Page images
PDF
EPUB

1832. trustees, in trust for his wife during her life, or widow

hood, or until she should cease to reside, &c.; remainder Doe dem. HEARLE to the uses declared of his residue: his freehold estates,

called Treravel, to trustees and their heirs, in trust to HICKS.

raise an annuity of 201. per annum, and to pay the of every kind same to the separate use of his niece Frances Mountand descrip- stevens ; in trust to dispose of the residue of the rents tion whatsoever and to the separate use of his daughter Anne Maria Hearle wheresoever for life: and in case his piece should die in the lifetime

of his daughter, then in trust to pay the whole to his for life, re- said daughter: after the decease of his said daughter,

18 but subject to the said annuity of 201. to his niece, to the grandson and his heirs in children of his daughter as tenants in common in tail ; strict entail, but in default of issue, then upon the trusts declared the rents to

as to his residue; and all the residue to trustees and accumulate for his benefit their heirs, to the use, intent, and purpose that his wife till he was

might take thereout one clear yearly rent charge of twenty-one; and on failure 300l. per annum, with power of distress, &c.; and subof issue, as by ject to the rent charge, to the use of his son Willium for his will direct. 1:6.. ramainder to trust

di life; remainder to trustees, to support contingent reand confirmed mainders; remainder to the first and other sons of the

e several said son in tail male; on failure of issue, to the intent annuities and donations by that his wife might take a further annuity of 1001. during his will and her life or widowhood; with a term for ninety-nine years

s in two of the trustees, to raise an annuity for his daughbequeathed; and gave and ter, Anne Maria Hearle, for her separate use; rebequeathed to mainder to the use of testator's grandson, John Graves, his wife a further an for life; remainder in strict settlement to his first and nuity, with other sons, &c.; remainder to the first and other sons the like restrictions as

of his daughter, Anne Maria Hearle; with a proviso, the former that if any son of his daughter should be born in the lifewere payable ; time of testator, he should take a life estate only with in all other respects con- remainder to his first and other sons in tail male; firming his will and codicils. Held, that the devise to testator's wife of the copyhold premises called P. was not revoked by the fourth codicil. To revoke a clear devise, the intention to revoke must be as clear as the devise,

powers

1832.

DOE dem.
HEARLE

Hicks

powers of charging and leasing, except the Plomer Hill House, &c. remainder to testator's own right heirs : all money in the funds, &c. to his trustees, to pay the interest and dividends to his wife during her life or widowhood, with power to her to appoint 5001. for the benefit of his said son and daughter: all his ready money, &c. which might happen to be in his mansion called Plomer Hill House, and the wines and stock, &c. on his said copyhold premises, to his wife for her own absolute use and benefit: all the furniture, &c. to his wife during such time as she should be entitled to his copyhold mansion : remainder, &c., as to all the rest and residue of his personal estate, to his said son for his own absolute use and benefit; with a charge upon his funded property, and if insufficient, upon his residue for payment of debts. The testator declared that the annuities to his wife were to be in addition to those settled on her at her marriage. He then appointed the trustees his executors. By a codicil, dated the 10th of May 1822, the testator, referring to his will, and reciting the death of his son Horatio, devised Treravel, after the death of his daughter, to her husband, Francis Hearle, for life; with remainder to the same uses as in the will; charged all his residuary real estate with a further annuity of 1001. to his, testator's, wife during her life or widowhood, over and above, and in addition to, the several annuities or yearly rent charges of 3001.and 1001. by his will charged thereon, or limited thereout to or in favour of his wife, as therein mentioned, and which he did thereby ratify and confirm, and all other provisions made for her by his will and codicil; he also charged the residuary estate with a further annuity of 2001. to his daughter, and of 1001. to her husband; he likewise, after reciting the bequest of his personal property at Plomer's Hill to his wife for life, revoked that bequest, giving the same to his wife absolutely; and gave the residue of his personal property, be

queathed

1832.

