Category: Wills and Probate

In re Furness: 1901

A legacy may be adeemed as a portion ‘when a parent by will gives a legacy to a child . .’ It is not enough to deny ademption to show only that the limitations of the portion under the will are different from those in the later inter vivos gift.
References: [1901] 2 Ch 346
Jurisdiction: England and Wales
This case is cited by:

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194482

Re Ashton: CA 1898

(Reversed)
References: [1898] 1 Ch 142
Jurisdiction: England and Wales
This case cites:

  • Appeal from – Re Ashton ChD 1897
    Stirling J said: ‘Prima facie the duty of making a provision for a child falls on the father, but may fall on or be assumed by some other person. I do not say that in no case and under no circumstances can the duty fall on or be assumed by the . .
    ([1897] 2 Ch 574)

This case is cited by:

  • Appealed to – Re Ashton ChD 1897
    Stirling J said: ‘Prima facie the duty of making a provision for a child falls on the father, but may fall on or be assumed by some other person. I do not say that in no case and under no circumstances can the duty fall on or be assumed by the . .
    ([1897] 2 Ch 574)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194478

In re R (Enduring Powers of Attorney): ChD 1990

The claimant had worked for the deceased for many years. The deceased gave her nephew an enduring power of attorney which was in due course registered. The nephew dismissed the claimant. The claimant said he had worked for many years at a very low rate of pay on promises from the deceased that he would be rewarded in her will, and sought provision from the estate.
Held: There was no power for the court to give a direction to sastisfy a moral rather than a strictly legal duty. The claim failed.
References: [1990] 1 Ch 647, [1990] 2 WLR 1219
Judges: Vinelott J
Statutes: Enduring Powers of Attorney Act 1985 8(2)(b)(i)
Jurisdiction: England and Wales
This case is cited by:

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194467

Re Ware: 1926

No presumption as to any double portion arose in the case of dispositions made in favour of a child by a mother unless she had placed herself in loco parentis to them. In this case there was no evidence of such.
References: [1926] KIN 163
Jurisdiction: England and Wales
This case cites:

  • Cited – Re Ashton ChD 1897
    Stirling J said: ‘Prima facie the duty of making a provision for a child falls on the father, but may fall on or be assumed by some other person. I do not say that in no case and under no circumstances can the duty fall on or be assumed by the . .
    ([1897] 2 Ch 574)

This case is cited by:

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194480

Lord Chichester v Coventry: HL 1867

Though the doctrines of ademption and of satisfaction of gifts are related, it is more difficult to establish satisfaction. Slight differences between the two gifts might be overlooked, but where there is real difference between the two gifts by way of portion the question whether the donor might reasonably have supposed the two gifts, despite the differences between them, to be, very broadly, the same. Where the two provisions are of a different nature that itself can afford some intrinsic evidence that both portions were intended to be given and that therefore there should be no ademption. ‘In cases of satisfaction the person intended to be benefited by the covenant . . and the persons intended to be benefited by the bequest or devise . . must be the same. In cases of ademption they may be, and frequently are, different’ and ‘the law very properly and in accordance with the ordinary usage of mankind, considers that on the marriage of a child the settlement for that child and the children of the marriage is a settlement for the benefit of the child of the settlor. The consequence is, that, in all cases of ademption, a bequest of a sum of money to a child absolutely, is adeemed by the settlement of that or a larger amount on the marriage of that child; if a smaller amount it is an ademption pro tanto’.
References: (1867) Ex I App 71
Judges: Lord Romilly
Jurisdiction: England and Wales
This case is cited by:

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194486

Sutton v Drax: 1815

References: (1815) 2 Phill 323
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Worby, Worby and Worby v Rosser CA 28-May-1999 (Times 09-Jun-99, Gazette 16-Jun-99, , [1999] EWCA Civ 1520, [2000] PNLR 140)
    Three potential beneficiaries sought payment from a solicitor of the costs of resisting the grant of probate to a will, saying that he had owed them a duty of care to ensure that the testator did not execute a later will in circumstances in which he . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.195581

Brook v Smith: 26 Nov 1830

The testator devised his estate to two tenants in common in fee ; one died after the testator, leaving an infant heir. In a creditor’s suit after a decree for sale of the estate, the infant heir was ordered to join in the conveyance to the purchaser
References: [1830] EngR 862, (1830) 2 Russ and My 73, (1830) 39 ER 322
Links: Commonlii
Jurisdiction: England and Wales

Last Update: 22 September 2020; Ref: scu.321742

Wilkinson v Corfield: PD 26 Jan 1881

A legatee who has propounded a codicil and succeeded is entitled to the same costs as an executor under similar circumstances.
The defendant, the executor of the will of RC, had proved the will only.
The plaintiffs propounded a codicil. The Court having pronounced for the codicil, condemned the defendant in costs, and gave the plaintiffs also out of the estate such sum nomine expensarum as would cover the additional expenses.
References: (1881) 6 PD 27, [1881] UKLawRpPro 5, (1880-1881) LR 6 PD 27
Links: Commonlii
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Worby, Worby and Worby v Rosser CA 28-May-1999 (Times 09-Jun-99, Gazette 16-Jun-99, , [1999] EWCA Civ 1520, [2000] PNLR 140)
    Three potential beneficiaries sought payment from a solicitor of the costs of resisting the grant of probate to a will, saying that he had owed them a duty of care to ensure that the testator did not execute a later will in circumstances in which he . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.195582

