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of the children being an infant, declined treated with some specialty, also contains a to decide the proper construction of the recognition of the general rule. The bequest bequest upon petition, and directed a suit there was "in equal shares between the to be instituted.
testator's kinsman, Richard Bricker, ChrisThe bill in the present case was accord- tian Bricker his sister, and his cousin ingly filed by the two children against the Stephen Whatley and Hester his wife, executors and against their parents, praying equally to be divided amongst them," and a declaration in accordance with the allega- "it being proved that the wife was only of tions of the petition.
kin to the testator and not the husband, Mr. Turner and Mr. W. D. Evans, for the Lord Keeper was of opinion that the the plaintiffs. There are two questions. husband and wife should have but oneFirst, whether the parents take life interests third part, and the rather for that he obwith remainder to the children, or whether, served the two ands in this devise, viz.on the other hand, the parents and children to A. B. and C. and his wife: and though a take together as joint tenants. Second, man may devise to ten persons, and add an supposing the latter to be held, whether and betwixt every person's name, yet it is Capt. Gordon and his wife are to be reck- not natural or usual to add an and till you oned as two persons or as one.
The rule come to the last person." Back v. Anof law, on the former point, recognized in drew (5) is another authority in which the Wild's case (1) and acted upon ever since, general rule stated by Littleton is recognized. is, that if there is a simple gift to parents and No authorities having a tendency to impugn children, and there be children living at the the rule are to be found until the modern time, the children take with their parents : cases of Paine v. Wagner (6) and Warif there be no children living at the time, rington v. Warrington (7). The former is then the parents take for their lives, with perhaps distinguishable from those which remainder to their children.
have been cited, and from the present, inas[The Master of the Rolls intimated much as the family between whom the his concurrence in this view, saying that he question arose, were named and described believed in all the instances where, in case as “Mr. and Mrs. W. and children." The of there being children living at the time, Vice Chancellor says,
“ all the parties the parents had been held to take life who are either named or described are interests with remainder to the children, the to take as between themselves as tenants gifts had not been simple, but had contained in common." His Honour seems, too, some intimation of an intention that they to have dwelt on the last circumstance, should so take.]
and to have considered himself authorized On the second point, the rule of law is to escape from the effect of the rule, by stated in Littleton (2) “If a joint estate be holding that the parties were not to take made of land to a husband and wife and to as joint tenants: a ground of distinction a third person, in this case the husband and which, it is submitted, is not tenable, and wife have in law in their right but the which was expressly disclaimed by Vice moiety. And the cause is for that the hus- Chancellor Wigram, in Warrington v. Warband and wife are but one person in law. rington. With respect to that case, bis In the same manner it is where an estate Honour distinguished it from those put by is made to the husband and wife and to two Littleton, by noticing that the husband and other men: in this case the husband and wife were not placed first in the enumerawife have but the third part and the other tion, as is always done in Littleton's illustwo men the other two parts.' The
anony- trations, and from Bricker v. Whatley by case reported in Skinner (3) is an noticing that the word "and" did not, as authority exactly in point to the same effect, there, occur before the husband's name to and was, like the present, the case of a afford an indication of his being intended as legacy. Bricker v. Whatley (4), though the last person in the enumeration. Whether,
however, these recent cases are or are not (1) 6 Rep. 16, 6. (2) Section 291.
(5) 2 Vern. 120. (3) Skinner, 182 ; s. c. 4 Vin. Abr. 154, pl. 10.
(6) 12 Sim. 184. (4) 1 Vern. 233.
(7) 2 Hare, 54.
distinguishable in their circumstances from it is submitted that, notwithstanding the the older authorities, it is submitted that rule laid down by Littleton, each of the the general rule laid down by Littleton was parents is entitled to an equal share with clearly established, and that it must be con- the children. The proposition that husband sidered still to be the law.
and wife are to be regarded as one person, Mr. Ayrton, for the executors.
is true for some purposes, such as questions Mr. Doria, for the defendant Capt. of tenure, which were principally in LittleGordon, contended that the intention of the ton's contemplation, but it cannot be contestatrix was that the parents should take sidered true for all purposes. The case of life interests with remainder to the children; The Attorney General v. Bacchus (10) is an but that if the Court should hold itself pre- instance to the contrary. The real question cluded from adopting this view, then that is, what was the intention of the testatrix, the parents were each entitled to an equal as it can be gathered from the mode of share with the children. In support of the expression made use of. The circumstance former, he cited Morse v. Morse (8) and of the word "and" before the husband's Jeffery v. Honywood (9.)