DOE dem.
HEARLE

HICKS.

queathed by his will to his son, to his wife absolutely; he also made a provision for his great nephew William Mountstevens, and ratified his will in all respects, save and except as altered by that codicil. On the 15th of July 1822, by another codicil, he appointed his wife sole executrix and residuary legatee of his personal estate; and on the 18th of July 1822, by a further codicil, directed that the proceeds of five shares, which he held in the County Fire Office, should be enjoyed by his wife for life; after her death, by his daughter and her husband for life ; and after their decease, by his heir in possession. By his fourth codicil, of 14th September 1822, “revoking and making void several of the dispositions theretofore made by him in his will and codicils, of all his freehold, copyhold, and personal estate and effects of all and every kind and description, instead and in the place of such devise, disposition, and bequest thereof, he gave, devised, and bequeathed all and every his freehold, copyhold, and personal estate and effects of every kind and description whatsoever, and wheresoever situated, unto his daughter for life; remainder to his grandson, John Grades, and his heirs, in strict entail, the rents to accumulate for the benefit of J. G. in case he should not be twenty-one on the death of testator's daughter, and on failure of issue, that his estate should go and descend as by his will he had directed; he thereby ratified and confirmed the several annuities and donations by him in his will and former codicils bequeathed; and gave and bequeathed to his dear wife a further annuity of 1001., to be paid with the like restrictions as the former ones given her by his will and codicils; thereby in all other respects, but what were above mentioned, confirming his will and codicils.” And by a fifth codicil, dated 13th of July 1823, he declared the property bequeathed to his daughter to be to her separate use; granted an annuity to her husband; gave and confirmed to his dear

1832.

Doe dem.
HEARLE

Hicks.

wife, and at her disposal, any sum of money she might be entitled to from the effects of her late father, or any other friend should leave her; and ordered his executors, in case she should die before him, to fulfil her will and disposal thereof.

The will and codicils were duly executed to pass real estates; and the testator died in June 1825, seised of the estates therein mentioned, leaving his wife, the defendant, and A. M. Hearle, him surviving.

Judgment was given for the Plaintiff in the Court of Exchequer, by Alexander C. B., in Hilary term, 1827, which was reversed on error, in the Court of Exchequer Chamber, in Trinity term, 1827. (a) And upon error to the House of Lords, Tindal C. J. now delivered the opinion of the Judges as follows:

Tindal C. J. My Lords, the question which your Lordships have been pleased to propose to his Majesty's Judges is this; whether, according to the true construction of the will and codicils which have been stated upon this appeal, the devise in the will of the testator's copyhold messuage or inansion-house, barns, stables, buildings, and pleasure-grounds, lands and hereditaments, called the Plomer Hill estate, was revoked by the fourth codicil. And upon this question, though it must be admitted to be difficult to draw any very certain conclusion as to the intention of the testator, the opinion which we have formed, upon the best consideration of these instruments is, that the devise in the will above specified, was not revoked by the fourth codicil.

The general principle upon which this opinion proceeds may be stated thus: The testator does by his will shew a clear and manifest intention to devise the Plomer Hill estate to his wife for life, or during her widowhood.

(a) For the argument see 1 Young & Jer. 472.

1832.

Doe dem.
HEARLE

HICKS.

If such devise in the will is clear, it is incumbent on those who contend it is not to take effect by reason of a revocation in the codicil, to shew that the intention to revoke is equally clear and free from doubt, as the original intention to devise. For if there is only a reasonable doubt whether the clause of revocation was intended to include the particular devise, then such devise ought undoubtedly to stand.

My Lords, it is the opinion of my learned Brothers and myself, that the clause of revocation contained in the fourth codicil, does not apply to the devise in question with such clearness and certainty as to operate as a revocation of that plain and explicit devise contained in the will.

In this general conclusion we all agree; but it is scarcely to be expected, that in the discussion of a question of this nature, we should all arrive at the same conclusion upon grounds precisely the same. In stating, therefore, to your Lordships those grounds upon which I have formed the opinion, not simply that there is no clear intention to revoke the devise, but that, upon the clear construction of the codicil, the clause of revocation does not apply to this particular devise, I cannot undertake to say I am expressing the opinion of all my learned Brothers in each particular reason which I may advance, although in most of those reasons all concur, and I am not aware that there is any material dissent or diversity of opinion in respect to any.

That the testator not only intended to devise to his wife the enjoyment of the house and premises in which he lived during her life or widowhood, but that it was a paramount object with him, appears abundantly by the first will and codicil. It forms the first subject of devise in his will. - In the first place, I give and devise all that my copyhold messuage or mansion-house, barns,

stables,

« PreviousContinue »