O’Learly v Douglass: 1878

References: (1878) 1 LR IR 45
Coram: Warren J
Ratio: The testator had executed two wills, identical in all respects save only for the dates and the attesting witnesses.
Held: Warren J said: ‘On these facts it would seem immaterial whether one or both papers should be admitted to probate.’ However there were certain charitable donations contained in the wills which, under the law at the time, would have failed if dependant on the second will but would have been valid if effected by the earlier will. After referring to Birks, he said the Court may draw what light it can from such evidence.’ The function of the Court was ‘to admit to probate all testamentary papers which a testator has duly executed and which he has not revoked’.
Jurisdiction: England and Wales
This case cites:

  • Cited – Birks v Birks ([1865] EngR 362 (B), Commonlii, (1865) 4 Sw and Tr 23)
    Probate was applied for for two testamentary papers. Mistake. Admissibility of Parol Evidence.-Testamentary Papers not inconsistent with each other. The First not revoked by the Last.—A testator, having erased a clause in his Will after the . .

(This list may be incomplete)
This case is cited by:

  • Cited – Lamothe v Lamothe and Others ChD (Bailii, [2006] EWHC 1387 (Ch))
    The deceased had made a will in England but later made a will in Dominica revoking all other wills. After the first death, probate of the first will was taken out in ignorance of the second. The claimant, still in ignorance of the second will, took . .

(This list may be incomplete)

Last Update: 07 April 2020
Ref: 375066

Re Cutliffe’s Estate: CA 1959

References: [1959] P 6
Coram: Morris LJ, Hodson LJ
Ratio: In attacking the will, the unsuccessful defendants had pleaded undue influence as well as lack of due execution and want of knowledge and approval, but their evidence had been disbelieved. They complained that in awarding costs against them the court had not applied Spiers v English.
Held: The testator himself had not been responsible for the litigation. Morris LJ said: ‘Costs are always in the discretion of the court; but, without restricting or in any way making rigid the exercise of that discretion, the courts have given general guidance which will enable those embarking on litigation to know how, in particular cases, the discretion is likely to be exercised.’
This case cites:

  • Cited – Spiers v English ([1907] P 122)
    The two main principles which should guide the court in determining that costs in an appropriate suit are not to follow the event are firstly where the testator or those interested in the residue had been the cause of the litigation and secondly, if . .
  • Cited – Mitchell v Gard ((1863) 3 Sw and Tr 275)
    The next of kin of the deceased, who had unsuccessfully opposed the will in a testamentary suit tried before Byles J and a jury, applied for their costs to be paid out of the estate.
    Held: Sir James Wilde said: ‘The basis of all rule on this . .

(This list may be incomplete)
This case is cited by:

  • Cited – Francis Hoff and others v Mary Atherton ChD ([2004] EWHC 2007 (Ch))
    A challenge to testamentary capacity falls within the second exception in Spiers v English and not the first. . .
  • Cited – Kostic v Chaplin and others ChD (Bailii, [2007] EWHC 2909 (Ch), Times 11-Jan-08)
    The claimant had brought contentious probate proceedings, and succeeded in establishing that the deceased had not had capacity to make the will. The defendant beneficiaries appealed an order for costs.
    Held: The costs of the trial itself . .

(This list may be incomplete)

Last Update: 18 March 2019
Ref: 263527

Re Oldham: 1925

References: [1925] Ch 75
Coram: Astbury J
Ratio: The court was asked whether an agreement for mutual wills should be inferred.
This case cites:

  • Cited – Dufour v Pereira ((1769) 1 Dick 419, (1769) 2 Harg Jurid Arg 304, Commonlii, [1769] EngR 63, (1769) Dick 419, (1769) 21 ER 332)
    The court was asked as to the validity and effect of a single joint will.
    Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .

(This list may be incomplete)
This case is cited by:

  • Cited – Walters v Olins CA (Bailii, [2008] EWCA Civ 782, [2009] Ch 212, [2009] 2 WLR 1, [2008] WTLR 1449)
    The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
    Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .
  • Cited – Birmingham v Renfrew ((1937) 57 CLR 666, Austlii, [1937] HCA 52)
    (High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as . .

(This list may be incomplete)

Last Update: 24 February 2017
Ref: 270587

Marley v Mutual Security Merchant Bank: PC 1991

References: [1991] 3 All ER 198
Ratio: BANKING – EQUITY, TRUSTS, PROBATE ADMINISTRATOR’S POWERS OF INVESTMENT Bank as sole administrator cannot invest estate funds in its own deposits in the absence of express sanction in the trust instrument.
This case is cited by:

(This list may be incomplete)

