Page images
PDF
EPUB

1812.

SMITH

against KING.

The testatrix died without issue in May 1752, and without revoking this will. Arabella Dennison, late Isaacson, one of the devisees in fee in the will mentioned, is one of the lessors of the plaintiff, and the other lessors of the plaintiff derive title by descent, on conveyance from M. Altham, the other devisee in fee in the will mentioned; and the lessors of the plaintiff (if entitled to recover at all) are entitled to recover, as tenants in common, in the proportion stated in the declaration. Upon the death of the testatrix, Anthony Isaacson, her elder brother, by the consent of R. Altham, became the receiver of the rents and profits for the purposes of the will; and from that time down to the year 1810, the several persons successively entitled under the will to the surplus rents and profits, have been in the receipt of the rents and profits of the estate. Previously to the year 1798, J. M. Durnford, the mother of one of the defendants, H. King, the mother of the other defendant, and S. Isaacson (which J. M. Durnford, H. King, and S. Isaacson were the three surviving children of Ant. Isaacson, all of whom were living at the death of the testatrix,) were in the receipt of the rents and profits. After the death of J. M. Durnford in 1798, H. King and S. Isaacson received the rents and profits during their joint lives; and after the death of H. King, S. Isaacson was in the receipt of the rents and profits during the remainder of her life. S. Isaacson having survived all the persons to whom annuities or life-interests were given under the will, died in July 1810. The question was, Whether the plaintiff was entitled to recover? If the Court should be of that opinion the verdict to stand, if otherwise to be entered for the defendants.

Coltman

Coltman for the lessors of the plaintiff stated the question to be, Whether the devise to M. Altham and Arabella Isaacson, and their heirs and assigns for ever, was a devise to their own use after the payments and other devises contained in the will were satisfied; or a devise to them only in trust, with a resulting use to the heirs of the testatrix, executed by the statute of uses? He contended for the former, and read the will as being in substance a devise of the real estate to Anthony Isaacson for life, and after several intermediate contingent remainders for life, with an ultimate remainder in fee to M. Altham and Arabella Isaacson. The singularity of the devise consists in this, that the testatrix has reversed the usual order of disposition by devising away the fee in the first instance, and afterwards carving out the life estates; but such a disposition must be understood according to the substance and not the form of the devise. It is submitted, therefore, in the first place, that M. Altham and Arabella Isaacson cannot be considered as trustees at all; and, 2dly, supposing they are to be considered as taking the legal estate at first as trustees, still they ultimately take for their own benefit, without any resulting use for the heir. 1st, They are not named as trustees; and in Hill v. The Bishop of London (a) Lord Hardwicke relied upon the word trust not being used, and said if it were a trust, it must be by construction, and then the intent of the testator must be chiefly considered as a guide to that construction. Now here, there is not any intent shewn to create a trust; on the contrary, there are several reasons against it; as, 1st, the estate being given subject to and chargeable with the annuities, which are afterwards expressly charged on the land, they are, therefore, more

[blocks in formation]

1812.

SMITH

against

KING.

1812:

SMITH against KING.

properly rents than annuities. Thus a devise upon con
dition that he pay yearly so much to A., will be a rent to
him, and not a sum in gross (a). Then there is nothing in
the will which refers to the personal interference of trus-
tees;
the annuities are to be paid, but not by the trustees.
Again, both the devisees were women, and one of them
unmarried; which rendered her still more objectionable
as a trustee, than the other, from the uncertainty with
whom she might marry. If it should be said that the
Court must construe this a trust in the devisees, in order
to protect the interests of Sarah Isaacson, who was a
married woman; it may be answered, that there is no
such necessity, because, according to the case of Bennet
v. Davis (b), a court of equity would make the husband
a trustee for the wife. But, 2dly, supposing that they
are to be considered as trustees for specific purposes,
still they will take the remainder for their own be-
nefit, and not as trustees for the heir at law. In
Walton v. Walton (c), the Master of the Rolls said,
"It is not universally true that the expression of a pur-
pose, for which a devise of land is made, confines and
limits the devise to the purpose so expressed. It is de-
cided in several cases noticed in Hill v. The Bishop of
London, and Rogers v. Rogers (d), that where there is a
devise of land for payment of debts, it does not neces-
sarily follow, that there is a trust for the heir after the
debts are paid. Lord Hardwicke says, that no general
rule can be laid down; but every case must depend on the
circumstances." Now this devise shews an intent that
there should be no trust for the heir; for there could be
no reason for making women trustees, except giving

