Oldalképek
PDF
ePub

tions." The settlement contained similar provisions and trusts, in the same event, as to the funds of the intended wife, giving her, in such case, a similar power of appointment, and in default her property was limited in trust for her next of kin or personal representatives in a due course of administration according to the statute of Distributions.

The power did not appear to have been ever executed by Mr. Allen.

Mr. Allen by his will gave his residuary estate, upon trust for two charities, the Refuge for the Destitute and the Asylum for the Blind.

The testator died in 1825, leaving his wife surviving. At his death, Jane, the wife of Joseph Kilner, was his sole next of kin. Jane Kilner died in 1828, and her husband, having taken out letters of administration to her estate, afterwards died, and thereupon, the Plaintiff, the son of Jane Kilner, took out administration to his mother.

In 1832, after the testator's wife's death, an information of the Attorney-General v. Clark was instituted, at the relation of the treasurers of the charities, for the administration of the estate of the testator. In that suit, the accounts had been taken, and the funds apportioned, and the 5000l., being treated as part of the residuary estate of the testator, had been ordered to be transferred to the charities.

This bill was filed by the personal representative of the sole next of kin of the testator, against the surviving trustee of the settlement, and the executors of the will of Mr. Allen, alleging that he had been hitherto ignorant of the purport of the settlement, and praying that he might be declared entitled to the 5000l.

Mr.

1843.

KILNER

v.

LEECH.

1843.

KILNER

v.

LEECH.

Mr. Pemberton Leigh and Mr. Miller, for the Defendants, objected, that the bill was defective for want of the following parties; namely, first, the personal representatives of Joseph Kilner, the former administrator of Jane Kilner the next of kin; secondly, the next of kin of the testator's wife, who had an interest to contend, that they were entitled to participate in the fund, under the ultimate limitation of the settlement; and thirdly, the two charities, whom it was sought to deprive of the benefit of the proceedings in the AttorneyGeneral v. Clark in their favour,

Mr. Kindersley, Mr. Jolliffe, and Mr. Turner, contrà.

The MASTER of the ROLLS.

It is objected that the Plaintiff, the present personal representative of Mrs. Kilner, has not always been so, and that her former legal personal representative is a necessary party; but that can only proceed on the ground that he has incurred some liability. I do not think he is a necessary party.

Next, it is said, that the next of kin of the wife are necessary parties, and considering the question which arises, whether the wife is to be excluded under the ultimate limitation of the settlement, I think that the prudent course will be to make her next of kin parties.

There has been an

Thirdly, as to the charities. order in the other suit, for the transfer of the fund to them, and this bill seeks, in their absence, to take the fund from the parties already declared entitled to it. It is said that a mistake has been made by all parties, but whether that be so or not, there is the interest vested in the parties under the orders of the Court, and the former proceedings cannot be declared erroneous in their absence.

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

BURRELL v. THE EARL OF EGREMONT.

THE question in this cause was as to the right of the legal personal representatives of a tenant for life of real estates to recover, as against the remainder

man,

1843. Dec. 8. 16.

18, 19. 1844.

April 17.

A tenant for
will and
life, by his

under a

power,

charged the settled estates with 25,000l. for the portions of his younger children, to be raised by means of a term vested in trustees, payable at twenty-one, and to sink into the inheritance if a younger son should become an eldest, or die without issue before the day of payment. Subject, in the first place, to the sums thereinafter charged thereon by his will, he devised his fee simple estates to his eldest son for life, with remainders over. He then " gave and bequeathed" an additional 25,000l. amongst his younger children, "which several portions" were to be in augmentation of the "portions" already appointed, to be raised and paid to his said sons and daughters respectively, at such times, and under such conditions, and subject to such contingencies, and with such interest, as he had before directed and appointed their original portions by that his will. And he thereby charged his fee simple estates thereinbefore by him devised to his eldest son, with the raising and paying the said "portions" and sums of money to his said sons and daughters respectively, at the times and in the manner aforesaid; and after giving certain pecuniary legacies, he gave the residue of his personal estate, after payment of his debts and legacies aforesaid, to his eldest son; and he provided, that if the personal estate should not extend to pay such of his debts as should not be charged on his real estate and his said legacies, then he charged his fee simple estates to make good the deficiency, and he empowered his trustees to raise thereout, not only the sums thereinbefore charged on the said premises for his younger children and such deficiency, but all other sums necessary for the purposes of his will. Held, that the additional portions given to the younger children were a primary, if not an exclusive charge, upon the testator's fee simple estates devised to the eldest son for life.