Last Update: 18 February 2017
Ref: 183444

Takamore v Clarke and others; 18 Dec 2012

References: SC 131/2011, [2012] NZSC 116, [2013] 2 NZLR 733
Links: Nzlii
Coram: Elias CJ, Tipping, McGrath, William Young and Blanchard JJ
Ratio: Supreme Court of New Zealand – The deceased was Tuhoe, but had spent the last twenty years of his life in Christchurch with his partner, whom he named his executor in his will. After his death his Tuhoe whanau moved his body to the Bay of Plenty and buried it in a family urupa. His partner successfully sued for orders allowing her to enter the urupa to disinter the body and re-inter it in Canterbury. The Tuhoe whanau was unsuccessful in all courts.
Held: (a) There is a common law rule under which personal representatives have both the right and duty of disposal of the body of a deceased. (b) Where no executor has been appointed, is available or willing to act, the person who is the potential administrator in the sense of having priority to claim administration has the right to decide. (c) The rule becomes operative where there is no agreement or acquiescence on what is to be done, where arrangements have broken down, or where nothing is happening. The personal representative has the common law duty to attend to disposal and right to possession for that purpose. (d) Providing a rule for a decision-maker is practical and convenient, when differences arise as to the manner and disposal of the body. It assists in speedy resolution of differences. (e) The rule had been built on experience with regard to perceived social necessities and changing public policies. Personal representatives are required to take into account different cultural, religious, spiritual practices as well as the views of immediate and wider family. The views of those close to the deceased may arise from customary, cultural and religious practices, which they consider should be observed. There is no requirement to engage in consultation, which may be impractical. The representatives may have regard to the practicalities of burial or cremation without undue delay. They may also follow their personal views, provided they have considered all relevant factors and viewpoints. (f) This approach allows a range of values to be weighed without presuming in advance which cultural position will prevail, while also ensuring that decision-making will be prompt for reasons of public health and decency. (g) The power of the personal representative to ensure proper disposal continues after burial. (h) A person aggrieved at a decision of the personal representative or the failure of the representative to resolve matters may challenge it in the High Court, but any review process must be straightforward to provide a prompt decision. (i) The common law position was not displaced by whanau invoking tikanga as to burial.
However values and cultural precepts important to New Zealand society must be weighed in the common law method used by the Court in exercising its inherent jurisdiction according to the materiality in the particular case
This case cites:

  • Cited – In re JSB; Chief Executive, Ministry of Social Development v S and B (Nzlii, [2010] 2 NZLR 236, [2009] NZHC 2054)
    (New Zealand High Court) The child was alive but severely brain damaged, having been injured by his mother. There was a dispute between his grandparents, who were caring for him, and his birth parents as to the funeral arrangements if he were to . .

(This list may be incomplete)
This case is cited by:

  • Cited – RE JS (Disposal of Body) FD (Bailii, [2016] EWHC 2859 (Fam), Judiciary)
    JS, a child of 14, anticpating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents . .

(This list may be incomplete)
Jurisdiction: New Zealand

Last Update: 19-Nov-16
Ref: 571417

Birmingham v Renfrew; 11 Jun 1937

References: (1937) 57 CLR 666, [1937] HCA 52
Links: Austlii
Coram: Dixon J, Latham CJ
Ratio: (High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as ‘a trust which is declared by the law to affect the conscience of [the survivor’s] executor and of the volunteers who are devisees or legatees under his will.’
Dixon J set down the principles for mutual wills: ‘It has long been established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked so that the other takes property under its dispositions. It operates to impose upon the survivor an obligation regarded as specifically enforceable. It is true that he cannot be compelled to make and leave unrevoked a testamentary document and if he dies leaving a last will containing provisions inconsistent with his agreement it is nevertheless valid as a testamentary act. But the doctrines of equity attach the obligation to the property. The effect is, I think, that the survivor becomes a constructive trustee and the terms of the trust are those of the will he undertook would be his last will . . The purpose of an arrangement for corresponding wills must often be, as in this case, to enable the survivor during his life to deal as absolute owner with the property passing under the will of the party first dying. That is to say, the object of the transaction is to put the survivor in a position to enjoy for his own benefit the full ownership so that, for instance, he may convert it and expend the proceeds if he choose. But when he dies he is to bequeath what is left in the manner agreed upon. It is only by the special doctrines of equity that such a floating obligation, suspended, so to speak, during the lifetime of the survivor can descend upon the assets at his death and crystallize into a trust. No doubt gifts and settlements, inter vivos, if calculated to defeat the intention of the compact, could not be made by the survivor and his right of disposition, inter vivos, is, therefore, not unqualified. But, substantially, the purpose of the arrangement will often be to allow full enjoyment for the survivor’s own benefit and advantage upon condition that at his death the residue shall pass as arranged.’
This case cites:

  • Cited – Dufour v Pereira ((1769) 1 Dick 419, (1769) 2 Harg Jurid Arg 304, Commonlii, [1769] EngR 63, (1769) Dick 419, (1769) 21 ER 332)
    The court was asked as to the validity and effect of a single joint will.
    Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .
  • Cited – Re Oldham ([1925] Ch 75)
    The court was asked whether an agreement for mutual wills should be inferred. . .