name, of which the occurrence in the case of Mr. Amphlett, for the defendant, Mrs. Bricker v. Whatley, and the omission in Gordon.-There can be little doubt that in the case of Warrington v. Warrington was all gifts of this kind the real intention relied on, as affording in the one case a (though it may have failed to be expressed presumption that he was and in the other or intimated,) is, that the parents should that he was not to be regarded as the last take for their lives with remainder to the person in the enumeration, may have been children. With respect to the general rule rightly so relied on in those cases where to the contrary, supposed to have been the husband and wife came last in the enuestablished by Wild's case, it may be re- meration. The case is entirely different marked, that no question of the kind was where, as in the present instance, the husreally in issue in that case, and that the band and wife come first in the enumeration; rule as there stated may consequently be and the question then is, what inference is looked upon as a mere dictum. Even, how- to be drawn from the insertion or omission ever, if it is to be taken as the rule, where of the word "and" between the names of the no contrary intention is intimated by the husband and wife. It is submitted that in testator, it is contended that the present these circumstances the case is just reversed, codicil does afford some evidence of a con- and that the insertion of the word would be trary intention. Looking at the reasons the ground for presuming the husband and assigned for the bequest in the case of Mr. wife to have been regarded as one person, Atcheson, it appears clear that in these and that the contrary inference is to be legacies the father was the primary object drawn from its omission :- “ To Capt. of the testatrix's bounty, and that the regard Robert Gordon and his wife, and his chilfor the children was simply derivative from dren,” would have been the natural mode that intended to be manifested for the of expression if the testatrix had looked parent. This consideration would lead to upon the husband and wife as one person. the conclusion, that all the children of the “To Capt. Robert Gordon, his wife and father were meant to share in the benefit of children," shews her to have contemplated his legacy, those after-born as well as those
them as distinct. Take the case of a person living at the death of the testatrix. In no speaking of the three estates of the realm other way, however, could this result be as consisting of "The Lords Spiritual and accomplished than by giving life interests the Lords Temporal and the House of Comto the parents. Supposing that the Court mons," there would be nothing in the exshould come to a contrary decision on this pression itself inconsistent with the notion point, and hold that the parents and the that the speaker regarded the Lords Spiritchildren living at the death of the testatrix ual and the Lords Temporal as forming one are to take together as joint tenants, then political body; but if the expression had
been “ The Lords Spiritual, the Lords (8) 2 Sim. 485. (9) 4 Madd. 398.
(10) 9 Price, 30; s. c. 11 Ibid. 547.
Temporal and the House of Commons," formed part of his estate in the hands of his the absence of any connecting particle be- executors; that an instrument of assigntween the two first bodies would repel the ment, bearing date the 7th of December notion that the speaker regarded them as 1842, was made between the said testator
and E. Q, which recited the said policies Mr. Turner, in reply.
of assurance, and further recited that th
said testator and E. Q. had for several The Master Of The Rolls said, he must years past cohabited together, and the said look at the cases. From the bequest itself E. Q. had had and borne four children he could collect nothing more than an inten- during such cohabitation, and who were tion that the husband, wife and children then respectively living, and that the should all derive a benefit from it.
said testator had determined to discon
tinue such cohabitation, and was desirous Aug. 3.— The MASTER OF The Rolls.- of making provision for the future mainThe only intention of the testatrix which is tenance of the said E. Q. and her said chilindicated by the will is, that a legacy of dren, and for that purpose had agreed to 3,0001. should be given to Capt. Robert secure unto her the payment of the annual Gordon, his wife and children. The tes- sum of 2501., by equal quarterly paytatrix has used no words from which it ments, for and during his natural life, can be discovered what, if any, intention if the said E. Q. should so long live, she had with respect to the proportions in and to assign to her the said two several which the legatees were to take and enjoy policies of assurance, and to continue the the legacy thus given to them jointly. same respectively on foot during his life, Under such circumstances the proportion as a provision for the said E. Q. and must be determined by the ordinary rule of her said children in case of his decease law applicable to such cases, and there being in her lifetime, but on condition that the nothing to distinguish the present case from monies to be received upon and by virtue of those in which the rule stated in Littleton, the said policies should be settled by the and applied in the several cases cited at the said E. Q. for the benefit of herself and her bar, was acted upon, I am of opinion that said four children as thereinafter expressed, the legatees must take in thirds-viz. the and the said policies in the mean time to be husband and wife one, and the two children held upon and subject to the like trusts ; each of them one.
