LONGLEY v. LONGLEY. [1871 L. 115.] Will-Construction-Devise and Bequest of Estate and Effects to Trustees, their A testator devised and bequeathed all his estate and effects to trustees, their heirs, executors, and administrators, upon trust to convert his personal estate, not being money, and to stand possessed of the money to arise by such sale, and of the rest and residue of his estate and effects upon trust to invest the same in Government or real securities, and to stand possessed of such investments upon trusts for the benefit of the widow and children and brothers and sisters of the testator: Held, that the real estate of the testator passed to the trustees, but that the beneficial interest therein was undisposed of by the will, and consequently resulted to the testator's heir. Dunnage v. White (1) followed. D'Almaine v. Moseley (2) considered. ARTHUR LONGLEY, by his will, dated the 17th of March, 1856, directed that all his just debts and funeral and testamentary expenses should be paid by his executrix and executors thereinafter appointed as soon as conveniently could be after his decease; and subject thereto he gave, devised, and bequeathed unto his brother Henry Longley, and Richard Hatchett, all his stock-in-trade, household furniture, plate, linen, china, books, moneys, moneys standing in his name in the funds, book debts, securities for money, policies of insurance, and all sums of money that might be received or recovered thereunder, and all other the estate and effects of which he should be possessed, entitled to, or interested in at the time of his decease, and of whatever nature or kind or wheresoever the same might be; to hold the same and every part thereof unto the said Henry Longley and Richard Hatchett, their heirs, executors, and administrators, according to the nature and quality thereof respectively, upon the trusts and for the ends, intents, and purposes thereinafter expressed and declared of and concerning the same; that was to say, that they, the said Henry Longley and Richard Hatchett, or the survivor of them, or the (2) 1 Drew, 629. (1) 1 Jac. & W. 583. M. R. 1871 Dec. 18, 19. M. R. 1871 V. LONGLEY. heirs, executors, or administrators of such survivor, or other the trustees or trustee for the time being of that his will, should, as LONGLEY conveniently might be after his decease (unless his wife, Emma Longley, should wish the same to be carried on as thereinafter mentioned), sell and dispose of his trade or business of a hosier and draper, then carried on by him in High Street, Southwark, and of the goodwill thereof, for the most money that could be got for the same, and get in his outstanding debts; and also convert into money all such of his personal estate as should not consist of money; and also make, execute, and perfect, all necessary and proper deeds, writings, and assurances for the purpose of vesting the same in any purchaser or purchasers thereof. And, after declaring that the receipt or receipts of the trustees or trustee for the time being of that his will should be good and valid acquittances to the said purchaser or purchasers for all the moneys expressed in such receipts to be received, and that no such purchaser or purchasers, after paying his, her, or their purchase-money to the said trustees or trustee, or to his or their order, should be answerable for the application, misapplication, or nonapplication thereof, or of any part thereof, he further directed that they, his said trustees, and the survivor of them, and the executors and administrators of such survivor, should stand possessed of and interested in the money to arise by such sale or sales, and also of and in the rest and residue of his estate and effects upon trust to lay out and invest the same in the purchase of Parliamentary stocks or funds of Great Britain, or upon real securities at interest, in the names of them, the said trustees, for the time being of that his will; and should alter, change, and vary the same as and when they should think fit; and should stand possessed of and interested in the said stocks, funds, and securities, upon the trusts and for the ends, intents, and purposes, and with, under, and subject to the provisoes, conditions, and declarations thereinafter declared concerning the same that was to say, upon trust to stand possessed thereof, and to receive the interest, dividends, and annual produce arising from such stocks, funds, and securities, and pay the same to his said wife, Emma Longley, during the term of her natural life, or until she married again, whichever should first happen, for her own sole and separate use and benefit; and from and immediately after the second marriage or decease of his said wife it was his will, and he did thereby direct and declare, that his said trustees or trustee for the time being of that his will should stand possessed of and interested in all and singular the said trust moneys, and the funds and securities upon which the same should be placed or invested upon trust for all and every his children living at the time of such second marriage or decease of his said wife, equally to be divided between them, share and share alike; and if there should be only one such child living at the time of his said wife's second marriage or decease, then he directed that the whole of such stocks, funds, and securities should be for the sole use and benefit of such one child; it was, however, his will and intention that such of his children as were sons should not attain a vested interest in such stocks, funds, and securities before they should respectively attain the age of