1843.-Bustard v. Saunders. 1843: November 9. BUSTARD V. SAUNDERS. A sum of money was remitted to England, to be secured for the benefit of a married woman and her children, so that the same might not eome to the hands of her husband. Held, that they took as joint tenants. In this case, Achilles Preston the younger, some time before the year 1764, remitted from India to Achilles Preston the elder, his father, and Alexander Whitchurch his uncle, 500l., "which he directed to be secured for the benefit of his sister Ann, then the wife of Cuthbert Allanson, and her children, so that the same might not come to the hands or power of her husband." Ann Allanson had three children only, all of whom were born previous to the year 1764. Ann Allanson survived all her children, and died in 1812. The question was, whether the mother took this fund for life with remainder to her children, or whether they took in a class as joint tenants. Mr. Pemberton Leigh and Mr. Willcock, argued that the mother and her children took as joint tenants, and therefore that the mother became entitled to the whole by survivorship. *Mr. Faber, for the defendant.-There was a direction [*93] to secure the sum in question for the sister and her children, excluding the husband. A settlement was therefore contemplated, and in carrying into effect an executory agreement for a settlement expressed in such terms, the court would give a life estate to the parent, with remainder to the children as tenants in common. The following cases were cited, Jubber v. Jubber,(a) De Witte v. De Witte,(b) Vaughan v. The Marquis of Headfort(c) Robinson v. Tickell.(d) (a) 9 Sim. 503. (b) 11 Sim. 41. (c) 10 Sim. 639. 1844.-Man v. Ricketts. THE MASTER OF THE ROLLS said, he should follow the decision of De Witte v. De Witte, and he held that the mother and children took the 500l. as joint tenants.[1] 1844 February 20, 21, 22. MAN v. RICKETTS. An heir who disputes the will, may, by long acquiescence, lose his right to have its validity tried at law, upon an issue devisavit vel non, and where an heir had acted as devisee in trust under the will for a great number of years, he was refused an issue even to try the question of parcels. A will thirty years old, produced from the proper custody, proves itself. The thirty years are to be computed from the date of the will, and not from the death of the testator, and are calculated as at the time of its production. Heir at law being also the devisee in trust, misconducting his defence, ordered to pay all the costs of the suit. In the year 1802, the testator, George Crawford Ricketts, purchased a mansion and 166 acres of land adjoining thereto, which together were generally called and known as the Ashford Hall estate. [*94] *In 1804, the testator, on the marriage of his eldest son, the defendant Thomas Bourke Ricketts, charged a portion of this estate with a sum of 4000l. for the benefit of the defendant, his wife, and the children of the marriage. On the 26th of April, 1808, the testator made his will, whereby he devised as follows:-"As it is my wish and desire that all my estate in Shropshire, called Ashford Hall, should be sold, I do therefore give and devise the same unto my son Thomas B. Ricketts, and my son-in-law the Rev. R. F. Hallifax," "in trust to sell," &c. "The proceeds of such sale, after deducting what may be due on the mortgage given on my eldest son's marriage, I give and bequeath unto my sons and daughters in equal proportions, share and share alike." The testator died in April, 1811, leaving the defendant Thomas [1] Tomlin v. Hatfield, 12 Sim. 41. Bunner v. Storm, 1 Sand. Ch. Rep. 364. 1844.-Man v. Ricketts. B. Ricketts his heir at law; and shortly after in the same month, the will was proved by Thomas B. Ricketts and R. F. Hallifax. In October, 1811, the trustees put up the whole property, including 166 acres, for sale, and in the particulars the whole was treated as vested in devisees in trust for sale; the property, however, was not then sold. In 1812 it was again advertised for sale, in terms which showed that the whole was included. This second attempt to sell was again unsuccessful. In 1823, they sold a part of the estate to Miss Buckley, and in the correspondence of the defendant and on the treaty, no doubt was made either as to the name of the estate, or as to what had passed by the devise. The conveyance to Miss Buckley was executed in 1824, and thereby, after reciting the will, &c. the trustees conveyed, and *the defendant Thomas Bourke Rick- [*95] etts, as heir at law, confirmed, the portion of the property purchased. From the death of the testator, the defendant Thomas Bourke Ricketts retained possession of the property unsold. In 1831, one of the testator's children having become bankrupt, his assignees, in December, 1836, filed this bill against the trustees of the will and others, to have the trusts of the will performed, for an account of the proceeds of the property sold, and of the rents, and for the sale of the remainder. The will was not proved by the attesting witnesses, but was produced only from the proper