If a tenant for life pays off a charge on the inheritance, he is prima facie entitled to that charge for his own benefit; but he may, if he think proper, exonerate the VOL. VII.

P

estate.

1843.

BURRELL
บ.

The Earl of
EGREMONT.

estate. In the absence of evidence, the presumption is, that he pays the charge for

his own benefit, and not for the benefit of the persons entitled in remainder; but evidence may

shew the contrary conclu

man, the amount of charges upon the estate which had been paid off by such tenant for life. The circumstances which gave rise to the question, were shortly as follows:

By the marriage settlement of Charles Earl of Egremont, dated in 1750, a term of years was vested in trustees for the purpose of raising, out of an estate in Yorkshire, the sum of 25,000l. for the portions of his younger children.

By his will, dated in 1761, Charles Earl of Egremont, appointed this 25,000l. for the portions of his younger children, and gave directions as to the payment of interest and the time of payment, and provided that if any younger son should become an eldest son, or if any for life paying younger son or daughter should die without issue, before the time of payment, his or her portion should sink

sion to be true. A tenant

off a charge upon the

estate, and in

the same

into

transaction merging the security, by taking an assignment connecting it with the legal estate of inheritance, prima facie puts an end to the charge; but something is required to manifest an intention to exonerate the inheritance. A simple payment of the charge, without more, is sufficient to establish the right of the tenant for life to have the charge raised out of the estate. He has no obligation or duty to make a declaration, or to do any act demonstrating his intention; the burden of proof is upon those who allege that in paying off the charge, he intended to exonerate the estate. A. B., being tenant for life of the testator's real estates, subject to a charge of 25,000/., and absolutely entitled to the residuary personal estate, paid off the charge, and obtained releases. At the time, he seemed to have conceived that, as residuary legatee, he was liable to pay the amount out of the personal estate, which was sufficient for that purpose. Nothing was done to keep the charge on foot. After the death of the tenant for life, it being determined that the 25,000l. was a primary charge on the real estate: Held, that it still subsisted as a charge on the settled estates, for the benefit of the personal representatives of the tenant for life.

In 1775, a tenant for life paid off a charge of 25,000l. affecting the settled estates. He died in 1857, having in the meantime taken no steps for keeping the charge alive. Held, that notwithstanding more than twenty years had elapsed, and that there had been no part payment or acknowledgment, the charge still existed in favour of his representatives, and had not been defeated by the Statute of Limitations (3 & 4 W. 4. c. 27. s. 40.) Held, also, that the statute cannot be applied to a case, where there is no assignable person liable to pay the charge, no person who, by the delay, could be induced to suppose that the charge was abandoned or merged, and where the rent, out of which the interest of the charge ought to be paid, is receivable by and belongs to the same person who is entitled to the interest.

Principles on which this Court assumes that a tenant for life, who is also the owner of a charge on the inheritance, has duly discharged his duty of keeping down the interest on the charge.

1843.

BURRELL

บ.

The Earl of

into the inheritance charged therewith, and not be raised or paid. He then devised his estates in Somerset, Dorset, and Cornwall (subject in the first place to the raising and paying the annuities and sums of money EGREMONT. then affecting the same, or thereinafter charged thereon by that his will, or any codicil he should thereafter think fit to add thereto), unto his eldest son George, and his assigns, for life, with various remainders over, under which the Defendant, the present Earl of Egremont, had become entitled to the estates in possession. He then gave as follows:-"I give and bequeath to my daughters Elizabeth and Frances the sum of 10,000l. a-piece, and to my sons Percy Charles and Charles William 2500l. a-piece, which several portions I will shall be in augmentation of, and as an addition to, the portions already provided for them by my said marriage settlement, and hereinbefore appointed to be paid to them as aforesaid, and shall be raised and paid to my said sons and daughters respectively, at such times, and under such conditions, and subject to such contingencies, and with such interest, as I have before directed and appointed their original portions to be raised and paid by this my will. And I do hereby subject and charge my manors, &c., and hereditaments in the several counties of Somerset, Dorset, and Cornwall hereinbefore by me devised to my eldest son, with the raising and paying the said portions and sums of money to my said sons and daughters respectively, at the times, and in the manner aforesaid."

After gifts of the mansion houses, and of an annuity of 300%., and of certain personal estate as heir looms, the testator gave certain pecuniary legacies, which he directed to be exclusively paid out of certain particular parts of his personal estate. And then he gave all the residue of his personal estate, after payment of his debts and funeral expenses, and the legacies aforesaid,

P 2

« ElőzőTovább »