(a) 1 Leon. 137. Com. Dig. Rent. B. 2.
(c) 14 Ves. 322.

(b) 2 P. Wms. 316.

(d) 3 P. Wms. 193.

them

them a beneficial interest in the remainder. The circumstance also of their being the testatrix's cousins is confirmatory of the same intent, and it was relied upon in Coningham v. Mellish (a), Hobart v. The Countess of Suffolk (b), Rogers v. Rogers (c). Again, Anth. Isaacson the heir at law, for whose benefit it is said that there is an implied trust, already takes under an express devise to him for life; North v. Crompton (d), and Rogers v. Rogers. If it should be said that here particular legacies being given to the devisees out of the personal estate, it shall exclude them from this remainder; as a particular legacy does exclude an executor from the surplus; it may be answered, that the reason of such a construction in the one case, (viz. that it is inconsistent with an intention of giving the whole, to give a part,) shews that it does not apply to the other; because there is no such inconsistency where the devise is of the real estate. Besides, here the legacies given to the devisees are unequal; and that has been relied on even in the case of executors, as not rebutting the presumption that they were intended to take the surplus. As little can it be contended that there has been an adverse possession of 20 years against the devisees; for if they are trustees, the possession of the cestui que trusts with the consent of the trustees can never be said to be adverse; Earl Pomfret v. Lord Windsor (e), and Keene v. Deardon (f): and if they take simply as devisees in remainder, their title did not accrue until 1810.

Holroyd, contrà, insisted that this was not a beneficial remainder to the devisees, but that they took only as

(a) Prec. in Ch. 31. (c) 3 P. Wms. 193. (e) 2 Ves. 472.

(b) 2 Vern. 64. Ca. temp. Talb. 269.

(d) 1 Ch. Cas. 196. (f) 8 East, 248. 3d resolution.

trustees.

1812.

SMITH

against KING.

1812.

SMITH against KING.

trustees. It is not necessary that the words use or trust should be mentioned in a will in order to raise that kind of estate; but where it appears to be the intention to give an estate to one for the benefit of another, that will be sufficient to raise an use or trust. Now here, the real estate being devised to them and their heirs, subject to the payment of annuities, it may be admitted that they would take a beneficial remainder, if this devise stood alone; but the testatrix disposes also of her personal estate in the same way, viz. to her executors, subject to legacies; and yet it is clear that she did not intend them to take a beneficial interest in the residue; because she afterwards gives them 2007. each; and it is not disputed that if equal legacies are given to executors, it rebuts the presumption that they are to take the surplus. Then coupling these two devises together, and expounding the one by the other, it seems to have been the intention, that the surplus, if real, should result to the heir at law, and to the next of kin, if personal. The whole beneficial interest is expressly given away from the trustees for two generations. What is that but separating the legal from the beneficial interest? The estate is also given to them as joint tenants, which is the usual mode of devising a trust estate, but not such as is intended for the benefit of the devisees themselves. Before the statute of uses they would have been seised of the legal estate in trust for the lives of the several devisees for life; and there being no devise of the residue, there would have been a resulting trust for the heir at law. But since the statute, the legal estate was executed in the tenant for life; for the lands are not given in trust to receive and pay over the annuities, but only subject to the annuities; and the annuitants either had rent-charges, or, as one of them was a married

,woman,

« PreviousContinue »