and by the said deed of assignment it was witnessed, that in performance of the said
agreement, and in consideration of the V.C.
connexion which had theretofore existed Nov. 6, 11. j
between the said testator and E. Qi, the
said testator covenanted with E. Q. to Voluntary Settlement void against Creditors.
pay her the said annuity of 2501. during
his life : and the said testator further Where a testator had assigned a policy of assigned unto E. Q, her executors and assurance for the benefit of a female with administrators, the two before-mentioned whom he was cohabiting, the testator being policies of assurance, and the sums to belargely indebted at the time of making the come payable by virtue thereof; to hold assignment, it was held that such voluntary the same upon the trusts therein mentioned, assignment was void against his creditors. for the benefit of herself for life, and after
wards for her said four children. This was a creditors' suit, instituted against The bill charged that if the said alleged the executors of a testator, for the purpose indenture of assignment was in fact executed of recovering the amount of two policies by the said testator, yet that the same was so of assurance, which had been paid over executed by him at a time when he was insolto the executors. The bill stated that the vent or embarrassed, or at a time when he testator, at the time of his death, was was indebted to divers persons in considerpossessed of or entitled to two policies of able sums of money; and that the same was assurance, and that the same, at his death, executed by him without any pecuniary or
SKARFF V. SOULBY.
other good or valuable consideration for the Mr. Bethell, Mr. Bacon and Mr. Southsame; and that the said testator never parted gate for other parties. with the custody or possession of the said policies or either of them, but retained the same Nov, 11.-The Vice CHANCELLOR.- The in his possession or power until the time of only reason for which I reserved my jud his decease, and that he from time to time ment in this case was on account of certain paid the annual premiums which became representations as to certain statements in due and payable in respect of the said the bill; but it appears to me there is quite policies, and that a considerable part of his enough to reveal more than is necesestate and effects was applied in or towards sary. It is stated that the party was empayment of such premiums, and which but barrassed and insolvent at the time: that for such payment would have been assets is superfluous. It is quite enough to prove for payment of the debts of the plaintiffs that he was indebted at the time. In atand the other creditors of the testator. That tending to the language in Lord Townshend no notice of the said alleged assignment was v. Windham (1), Lord Hardwicke says, given to the said insurance companies or “I know no case on the 13th Elizabeth, either of them until after the death of the where a man indebted at the time makes a said testator, and that the said policies of mere voluntary conveyance to a child withassurance were not, nor was either of them, out consideration and dies indebted, but that handed over to the said E. Q. in the lifetime it shall be considered as part of his estate of the said testator, or until some time after for the benefit of his creditors." There is no his decease. That after the death of the doubt whatever in this case. The only obtestator the sums payable under the said servation I have to make is, that it is rather a policies amounted to 2,2501, and 3,0001. worse case for the defendant, the unfortunate That the said alleged indenture of assign- woman, than I had thought, because in that ment (if any) was and is fraudulent and very second volume of Vesey there stands void as against the plaintiffs and the other the case of Priest v. Parrot (2), where Lord unsatisfied creditors of the said testator ; Hardwicke refused to countenance the proand that the plaintiffs and the other unsa- vision for a woman who had been living tisfied creditors of the said testator are with a married man, in contradistinction entitled to have the said insurance and other to a woman living with a single man, conmonies, or so much thereof as may be sidering it as a præmium pudicitiæ. It struck necessary for that purpose, applied in aid me more forcibly because in Lord Campof the other personal estate and effects of bell's Lives of the Chancellors, his Lordthe said testator, in payment and satisfac- ship selects it as a prominent case for the tion of the debts due and owing to the purpose of shewing what was the turn of plaintiffs and the other creditors aforesaid. Lord Hardwicke's mind as to his decisions.
The bill prayed that it might be declared It appears to me, in this case, there must be that the said indenture of assignment was a decree that the settlement is void as against fraudulent and void as against the creditors creditors : the money in the hands of the of the testator, and that the monies assured executors to be assets for the payment of and made payable by the said two policies the testator's debts. of assurance were applicable to the payment of his debts.