(This list may be incomplete)
This case is cited by:

  • Cited – Goodchild and Another v Goodchild CA (Times 12-May-97, Bailii, [1997] EWCA Civ 1611, [1997] 3 All ER 63, [1997] 1 WLR 1216)
    The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
  • Cited – In re Cleaver dec’d, Cleaver v Insley ChD ([1981] 1 WLR 939, [1981] 2 All ER 1018)
    Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust.
    Nourse J said: ‘The principle of all these cases is that a court of . .
  • Cited – Goodchild v Goodchild ChD (Times 22-Dec-95, Ind Summary 08-Jan-96, [1996] 1 WLR 694)
    The husband and wife had made mirror wills. They divorced, and the husband made a new will. After his death, the child and the third wife of the deceased made a claim against the second wife.
    Held: The wills were in identical terms, but . .
  • Cited – The Thomas and Agnes Carvel Foundation v Carvel and Another ChD (Bailii, [2007] EWHC 1314 (Ch), [2007] 4 All ER 81)
    The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
  • Cited – Walters v Olins CA (Bailii, [2008] EWCA Civ 782, [2009] Ch 212, [2009] 2 WLR 1, [2008] WTLR 1449)
    The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
    Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .
  • Cited – Healey v Brown ChD ([2002] 19 EG 147, Bailii, [2002] EWHC Ch 1405)
    The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
    Held: . .

(This list may be incomplete)

Last Update: 28-Aug-16
Ref: 183791

Burrows v Walls; 10 Mar 1855

References: [1855] EngR 294, (1855) 5 De G M & G 233, (1855) 43 ER 859
Links: Commonlii
Ratio: A testator, by his will, gave the residue of his property to three trustees, whom he appointed executors, upon trust to sell and invest the same and to pay the income thereof to his widow for life, and after her decease, to his children, who were still infants at the time of his death. The eldest child attained twenty one in the year 1839, and the youngest in 1846. The three executors proved the will, but one of them almost exclusively acted. The money which was the proceeds of the estate was suffered by two of the executors to remain in the hands of the third, who ultimately became insolvent. On the youngest child attaining twenty one on behalf of himself and his brothers and sisters, attempted to obtain payment from the acting executor, and in 1848 wrote to him a letter consenting to receive payment of the amount then admitted to be due by annual instalments. In 1849, and shortly before the insolvency of the acting trustee, a bill was filed by all the children against the three trustees for the purpose of making them each responsible. Held, that inasmuch as it was the duty of the three trustees to have explained to their cestuis que trust what their rights were, and as they had not done so, there was nothing in the conduct of the children to deprive them of their remedy against the three trustees, who were accordingly declarecl to be, jointly arid severally liable to make good the deficiency,
This case is cited by:

(This list may be incomplete)

Last Update: 02-Aug-16
Ref: 292216

Saunders v Vautier; 5 Jun 1841

References: , [1841] EngR 765, (1841) Cr & Ph 240, (1841) 41 ER 482
Links: Commonlii
Ratio:
This case cites:

  • See Also – Saunders -v- Vautier ((1841) 4 Beav 115 affd Cr & Ph 240, Bailii, [1841] EWHC Ch J27, Bailii, [1841] EWHC Ch J82, (1841) Cr & Ph 240, Commonlii, [1841] EngR 629, (1841) 4 Beav 115, (1841) 49 ER 282)
    A direction in a will stated that the income from certain shares was to be accumulated and invested until the beneficiary attained the age of 25. On attaining his majority at 21 years, the beneficiary sought termination of the trust, and transfer of . .

(This list may be incomplete)

Last Update: 09-Jul-16
Ref: 308943

Saunders v Vautier; 7 May 1841

References: (1841) 4 Beav 115 affd Cr & Ph 240, [1841] EWHC Ch J27, [1841] EWHC Ch J82, (1841) Cr & Ph 240, [1841] EngR 629, (1841) 4 Beav 115, (1841) 49 ER 282
Links: Bailii, Bailii, Commonlii
Coram: Lord Cottenham
Ratio:A direction in a will stated that the income from certain shares was to be accumulated and invested until the beneficiary attained the age of 25. On attaining his majority at 21 years, the beneficiary sought termination of the trust, and transfer of the legal title in the property to him.
Held: The beneficiary was entitled to call for the property. The intention of the testator was that the beneficiary would ultimately take the property, but had merely sought to postpone the date on which this would happen. Beneficiaries who are sui juris and together entitled to the whole beneficial interest can put an end to the trust and direct the trustees to hand over the trust property as they may direct: ‘once something has been given to a person the court will not enforce any attempt to keep it out of his grasp until a later date.’
This case is cited by:

