Page images
PDF
EPUB
[ocr errors]

and his children. B, who was then unacquainted with the plaintiffs, sent instructions to counsel to prepare the settlement accordingly, but directed that a general power of appointment should be limited to the lady in default of children.

The ⚫ draft so settled by counsel was returned to A, who procured it to be engrossed. On A tendering the engrossment to W for his execution, as a trustee, W objected to the power of appointment, and thereupon A said that the power had been inserted by mistake, and immediately drew his pen through the clause, and so W executed it. On the following day the deed was executed by the plaintiffs and the other trustee in the presence of A, and was attested in the common form without any notice of the erasure. Subsequently a second attestation clause had been added, referring to the erasure, and the draft was altered to correspond with the deed. The marriage took place in July 1841, and in March 1842 the husband and wife filed their bill against A and W and the other trustee, charging that positive instructions were given to A for the insertion of the power in question, and that it was struck out by the fraudulent collusion of A and W, and praying that the deed might be rectified according to the intention of the parties, and for the appointment of new trustees, or that the latter might be declared trustees for the appointees of the wife. The defendant A died before putting in his answer: -Held, that though the terms of the settlement alone did not furnish a ground for the relief prayed, yet those terms, taken in connexion with the circumstances, made it incumbent on W, in his position as trustee, not to allow the clause to be struck out without consulting the lady; and that an issue or an inquiry must be directed to ascertain whether, at the time of her execution, the lady was aware that no power was reserved to her of disposing of the property away from W and his children. Harbidge v. Wogan, 15 Law J. Rep. (N.S.) Chanc. 281; 5 Hare, 258.

(D) SCHEDULE.

The defendant, by deed reciting that he owed the plaintiff 1001, assigned certain articles, generally described in the deed, to the plaintiff, to have and to hold the same assigned as per schedule to the plaintiff, &c. The deed contained a covenant on behalf of the defendant to pay the plaintiff 1007. on a certain day. The money not being paid, the plaintiff brought an action on the covenant. At the trial, the defendant objected that the deed could not be read for the plaintiff as evidence, unless the schedule were produced and read by him also :Held, that the schedule formed no part of the deed, though referred to therein. Dains v. Heath, 16 Law J. Rep. (N.s.) C.P. 117; 3 Com. B. Rep. 938.

A deed conveyed the messuage and land called G Farm, consisting of particulars specified in a schedule and delineated in a map drawn on the schedule:-Held, that a close not included in the map and schedule did not pass by the conveyance, although it had been occupied with the specified closes and treated as part of G Farm. Barton v. Dawes, 19 Law J. Rep. (N.S.) C.P. 302.

(E) DELIVERY.

At the trial of a cause it was admitted that a

document "was signed, sealed and executed as it purports to be." The document, which was produced by the party who was to take a benefit under it, concluded "as witness the hands and seals of" (the parties), and the attestation was to the signing and sealing only:-Held, that it was to be inferred that the document was delivered, and amounted in law to a deed. Hall v. Bainbridge, 17 Law J. Rep. (N.S.) Q.B. 317; 12 Q.B. Rep. 699.

(F) REGISTRATION.

The 7 Ann. c. 20. s. 6. requires that "every memorial of a deed to be registered in the county of Middlesex shall express or mention the honors, &c. hereditaments and premises contained in such deed, and the names of all the parishes, &c. within the county where any such honors, &c. are lying or being, that are given, granted or conveyed by any such deed, in such manner as the same are expressed and mentioned in such deed, or to the same effect;" and the deed to be registered is required to be shewn to the registrar at the time of requiring the memorial to be registered. An application was made to register a deed of assignment which was indorsed on an indenture of lease. The assignment described the premises as "the messuage, &c. comprised in and demised by the within-written lease." The lease described the premises as "all that messuage in King Street, in the parish of Hammersmith." The registrars refused to receive and register a memorial stating the deed to be a deed of assignment assigning a messuage situate in King Street, in the parish of Hammersmith, by the description of the messuage, &c. comprised in and demised by the within-written indenture:-Held, that the registrars had acted rightly, as the memorial was not in compliance with the statute.