custody, it being conceived that, being thirty years old, it proved itself. Mr. Kindersley, Mr. Turner, and Mr. Hallett, for the plaintiffs. Mr. C. P. Cooper, and Mr. Kent, for the defendant Thomas B. Ricketts, resisted the claim of the plaintiffs, insisting, first, that the will had not been properly proved in the cause; that if the mere production of an ancient will was sufficient proof, the thirty years must be computed from the death of the party, when it first had any operation, and must end before the filing of the bill, or at all events upon the filing of the answer contesting its vali VOL. VII. 11 1844. Man v. Ricketts. dity;(a) secondly, that under the devise of the estate called Ashford Hall, the hall or mansion and a few acres of land passed, and not the whole 166 acres; thirdly, that he was not accountable for the intermediate rents, or at all events not for more [*96] than six years; and, *lastly, that he was entitled to an issue devisavit vel non to try the validity of the will, or, at least, to determine the question of parcels. Mr. Tinney, Mr. Roupell, and Mr. Willcock, for other defendants. THE MASTER OF THE ROLLS-In such a case as this, I ought not to ask for a reply. It seems to me too clear a case. The only point on which I had a doubt was, whether under any circumstances the heir at law might not have an issue devisavit vel non. Three points have been raised here by way of defence. First, that it is not proved that there was any such will: secondly, supposing there was such a will, that it does not appear that the whole of this estate passed by it: thirdly, if it shall appear there was such a will, and that such an estate passed by it, then that the defendant is not bound to account for the rents and profits beyond six years. This case certainly surpasses any thing I have met with. The testator had purchased an estate in Shropshire, which was called the estate of Ashford Hall, or Ashford Hall estate, which estate is described in several deeds executed before the date of the will; the testator then makes this will, "As it is my wish and desire," &c. The will was dated on the 26th of April, 1808. The testator died in April, 1811, and the will was proved a very short time afterwards. The defendant Thomas Bourke Ricketts, who was himself entitled to the benefit of a mortgage on the greatest part, though not the whole of the property, accepted the devise, [*97] and, with his *co-trustee, took upon himself the execution (a) See M'Kenire v. Fraser, 9 Ves. 5; Doe dem. Oldham v. Wolley, 8 Barn. & Cr. 22; Holton v. Lloyd, 1 Mol. 30. On the last point see the cases of Tucker v. Sanger, M'Cleland, 424; S. C. 13 Price, 119, and see Earl of Fingal v. Blake, 1 Molloy, 113. 1844.-Man v. Ricketts. of the trust. In the same year he advertised the whole for sale, and described the whole as the Ashford Hall estate, or the estate called Ashford Hall, and as consisting of 166 acres of land being the whole of the land and property which is now in question. A sale was not then effected, and in the following year, he, consistently with the duty which was imposed upon him, together with Mr. Hallifax, again advertised the property for sale, not in the same words, but in words quite sufficiently descriptive to show, that the whole was meant. It is therefore a matter beyond all question, and a purely idle thing to doubt, for a moment, that he and his co-trustee accepted the devise made to them in trust :— that they undertook to perform the trust, and at that time fairly, honestly, and in due discharge of their duty endeavored to perform the trust, by selling the estate, in order that the proceeds might be divided, according to the direction of the will. The second attempt to sell was not more successful than the first. Several years elapsed which have not been accounted for, but there appears to have been a treaty, which ended successfully in the sale of a portion of the estate to Miss Buckley. The defendant, Mr. Ricketts, took an active part upon that occasion, and we have his correspondence on the treaty; in which there appears to have been not the least doubt or hesitation as to the name of the estate, as to what passed by the devise, or as to the duty of himself and his co-trustee. Upon the performance of the contract with Miss Buckley, a conveyance was executed to her, in which the testator's will is recited, and this gentleman and his co-trustee, as trustees, join in conveying. It is clear from this deed, that the particular attention of this gentleman was called, and must have been called, at the *time, to his own character as heir at [*98] law; for after conveying as trustee, he, in his character of heir, ratifies and confirms what had been previously done by the trustees; yet he now affects to say, in the first place, that there was no such duly executed will, and, in the next place, that a very small portion, and not the whole of these lands, passed by the will. This is by no means all. There continue a series of transactions, further negotiations with this lady, and a correspondence, which further evidences the nature of the case. |