twenty-one years; and that such of them as were daughters should attain such vested interest therein on attaining their respective ages of twenty-one or on marrying, whichever should first happen; and that until his said children should respectively attain such vested interests, that the said trustees or trustee for the time being of that his will should pay and apply the interest, dividends, and annual produce arising from such trust funds and securities for the maintenance, education, and support of such children; and if there should be only one child then living, the whole for such one child; and he further directed and declared that if, at the time of the second marriage or decease of his said wife, there should be no such child or children living, then he thereby declared that the whole of the trust moneys, funds, and securities should be divided equally between and amongst all his brothers and sisters as should then be living, to be held and enjoyed by them for their own sole and separate use and benefit absolutely: Provided, nevertheless, that if his said wife should be desirous that his said business should be carried on after his decease, then he directed that his said trustees or trustee for the time being should carry on and conduct the same as advantageously as possible for the benefit of his said wife and children, until the decease or second marriage of his said wife, or until the youngest of his children then living should attain the age of twenty-one years: and he further directed and declared M. R. 1871 LONGLEY v. LONGLEY. M. R. 1871 LONGLEY v. LONGLEY. that the clear profits arising from such business should be applied to and for the sole benefit of his said wife until her decease or second marriage, and afterwards for the benefit of such of his children as should be then living, and after the youngest child should have attained his or her majority (and after the decease or second marriage of his said wife), then he directed that the said business should be sold, and the produce arising from the sale thereof be held by the trustees for the time being of that his will, and applied to and for the benefit of such of his children as should be then living, or if all were dead, for his brothers and sisters then living in a similar manner, and upon the trusts therein before expressed with respect to the trust funds arising from the sale of his stock-in-trade, goodwill, and personal estate and effects, if the same were made immediately after his decease as aforesaid, or such of them as might be then capable of taking effect. And he appointed Emma Longley, Henry Longley, and Richard Hatchett, executrix and executors of his will. The testator died in January, 1871, leaving two sons, the Plaintiffs, him surviving. He was at the time of his death entitled both to freehold and copyhold estates; and this suit was instituted for the purpose of obtaining the opinion of the Court whether the testator had by his will effectually disposed of the beneficial interest in such real state. Mr. Southgate, Q.C., and Mr. B. B. Swan, for the Plaintiffs, who were respectively the heir-at-law and the customary heir of the testator: It might be contended on the authority of Doe v. Buckner (1) and Doe v. Hurrell (2) that the real estate did not pass by the will, but these cases have been questioned; and the construction for which we contend is, that the real estate passes, but that the beneficial interest is undisposed of, inasmuch as the trusts are exclusively applicable to personalty: Dunnage v. While (3); Coard v. Holderness (4). If that be so, there is a resulting trust in favour of the Plaintiffs. The strongest case against this construction is D'Almaine v. Moseley (1), where, under a gift of all the residue of a testator's estate and effects upon trust to collect, get in, and recover the same, and invest the same in stock, it was held that real estate passed. The Vice-Chancellor went mainly on the ground that the trusts of the will were as inapplicable to leaseholds as to realty; yet it could not be contended that leaseholds did not pass. It is submitted that this reasoning is unsatisfactory, and does not, at all events, apply to the present case; for here the two trustees are also executors, and the leaseholds would pass to them independently of any gift. Moreover, the testator expressly confines the trust for sale to his personal estate; then he directs the money to arise from the sale and all the residue of his estate and effects (under which words, if at all, the real estate must pass) to be invested in stock. Real estate can be so invested only by selling it; but how is it possible to imply a trust for sale of real estate when the express trust for that purpose is confined to personalty? Mr. Oswald, for trustees. Mr. Ramadge, for the brothers and sisters of the testator, relied mainly on D'Almaine v. Moseley and Fullerton v. Martin (2) as answering the argument for the Plaintiffs; and he cited Patterson v. Huddart (3) and Lloyd v. Lloyd (4) as shewing that the circumstance that the trusts were less applicable to realty than to personalty had not prevented the Court from holding that the beneficial interest in real estate was effectually disposed of. Mr. Southgate, in reply. Dec. 19. LORD ROMILLY, M.R.: I have carefully gone over this will, and I think that the testator's real estate passed by it. That is shewn by the use of the word "devise" in the gift and the word "heirs" in the limitation to the trustees. But I think the trusts are rigidly and (3) 17 Beav. 210. (4) Law Rep. Eq. 455. (1) 1 Drew. 629. (2) 22 L. J. (Ch.) 893; 17 Jur. 778. |