Where a deed indorsed on a former deed, and importing by reference the description of the premises, is to be registered, the memorial should give the dates and parties from both deeds, together with the description of premises from both deeds, and should state that the imported description is taken from the source referred to. R. v. Registrars of Deeds for Middlesex, 19 Law J. Rep. (N.s.) Q.B. 537.

DEER KEEPER.

Pulling a deer keeper to the ground and holding him there while another person escapes is not a beating of the deer keeper within the statute 7 & 8 Geo. 4. c. 29. s. 29. A mere battery is not sufficient to come within this enactment. There must be a beating in the popular sense of the word. R. v. Hale, 2 Car. & K. 326.

DEODANDS.

Deodands abolished by 9 & 10 Vict. c. 62; 24 Law J. Stat. 165.

DESCENT.

[See INHERITANCE ACT.]

[merged small][merged small][merged small][ocr errors]

Where defendant, after signing an acknowledgment that certain scrip had been "lodged in his hands" by plaintiff, and was to be re-delivered to him on request, wrongfully detained the scrip for a considerable time, so that its market value had been much diminished, and did not re-deliver it until after action brought :-Held, that the action was rightly brought in detinue, as the term "lodged" implied that the identical scrip was to be returned; and also, that plaintiff was entitled to more than nominal damages.

But where the plaintiff suffered loss by the detention, in this, that he was thereby deprived of the means of paying up his deposits, which would have entitled him to claim an allotment of one hundred other shares: -Held, that the damage was too remote, and that the plaintiff could not recover. Archer v. Williams, 2 Car. & K. 26.

In detinue for the detention of certain railway scrip re-delivered to the plaintiff after action brought and before verdict, the jury may as a measure of damages take into consideration the difference between the value of such scrip at the time of the demand and their value at the time of such re-delivery.

In such action, when by reason of a re-delivery before verdict a subsequent delivery becomes impossible, the jury may find the facts specially, and so confine themselves to an assessment of damages; and in such case the form of judgment may be simply that the plaintiff do recover his said damages and costs. Williams v. Archer, 17 Law J. Rep. (N.S.) C.P. 82; 5 Com. B. Rep. 318.

Where C insured his life and afterwards assigned the policy to the plaintiff, who paid the subsequent premiums, but allowed the party to retain the policy, and who afterwards deposited it as a security with the defendants for a loan,-Held, in detinue, that the question for the jury was, whether the plaintiff fraudulently permitted the assured to hold the policy, and represent that he was lawfully possessed of it, and entitled to the money secured thereby, in order that he might cheat some one by borrowing money upon it; and the Judge would not ask the jury as to their finding on the issue without the word fraudulently; as, if the plea had

been pleaded without it, the plaintiff might have demurred to it. Neale v. Molineux, 2 Car. & K. 672.

To a declaration in detinue, alleging the delivery, by the plaintiff, of scrip shares to the defendant, to be re-delivered by him to the plaintiff, on request, after the payment to the defendant of a certain sum of money, averring the payment and subsequent request, and complaining that the defendant nevertheless detained the scrip; the defendant pleaded that the scrip were deposited with him as a pledge and security for a sum of money advanced by him to the plaintiff, and that, on repayment thereof to him, he, the defendant, tendered and offered to deliver up and return to the plaintiff the scrip shares, which the plaintiff then refused to accept and receive from the defendant:-Held, that the word "detain," in a declaration in detinue, means that the defendant withholds the goods, and prevents the plaintiff from having the possession of them; and therefore that the plea was bad, as being an argumentative denial of the detention.