  • Cited – Tod -v- Judith Cobb Lady Barton, William Godfrey Lukes Barton, The Royal Society of Chemistry, In re Barton (Deceased) ChD (Bailii, [2002] EWHC 264 (Ch))
    The deceased was an English scientist who died domiciled in Texas. His beneficiaries in England executed a deed of variation, but this would not be recognised in the law of Texas. The will expressly stated it was subject to the laws of England. . .
  • Cited – Goulding and Goulding -v- James and Daniel CA (Times 07-Feb-97, Bailii, [1996] EWCA Civ 1156)
    The family sought approval of a proposed variation of the will to make best advantage of tax allowances. Because the beneficial interests of children would be affected, the court’s approval was necessary. The judge had refused to approve the . .
  • Cited – Hunt and Another -v- McLaren and others ChD (Bailii, [2006] EWHC 2386 (Ch))
    Land had been given to a football club under a trust for its exclusive use as such. That land was sold and a new ground acquired and a stadium built, but the land was subject to restrictive covenenats limiting its use to sports, which considerably . .
  • Cited – Barbados Trust Company Ltd -v- Bank of Zambia and Another CA (Bailii, [2007] EWCA Civ 148)
    The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
  • Cited – Nelson -v- Greening & Sykes (Builders) Ltd CA (Bailii, [2007] EWCA Civ 1358, Times 22-Jan-08)
    The builders had obtained a charging order for the costs awarded to them in extensive litigation, and a third party costs order but without the third party having opportunity to test the bill delivered. They had agreed to sell land to the defendant, . .
  • Cited – Clarence House Ltd -v- National Westminster Bank Plc ChD (Bailii, [2009] EWHC 77 (Ch))
    The claimant landlord alleged that the defendant tenant had transferred the lease under a ‘virtual assignment’ and that this was in breach of its lease.
    Held: The Abbey National case was not helpful. However, the arrangement was not a breach . .
  • Cited – Clarence House Ltd -v- National Westminster Bank Plc CA (Bailii, [2009] EWCA Civ 1311)
    The defendant tenants, anticipating that the landlord might delay or refuse consent to a subletting entered into a ‘virtual assignment’ of the lease, an assignment in everything but the deed and with no registration. The lease contained a standard . .
  • See Also – Saunders -v- Vautier (, Commonlii, [1841] EngR 765, (1841) Cr & Ph 240, (1841) 41 ER 482)
    . .

(This list may be incomplete)

Last Update: 07-Jul-16
Ref: 182790

Thomas v Thomas; 16 Dec 1864

References: [1864] EngR 865, (1864) 2 Dr & Sm 298, (1864) 62 ER 635
Links: Commonlii
Although the law presumes a person, who has not; been heard of for seven years, to be dead, yet (in the absence of special circumstances it draws no presumption from that fact as to the particular period when he died ; and the onus of proving death at any particular period of time within the seven years lies with the party alleging death at such particular time.
Last Update: 30-Jan-16 Ref: 282579

Thomas v Thomas; 11 Jul 1844

References: [1844] EngR 773, (1844) 14 Sim 234, (1844) 60 ER 348
Links: Commonlii
By a marriage settlement, the trustees were directed, after the decease of the survivor of the husband and wife, to convey, assign and deliver the settled property to such children or child of the marriage, or the lawful issue of such who should or might be living at the decease of the survivor, and who should attain twenty-one, to whom the husband and wife should jointly appoint, or to whom the survivor of them should appoint; and in default of appointment, to permit the property to be held and enjoyed by and equally between ail the children of the marriage and the survivors of them, and the lawful issue of such children or child so surviving the husband and wife and attaining twenty-one, such issue representing and taking the share that the parent would have taken if living.
Held, that the words in the clause creating the power, ”who shall or may be living at the decease of the survivor,’ referred to the children of the marriage, and not to their issue ; and, therefore, that clause exceeded the limits prescribed by law ; and, consequently, that an appointment made to the son of a daughter of the marriage was void.
Last Update: 12-Jan-16 Ref: 305365

Miles v Miles; 12 Jan 1866

References: [1866] EngR 53 (B), (1866) 35 Beav 191
Links: Commonlii
By his will, the testator gave ‘all that my messuage, partly freehold and partly leasehold,’ in Cannon Street, according to the nature and tenure thereof, respectively, in trust for his widow for life, or, as to the leaseholds, for so long as the term and interest in them should exist, with remainder over. After the date of his will, the reversion in fee of the leaseholds was purchased by, and conveyed to, the testator. Held, that the fee of the whole passed under the specific gift of ‘my messuage’ at C., and that the rent of the devise was descriptive.
Last Update: 12-Dec-15 Ref: 280764

Surtees v Parkin; 10 Jul 1854

References: [1854] EngR 736, (1854) 19 Beav 406, (1854) 52 ER 407
Links: Commonlii
A testator bequeathed legacies to A., B. and C., payable out of his personal estate, and he devised his real estates, subject to the payment of his debts, to D. and E. The personal estate being exhausted in payment of debts, the legatees were held entitled, on the principle of marshalling, to have recourse, for payment, to the real estate, to the prejudice of the devisees.
Last Update: 25-Oct-15 Ref: 293593

Bentley v Oldfield; 8 Nov 1854

References: [1854] EngR 859, (1854) 19 Beav 225, (1854) 52 ER 335
Links: Commonlii
Devise of ‘my property in houses, &c., at G.’ held (independently of Wills Act) to pass the fee.
A testator gave his real and personal estate to trustees, for the maintenance of his children until they attained twenty-one. As thay arrived at that age respectively, he directed it to be divided as follows: A legacy of 2100 to his son, and his property at G. (freehold), between his daughters.
Held: on a deficiency of personal estate, that the legacy was not charged on the real estate.
Observation on the doctrine of Roberts v Walker, 1 Russ & Myl 752.
A testator, in the first instance (as was held) devised freeholds to his three daughters equally, in fee, and he further willed the several shares to his three daughters as before mentioned, to have the interest for their use during their natural lives, and afterwards devised equally amongst their children, and, for want of children, to go to their husbands, if living.
Held: that the daughters took an estate for life, and in defauIt of children, their husbands, if living, took the fee.

