthew Jefferys, John Jefferys, and Phil. lis Glover were assigned, surrendered and confirmed unto Benjamin Hall, his executors, administrators and assigns. That upon the death of the said Benjamin Hall the trustees under his will entered into possession or receipt of the rents and profits of the same premises, and remained in such possession until the defendant at


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