Not only the common bailment, but any special bailment, in a declaration in detinue, is surplusage, and not traversable; the gist of the action being the detainer of the plaintiff's goods, which the defendant must answer. Clements v. Flight, 16 Law J. Rep. (N.s.) Exch. 11; 16 Mee. & W. 42; 4 Dowl. & L. P.C. 261.

The bailment in detinue is not traversable; and the Court therefore refused to give the defendant leave to add a plea traversing the bailment stated in the declaration. Clossman v. White, 18 Law J. Rep. (N.s.) C.P. 151; 7 Com. B. Rep. 43.

The record in an action of detinue, after alleging judgment by default, proceeded, "therefore it is considered that the plaintiff do recover against the defendant the said cattle, goods and chattels; or, if the defendant should not render the same to the plaintiff, the value thereof, and also the damages by the plaintiff sustained by reason of the detention thereof." It then averred the award of a writ of inquiry to assess the damages and costs (but not the value), the issuing of the writ and the assessment of damages. Then followed a formal judgment, "that the plaintiff do recover against the defendant the said cattle, goods and chattels; or, if the defendant should not render the same to the plaintiff, the value of the same, and that the plaintiff do also recover against the defendant his damages, costs and charges aforesaid by the inquisition above found, and also 271. 5s. by the Court here adjudged of increase to the plaintiff," &c. :Held, that the judgment was final, not interlocutory; that it was erroneous for not finding the value of the goods, nor giving any means of ascertaining it; that the defect could not be cured by a fresh writ of inquiry, as the court of error had no power to issue such a writ; that if the plaintiff had entered a remittitur as to the delivery of the goods or their value in the Court below before final judgment, he might have had judgment for the costs and damages only, but that as he had not done so, the judgment must be reversed altogether. Phillips v. Jones, 19 Law J. Rep. (N.s.) Q.B. 374.

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small]

(A) CONSTRUCTION OF, in general.

(a) General Limitations of Estates.

A devised estates to B his son in strict settlement, remainder to C for life, remainder to D the son of C, if living at C's death, for life, remainder to the first and other sons of D in tail, remainder to the male heir for the time being entitled to a certain family estate, remainder to the first and other sons of such male heir, remainder to testator's own right heirs of his name, and he directed the residue of his personal estate to be laid out in lands to be conveyed to the uses of the will. B, who was his executor, did not lay out the personal estate as directed by the will of A, but by his will directed that certain real and personal estate should be conveyed and assigned to the trustees of A.'s will, upon the trusts of that will, as an equivalent for the residue of his father's personal estate. real and personal estate was not conveyed or assigned to the trustees. On the death of B, without issue, C entered into possession of the real

The

estate devised by both wills, and of the personal estate bequeathed by the will of B. On the death of C, D entered into possession of all the same estate, and died without issue. At his death, there was no male heir entitled to the said family estate : -Held, that the ultimate limitation to the right heirs of A of his name vested at his death, and not at that of D.

That the co-heiresses of B, or parties claiming under them, were entitled to the real estate devised by the wills of A and B.

That the Court might send a case to a court of law, to try the right under both wills.

That the personalty bequeathed by B was to be deemed to be converted into and to have descended as real estate. Wrightson v. Macaulay, 17 Law J. Rep. (N.S.) Chanc. 54; 4 Hare, 487; 15 Law J. Rep. (N.S.) Exch. 121; 14 Mee. & W. 214.

A testator directed that an estate should be purchased by his executors, and that such estate should be made hereditary and settled upon his constituted heir. He then appointed his nephew his heir and successor, and desired that the estate should be settled upon him, and should descend to his heirs and successors in the direct male line, and in case of his nephew dying without issue, the estate to devolve upon his brother, his heirs and successors in the direct male line:-Held, that the nephew was not to take as tenant in tail in possession, but that the estate was to be settled upon him for life, with remainder to his sons in tail male, and afterwards to the next taker and his sons in like manner. Shelton v. Watson, 18 Law J. Rep. (N.s.) Chanc. 223; 16 Sim. 543.