Gurney v Gurney; 15 Mar 1855

References: (1855) 3 Drew 208, [1855] EngR 306, (1855) 61 ER 882
Links: Commonlii
The will gave first a legacy then divided the residue between two. The will was witnessed correctly, but the two residuary beneficiaries witnessed a later codicil revoking the prior legacy.
Held: Although the revocation did increase the residue, the original gifts of residue had been validly made.
Statutes: Wills Act 1937 15

Bolton v Powell, Howard v Earle; 11 Mar 1852

References: [1852] EngR 352, (1852) 2 De G M & G 1, (1852) 42 ER 771
Links: Commonlii
An administrator of an intestate died in 1817 indebted to a large amount in respect of his receipts as administrator, but leaving sufficient personal estate to pay this amount, and also leaving freehold estates. In the same year a suit was instituted for the administration of his personal estate, and in 1832, it appeared from the report in that suit, that his personal estate had been misapplied, and that his executor had become bankrupt. Thereupon, and in the same year (1832), an administratrix de bonis non of the intestate instituted a suit against the administrator’s heir and the sureties, in the usual administration bond, and against the representatives of the Archbishop (who had died), praying to have the benefit of the bond, and to charge by means of the administrator’s freehold estates. No decree was made in this suit, the Plaintiff having married in 1838, and having died in 1847, without the suit having ever been revived. In 1848 another of the next of kin, who had been a Defendant to the suit of 1833, took out administration de bonis non of the intestate, and filed a bill of revivor and supplement, claiming to have the benefit of the suit of 1832. Held, that the suit of 1833 must be considered as having been abandoned, and that the suit of 1848 must be considered an original suit, and as such barred by length of time and laches.

Kane v Reynolds; 25 Nov 1854

References: [1854] EngR 953, (1854) 4 De G M & G 565, (1854) 43 ER 628
Links: Commonlii
The solicitor for the affairs of the Treasury, as nominee of the Crown, having taken out letters of administration of the goods of an intestate on the assumption that he had died without next of kin, was held not entitled to the costs of a suit instituted by a person rightfully claiming as next of kin.

William M’Mahon And Wife v Burchell And Another; 4 Dec 1846

References: [1846] EngR 1180, (1846) 2 Ph 127, (1846) 41 ER 889
Links: Commonlii
This case cites:

  • See Also – MacMahon -v- Burchell ([1843] EngR 526, Commonlii, (1843) 3 Hare 97, (1843) 67 ER 312)
    A share of rent due from the occupying tenant of certain premises to the estate of a testatrix, who was one of several tenants in common of the same premises, allowed to be set off by her executors in a suit for a legacy bequeathed by the testatrix . .
  • See Also – M’Mohan -v- Burchell ([1845] EngR 724, Commonlii, (1845) 1 Holt Eq 186, (1845) 71 ER 716)
    . .
  • See Also – M’Mahon -v- Burchell CA ((1846) 1 Coop t Cott 457 (47 ER 944), SC 2 Ph 127 (41 ER 889))
    Terence M’Mahon had left his house in St Christopher to his seven children as tenants in common. One of them (William) frequently occupied the house, three others occupied it occasionally, and three not at all. The executors of one of the children . .
  • See Also – M’Mohon -v- Burchell ([1846] EngR 760, Commonlii, (1846) 5 Hare 322, (1846) 67 ER 936)
    . .

The Attorney General v Price; 26 Nov 1810

References: [1810] EngR 575, (1810) 17 Ves Jun 371, (1810) 34 ER 143
Links: Commonlii
Devise to A and his heirs; with a direction, that yearly he and his heirs shall for ever divide and distribute according to his and their discretion amongst the testator’s poor kinsmen and kinswomen, and amongst their offspring and issue dwelling within the County of B. £20 by the year. This is in the nature of a charitable bequest ; and, the Will being made in 1581, was sustained; and inquiries directed as to the poor relations dwelling within the county of B.
This case is cited by:

  • Cited – Scarisbrick’s Will Trusts, In re ChD ([1950] 1 All ER 143, [1950] Ch 226)
    The court considered whether a trust was charitable.
    Held: The distinction lay in whether the gift took the form of a trust under which capital was retained and the income only applied for the benefit of the objects, in which case the gift was . .

Butlin v Barry; 5 Sep 1837

References: , [1837] EngR 984, (1837) 1 Curt 614, (1837) 163 ER 215
Links: Commonlii
(Prerogative Court) A will being drawn by a solicitor, in which a considerable legacy was given to himself and to the medical man and butler of the deceased, excluding an only son, the presumption of law is strong against the act, and the Court requires strong evidence to satisfy it that the act is the real and voluntary act of the testator. Under the circumstances sufficient evidence being given of the capacity of the deceased and of his knowledge of the contents of the instrument, the Court pronounced for the will and condemned the son in costs from the time of giving in his allegatian.
This case cites:

  • See Also – Barry -v- Butlin (Bailii, [1836] UKPC 9, [1838] 2 Moo PCC 480)
    The hearing of a cause in the Prerogative Court is one continuous act, and after a cause has been set down for sentence on the second assignation, it is not competent for either of the litigant parties to interpose an appeal, till sentence has been . .