For the defendant, it was contended, that V.C. the testator, although indebted to some ex- March 29. tent at the time of executing the assignment, L.C. was not so largely indebted as to make the Nov. 4,13. deed void against his creditors, and that the circumstances under which the assignment
Copyholds — No Admittance - Defective was prepared were not such as to render it
Execution of a Power. void as against the said E. Q.
A woman seised of copyholds executed a
surrender, jointly with her husband, to such Mr. Stuart and Mr. Younge appeared
(1) 2 Ves. sen. 10. for the plaintiffs, and
(2) Ibid. 160. NEW SERIES, XVIII.-CHANC.
SOWERBY V. GUTTERIDGE.
uses as her husband should appoint, and in defendant his only son and heir. J. Guttedefault of appointment, to him in see, but ridge, the husband of Mary, died in 1830. no admittance was entered under the sur- J. Gutteridge, the grandson of Mary, had render, The husband then executed a con- commenced an action of ejectment for reveyance of the copyholds to a purchaser, but covering possession of the copyholds, instill no admittance was entered. The plain- sisting that as J. Gutteridge, the husband, tiff, who claimed under the purchaser, filed had never been admitted, the estate desa bill to restrain an action of ejectment by cended to the defendant as heir of Mary. the copyhold heir of the wife, and to compel The plaintiffs thereupon filed this bill, a surrender to complete his title :-Held, praying for an injunction to restrain the that the husband of the copyholder had no defendant from proceeding with the action power to make perfect that title which he, of ejectment, and that the defendant might as a volunteer, and without consideration,
be ordered to be admitted as tenant, and took imperfectly, and no person claiming then to surrender to the plaintiffs, and do under him could ask that his defective title all necessary acts for vesting the whole should be made complete; and the bill was estate in them. dismissed, with costs.
The cause was first heard before the Vice
Chancellor of England, who gave the folThe bill stated that Mary Gutteridge lowing decision :was entitled in fee to a moiety of certain copyhold hereditaments, to which she had The Vice CHANCELLOR.- When this case been admitted, and she and her husband, was opened certain cases were cited, in which James Gutteridge, in November 1782, sur- the Court, where there has been a power to rendered this moiety to the use of herself appoint, has relieved against defective exefor life, with remainder to the use of her cution, when it was for valuable considerhusband for life, with remainder to the use ation. No doubt that is the law of the Court. of her heirs in fee, and she was admitted in The question now is, what the law ought to March 1787 as tenant for her life. In be, deduced from the cases cited. [His September 1791 she and her husband sur- Honour then went through the facts of the rendered the moiety to the use of herself, for case.] It appears to me that this case has the joint lives of herself and her husband, no resemblance to the case of a power well with remainder to him for life, with remain- created but imperfectly executed; here there der to such uses as he should by will was no attempt on the part of Mary and appoint, and in default of appointment to James Gutteridge to vest the copyhold fee in him in fee. No admittance was ever made James Gutteridge, but merely a voluntary of J. Gutteridge to the copyholds under this instrument, and left imperfect because there surrender, and in 1796 M. Gutteridge died, was no admittance, and J. Gutteridge had no leaving, as her copyhold heir, a son, named power to make perfect that title, which he, as James. In 1791, the husband purchased a volunteer, took imperfectly. It appears to the other moiety; and in January 1820, he me this is a case in which, inasmuch as contracted to sell the entirety to William there was no valuable consideration to be Oakley. W. Oakley, in February 1826, considered as the foundation of the copywas admitted in pursuance of this contract. hold title of James Gutteridge, no person
W. Oakley, the purchaser, by his will, claiming under him can ask that his dedevised his estate to his nephew, Richard fective title shall be made complete. The Oakley, and died in 1834. In 1843 a con- bill must, therefore, be dismissed with costs. tract was entered into by R. Oakley for the sale of this property, together with some The plaintiffs appealed from this decision, other property for 22,9411., and a release and the case was re-argued before the Lord was executed by R. Oakley in August Chancellor, by 1843, under which the plaintiffs became Mr. J. Parker and Mr. Burdon, for the entitled to the copyholds, but no surrender plaintiffs. - The plaintiffs claim under a was ever made of them.
purchase deed, which was executed for a In 1822 J. Gutteridge, the eldest son and good consideration, and the parties from heir of Mary, died intestate, leaving the whom they purchased were ancestors of the