A testator devised certain lands in strict settlement, with liberty to each tenant for life, in succession, to cut down timber and to get stone upon the premises, for buildings and repairs, but for no other use or purpose whatsoever; and in the latter part of his will he recited that he had already restrained, and did thereby intend to restrain, each and every such tenant for life from cutting any timber or getting any stone upon the premises, save for the purposes aforesaid:-Held, upon the whole will, that the clause was restrictive, and, consequently, a tenant for life was not entitled to get stone from quarries open at the testator's death, save for the purposes in the will mentioned. Ferrand v. Wilson, 15 Law J. Rep. (N.s.) Chanc. 41; 4 Hare, 344.

A testator, W, devised his real estates to trustees, upon trust to receive the rents, and on his son John arriving at the age of twenty-five years to let him into possession, but neither he nor his heirs to the third generation were to sell or mortgage the same, it being the testator's desire that the property should remain in the W name. If John should die without leaving lawful issue, it was the testator's will that his daughter Ann should have his share, subject to the same limitations. If John and Ann should die under age, or without leaving issue, the testator devised the property (after deducting a certain sum from the produce in favour of his (the testator's) daughter Elizabeth), to and for the benefit of the plaintiffs. The testator had the three children named in his will living at his death, and no more. Elizabeth died at the age of two years. Ann survived her and died at the age of

nineteen years unmarried; and John, the last survivor, died, aged thirty years, leaving children, who all died unmarried, and without issue. John, by his will, devised part of the father's real estate to the defendants:-Held, first, that the devisees of John took no estate in the hereditaments of W devised by his will; and, secondly, that the plaintiffs took the estate in the same hereditaments in such manner as given to them by the will of W.

Where there is a doubtful question as to the legal title to an estate on the construction of a will, the practice is, not to determine it on demurrer, although the inclination of the Court may be in favour of the defendant, but to overrule the demurrer without prejudice to the defendant, insisting on the same matters by way of answer. Mortimer v. Hartley, 3 De Gex & S. 316. [And see this case, post, (C); (d).]

A testator gave his residuary estate in trust to his brother E, to assist him in bringing up his four nephews, the children of his brother J, and when the youngest nephew attained twenty-one, the property to be equally divided amongst his nephews or their lawful issue, share and share alike; the division, however, was not to take place, although the youngest nephew had attained twenty-one, until the decease of the testator's wife, his sister, and his brother E. One of the nephews died under twentyone, without issue, and before the testator's wife, sister, and brother: Held, that the testator's brother E took the legal estate in fee, subject to the trust for the nephews; that the nephews took an estate tail; and that the representatives of the deceased nephew took the share he was entitled to, and that the purport of the will required the word "or" should be read "and." Parkin v. Knight, 15 Law J. Rep. (N.s.) Chanc. 209; 15 Sim. 83.

A testator gave to his wife the use of all his property, both real and personal; and after her death his nephew was to be considered as heir to all his property not otherwise disposed of; but he directed that such property should be secured by his executors for the benefit of his family:- Held, that the nephew was entitled to a life estate only; that his wife was not entitled to any interest in the property; and that the real estate was to be settled after the death of the nephew upon his first and other sons successively in tail male, with remainder to his daughters as tenants in common in fee; and that the personal estate was to be divided, on the death of the nephew, among all his children as joint tenants who should attain the age of twentyone or marry, and if they should all die under that age and unmarried (if daughters) or without issue (if sons) then to the nephew absolutely. White v. Briggs, 17 Law J. Rep. (N.s.) Chanc. 196; 15 Sim. 17.

