The testator directed his trustees to offer all his real estate to his brother at the price of pounds 2,500, but if he should not, within one calendar month after the death, signify his desire to accept the real estate at that price, or should not, at the expiration of two months from the time of signifying his intention, pay the price, then the testator directed his trustees to sell the premises by public auction or private contract, and directed his trustees to stand possessed of the sale price upon trusts for the benefit of another brother and his sisters. The brother signified his intention within the relevant time to buy the property, but failed to pay the purchase price, when his solicitor was not provided with an abstract of title.
Sir William Page Wood V-C said that the right of pre-emption was a privilege, and the conditions were conditions with which the brother was obliged to comply strictly, and the case was analogous to a case between vendor and purchaser where time was of the essence. Having signified his intention to purchase the property, it became his duty to pay the purchase money, and he was not justified in waiting for an entire abstract of title. It was said that the position might have been different if there had been fraud or laches.
On appeal, Lord Cranworth LC agreed: ‘It is said, that although he did not pay within the time, he did what ought to be considered as equivalent to payment, or ought to exonerate him from any charge of neglect. Now, I have more than once had occasion to say that I think this Court has gone to too great an extent in departing from the precise terms of the contracts into which parties have entered, and so in effect making other contracts for them . . No authority has, however, been produced in which this court has varied the terms of a gift under which a benefit is to be taken. The rule there is (cujus est dare ejus est disponere (and if the donor choose to say that in the event of a person paying 2,500l. on or before a specified day the gift shall take effect, I do not see how the court, if the money is not paid on or before the day, can take anything as an equivalent for the payment at the prescribed time.’
Judges:
Lord Cranworth LC, Sir William Page Wood V-C
Citations:
(1857) 3 K and J 608, (1857) 2 De G and J 62, [1857] EngR 4 (B)
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Hayward v Jackson ChD 18-Feb-2003
The claimant had been given an option in the will to purchase land from the estate, but the price was not fixed before it expired. The executors asserted that the option had lapsed.
Held: In this case there was no explicit gift over in the . .
See Also – Brooke v Garrod 20-Jul-1857
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Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 15 July 2022; Ref: scu.179727