This case is cited by:

  • Appeal from – Barry -v- Butlin PC ((1838) 2 Moore’s PCC 480, Commonlii, [1838] EngR 1051, (1838) 1 Curt 637, (1838) 163 ER 223, Commonlii, [1838] EngR 1056, (1838) 2 Moo PC 480, (1838) 12 ER 1089, Commonlii, [1836] EngR 855, (1836) 1 Moo PC 98, (1836) 12 ER 749, Bailii, [1838] UKPC 22)
    The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .

Egerton v Lord Brownlow; 20 Aug 1851

References: [1851] EngR 789, (1851) 1 Sim NS 464, (1851) 61 ER 180
Links: Commonlii
John WilIiam Earl of Bridgewater devised his freehold estates to trustees, in trust to convey them to the use of Lord Alford, his great-nephew, for ninety-nine years, if he should so long live ; remainder to trustees and their heirs doring the life of Lord Alford, in trust to preserve contingent remainders ; remainder to the use of the heirs male of the body of Lord Alford, with diverse remainders over: provided that, if Lord Alford should die not having acquired the title of Duke or Marquis of Bridgewater, the estate directed to be limited to the heirs male of his body should cease, and the estates should thereupon go over and be enjoyed according to the subsequent uses and limitations directed by his will. Lord Alford died leaving a son, but without having acquired the title. Held, that the proviso was valid.
This case is cited by:

  • Appeal from – Egerton -v- Earl of Brownlow HL ([1853] 4 HLC 484, [1853] 4 HLC 1, [1853] EngR 885, Commonlii, (1853) 10 ER 359)
    The House considered a challenge to the terms of a trust on the basis that it offended public policy. The House therefore considered the nature and importance of public policy.
    Held: Public policy ‘has been confounded with what may be called . .

M’Mohon v Burchell; 5 Jun 1846

References: [1846] EngR 760, (1846) 5 Hare 322, (1846) 67 ER 936
Links: Commonlii
This case cites:

  • See Also – MacMahon -v- Burchell ([1843] EngR 526, Commonlii, (1843) 3 Hare 97, (1843) 67 ER 312)
    A share of rent due from the occupying tenant of certain premises to the estate of a testatrix, who was one of several tenants in common of the same premises, allowed to be set off by her executors in a suit for a legacy bequeathed by the testatrix . .
  • See Also – M’Mohan -v- Burchell ([1845] EngR 724, Commonlii, (1845) 1 Holt Eq 186, (1845) 71 ER 716)
    . .
  • See Also – M’Mahon -v- Burchell CA ((1846) 1 Coop t Cott 457 (47 ER 944), SC 2 Ph 127 (41 ER 889))
    Terence M’Mahon had left his house in St Christopher to his seven children as tenants in common. One of them (William) frequently occupied the house, three others occupied it occasionally, and three not at all. The executors of one of the children . .

This case is cited by:

Malone of Rathcaslin In The County Of Westmeath v Malone Of Coburg Place In The City Of Dublin, O’Connor, Tuite, Ardill, O’Connor, Thomas Richard Rooper, John Conroy Browne, L’Estrange, L’Estrange,; 27 Jun 1841

References: [1841] EngR 890, (1841) West 637, (1841) 9 ER 627
Links: Commonlii
JM brought his bill against an infant and several other defendants, claiming, as against them, certain estates, upon two points, one of law, upon the construction of Lord Sunderlin’s will, the other of fact, that he was the heir male of Lord Sunderlin, charging by his bill that the marriage between his father and mother took place in or about the month of January 1801. With the consent of all parties, one of them being an infant, an issue was directed to inquire whether the plaintiff was the heir at law of his father; and the plaintiff, by the evidence of his mother, proved that the marriage took place in January 1801, and that her son Anthony was born in July of the same year (which would have negatived the claim of the plaintiff, by proving that he had an elder brother); but she swore that Anthony was the last child born before and the plaintiff the eldest son born after her marriage. The infant, having afterwards attained twenty one, was permitted to put in a new answer, and make a new defence ; and it was afterwards ordered that a new trial of the issue should take place, with liberty for him and other defendants to appear by counsel on the trial, and to give the judges report in evidence in respect of those witnesses who, having given evidence in the first trial, bud died. Held, that though it is a matter of discretion in a court of equity whether it will first decide the law or the fact, that the Court had, in the present instance, exercised a sound discretion in adopting the latter mode, inasmuch as all but one had concurred in that course, and a different course as to one might have led to different deterniinations upon the same point: That the issue directing the jury to inquire whether the plaintff was the heir at law was the proper issue to be tried: That though the date of the marriage proved was at variance with that alleged on the record, the Court was right in not dismissing the bill, but granting a new trial, on the ground of their being a misapprehension of the date or the facts: That the infant, though strictly speaking not a party to the issue, being permitted to make a new defence, was bound by the issue: That the judges report was properly directed to be received in evidence, being evidence between the same parties and to the same point.