Devise of lands of gavelkind tenure to trustees upon trust to sell a competent part for payment of debts, and subject thereto upon trust for P M for life, and after his decease, for the first son of P M for life, and after his decease for the first son of such first son, and the heirs male of his body, and in default of such issue for every other son of P M successively for the like interests and limitations: and in default of issue of the body of P M, or in case of his not leaving any at his decease, for T M for life, and after his decease for T G M, the eldest

son of T M, for life, and after his decease for the first son of G T M and the heirs male of his body; and in default of issue of the body of G T M, for every other son of T M successively for the like estates and interests; and in failure of all such issue of the body of T M, in trust for him in fee, provided that if P M or T M, or any of their issue, should become entitled to the J estate, then upon trust for the next person entitled under the will, as if the person so succeeding to the J estate were dead. T M died after the date of the will, and the testator by a codicil declared a trust of the devised estates for his wife for life, and after her death upon the trusts declared by his will, subject to the proviso as to the J estate:-Held, that P M took an estate for life only that T G M took an estate for life in remainder after P M's life estate contingent on PM not leaving issue, and determinable on his succeeding to the J estate: that the eldest son of T G M took a contingent remainder in tail after the determination of the life estate of his father. Monypenny v. Dering, 7 Hare, 568.

Testator gave freehold and leasehold estates to trustees on trust to settle the same, so that his six younger children should receive the rents and profits in equal shares during their lives, with benefit of survivorship if any of them should die without leaving issue; and if any should die leaving issue, that the child or children of him or her so dying during the lives of his said other children and of the survivor should take the share of him or her so dying, and that on the death of all his said other children, the leaseholds to go to the issue of his said other children for their respective lives in equal shares, with benefit of survivorship: and as to the freeholds, the issue of his said children to take the rents, &c. thereof for their respective lives in equal shares, with benefit of survivorship in case of the death of any of such issue without leaving issue, and if any of such issue of his said children should die, leaving issue, the child and children of him or her so dying during the lives of such issue of his said children and of the survivor of them should take the share of him or her so dying; and after the death of all the issue of his said children, then, as to the leaseholds, to the child and children of such issue absolutely, as tenants in common; and, as to the freeholds, in case the issue of his said children or any of them should leave issue living at the decease of the last survivor of the said issue, then that the same should be to the use of the child and children of the bodies of the issue of his said children, and of the heirs of the body and respective bodies of such child and children, and if more than one, equally to be divided amongst them as tenants in common; and if there should be a failure of issue of the body or bodies of any such child or children, then as to the original and accrued shares of such child or children, whose children should so fail, to the use of the remaining children, and the heirs of the body of such remaining children, and, if more than one, equally as tenants in common, and in default of such issue of the issue of his said children to the use of the testator's right heirs. The six younger children of the testator survived him. Some of them had children at the time of his death, and some had children born after his death:-Held, that the six younger children took

life interests in both freeholds and leaseholds, with remainder as to the freeholds to their children as tenants in common in tail, with cross-remainders between them, with ultimate remainder to the testator's right heirs; and semble that the children of the six younger children after the decease of the last survivor of their respective parents took the leaseholds absolutely.

That the limitation to the unborn children of the testator's children was not void for remoteness.

That the word "issue" might be read "children" in the gift over after the testator's children. liams v. Teale, 6 Hare, 239.

(b) Period of Vesting.

Wil

A testator, after devising real estates to trustees, to the use of JDP for life, remainder to his first and other sons in tail male, with like remainders to JTP for life, and to his sons in tail male, and to several others, bequeathed real and personal chattels to the same trustees, upon trust to permit the said JDP to receive the profits for his life, and after his decease to permit each of the several other persons, to whom an estate for life in the real estates was before limited, as each of them should become seised of said real estates under the aforesaid limitations, to receive the rents and profits thereof for his and their life and lives respectively; and from and after the decease of the last of the said tenants for life as should become seised in manner aforesaid, or if none of them should so become seised, then from the decease of the said J D P, upon trust to assign and convey the chattels to such person or persons as should then become seised of the said real estates under any of the limitations aforesaid:"-Held, that the chattels vested in an infant, grandson of J DP, who was tenant in tail of the real estates at J D P's death, and not in his eldest son, a prior tenant in tail, who died in JD P's lifetime. Potts v. Potts, 1 H.L. Cas. 671.

A testatrix gave to the eldest son of her daughter Eliza and of her husband E L, who should be living at the time of her own decease, 101. 10s., adding that she left him no larger sum, because he would have a handsome provision from the estates of her late husband and of his own father (who was still alive) and she gave the residue of her property to her executors, upon trust, as to one moiety thereof, to pay and divide the same unto and amongst all the children of her daughter Eliza, who were then in being or should be thereafter born, except her eldest son, or such of her sons as should, by the death of an elder brother, become an eldest son, equally to be divided amongst them, and the survivors or survivor, when the youngest should arrive at the age of twenty-one years. At the death of the testatrix, her daughter Eliza had five children, and the eldest son was provided for from the estates in the will mentioned, and he received the 107. 10s. but died, without issue, before the youngest child attained twenty-one. The second, who then became an eldest son, did not succeed to the provision which had been made for the eldest son: Held, notwithstanding, that he, being the eldest son at the time the youngest of the children attained twenty-one, was excluded from any share in the moiety of the residue. Livesey v. Livesey, 2 H.L. Cas. 419.

Devise of real estate to A for life, and after her death to all the children of A born at the time of her death. A had two children, both of whom died in her lifetime:-Held, that the shares in the real estate vested in them indefeasibly at their births. Paterson v. Mills, 18 Law J. Rep. (N.S.) Chanc. 449.

Devise and bequest of real and personal estate to trustees upon trust (subject to certain legacies and annuities) for A for life, and after his decease upon trust to convey, assure and pay the whole of the real and personal estate to and amongst the children of A and the issue of any such children. But in case A should die without issue, then to pay and distribute the same equally amongst all and every the children of B and A and the survivors of them; but in case any of such children should be then dead leaving issue of his, her or their body or bodies, then such issue to have as well such original share as their father or mother would have been entitled to if living, as also such other share as their father might have been entitled to by survivorship or otherwise. A survived the testator and died without issue-Held, that the period of the survivorship of the children of B and C was not to be referred to the death of the testator, but to the death of A, that being the period of distribution. v. Fawcett, 4 Hare, 536.

(c) Meaning of Words.

(1) "Issue."

Buckle

Testator devised lands to his grandson, G D, to hold the same unto and to the use of the said G D, for the term of his natural life; and from his decease unto and to the use of all and every the lawful issue of the said G D, their heirs and assigns for ever, equally, as tenants in common, and not as joint tenants, when and as he or they should attain his, her, or their age or ages of twenty-one years. And testator devised all the residue and remainder of his real and personal estate and effects, whatsoever and wheresoever, not before otherwise disposed of, to his daughter S D, absolutely for her own sole and separate use:-Held, that issue was to be construed " 'children," and that G D took only an estate for life, with remainder to his children as purchasers; therefore, that on his dying without issue, S D took under the residuary devise, although G D had in his lifetime executed a deed of disentailer; inasmuch as such deed, executed under the 3 & 4 Will. 4. c. 71, does not bar future contingent estates, unless executed by a party who was in fact tenant in tail. Slater v. Dangerfield, 16 Law J. Rep. (N.S.) Exch. 51; 15 Mee. & W. 263.

PJ, by his will, dated in 1779, left large real estates to his wife for life; and after her death, to his daughter D, wife of Sir J E, for her life; and after her death, to her eldest son R E, for his life; and after his death, to the first and other sons of RE, severally and successively, and the heirs of their respective bodies, and in default of such issue to the testator's grandson M J E, the second son of his daughter, in case he should not become seised of certain estates (devised by M D); and after the death of MJ E, the testator devised the said estates, upon the conditions aforesaid, to the first and other

« EelmineJätka »