M’Mohan v Burchell; 30 Apr 1845

References: [1845] EngR 724, (1845) 1 Holt Eq 186, (1845) 71 ER 716
Links: Commonlii
This case cites:

  • See Also – MacMahon -v- Burchell ([1843] EngR 526, Commonlii, (1843) 3 Hare 97, (1843) 67 ER 312)
    A share of rent due from the occupying tenant of certain premises to the estate of a testatrix, who was one of several tenants in common of the same premises, allowed to be set off by her executors in a suit for a legacy bequeathed by the testatrix . .

This case is cited by:

  • See Also – M’Mahon -v- Burchell CA ((1846) 1 Coop t Cott 457 (47 ER 944), SC 2 Ph 127 (41 ER 889))
    Terence M’Mahon had left his house in St Christopher to his seven children as tenants in common. One of them (William) frequently occupied the house, three others occupied it occasionally, and three not at all. The executors of one of the children . .
  • See Also – M’Mohon -v- Burchell ([1846] EngR 760, Commonlii, (1846) 5 Hare 322, (1846) 67 ER 936)
    . .
  • See Also – William M’Mahon And Wife -v- Burchell And Another ([1846] EngR 1180, Commonlii, (1846) 2 Ph 127, (1846) 41 ER 889)
    . .

Knox v Wells; 22 Dec 1864

References: [1864] EngR 882, (1864) 2 H & M 674, (1864) 71 ER 626
Links: Commonlii
ER A testator devised Blackacre to trustees upou trust out of the rents and profits to pay an annuity to J and A, his wife, jointly, and a similar annuity to the survivor, and upon trust to accumulate the residue for the benefit of the children of J and divide the same among such children when the youngest attained 30, ‘and if any of such children should die under 0 leaving issue such issue were to take their parent’s share. Held, that all the children who survived, took vested interests.

Harwood v Fisher; 23 Dec 1834

References: [1834] EngR 1176, (1834) 1 Y & C Ex 110, (1834) 160 ER 46
Links: Commonlii
Where the first husband of a woman entitled to a legacy of 600l, chargeable, in default of personalty, on the testator’s real estate, verbally agreed with the three devisees of the real estate to sell the legacy to them for 200l a piece, but received the consideration from one only of the devisees, taking interest on the 400l, due from the two others. Held, that to the extent to 400l. this was not a reduction of the legacy into possession, and that to a suit instituted by the woman and her second husband to recover what was due on the legacy, the representatives of the first husband were not necessary parties. Where facts are stated in the answer which are not contradicted, and which, if true, would lead to a material alteration in the frame of the suit, the Court will, on motion, permit the minutes of the decree to be amended, with a view to ascertain the truth of those facts.

Green v Briscoe; 9 May 2005

References: Lawtel 09-May-2005, [2005] All ER (D) 96
The Court had dismissed an action brought to obtain an order pronouncing against a will, revocation of the probate granted in respect of the will and a declaration of intestacy. The defendant executor had counterclaimed for a grant of probate in solemn form. One member of the family had acknowledged service of the action and had indicated that he wanted to be satisfied that the will had been properly executed but did not intend to put forward any positive case.
Held: The action was dismissed, but the court denied permission to the defendant to discontinue the counterclaim as against the family member, because a serious issue had been raised as to the validity of the will. The defendant executor was required to continue to seek an order for a grant of probate in solemn form.
This case is cited by:

  • See Also – Briscoe -v- Green ChD (Bailii, [2006] EWHC 2116 (Ch))
    . .
  • Cited – Wylde -v- Culver ChD (Bailii, [2006] EWHC 923 (Ch), [2006] 1 WLR 2674, [2006] 4 All ER 345)
    The claimant sought to discontinue his probate action on the day of trial, and an order as to costs.
    Held: The discontinuance should be allowed, there being no public interest to be served in a continuance. As to costs ‘in probate actions . .

Egerton v Jones; 16 Mar 1830

References: [1830] EngR 487, (1830) 3 Sim 409, (1830) 57 ER 1051
Links: Commonlii
An estate at C was settled on A for life, remainder to his first and other sons in tail male, remainder to A. in fee. A. devised as follows : ‘As to the reversion and inheritance of the freehold estate at C., purchased by me in pursuance of my marriage articles, bearing date, &e., in case of failure of issue of my body by my said wife, I give and devise the same,’ &e. He then limited the estate to his brothers in succession, and to their respective first and other sons in tail male. The Court was of opinion that the devise was good.
This case is cited by:

  • See Also – Egerton -v- Jones (Commonlii, [1830] EngR 549, (1830) 3 Sim 392, (1830) 57 ER 1044 (B))
    Upon the allowance of exceptions to a report approving of a title, the Court will, on the application of the vendor, refer it back to the Master to review his report, in orders to give the vendor an opportunity of producing evidence to remove the . .
  • See Also – Egerton -v- Jones (Commonlii, [1830] EngR 780, (1830) 1 Russ & My 694, (1830) 39 ER 266)
    An exception to a report in favour of the title having been on argument allowed, leave was given to the Plaintiff, some time afterwards, to go again before the Master, for the purpose of bringing evidence to shew that the objection which the Court . .

Smith v Brooksbank; 25 Jun 1834

References: , [1834] EngR 880, (1834) 7 Sim 18, (1834) 58 ER 743 (B)
Links: Commonlii
A bequeathed a reversionary interest, expectant on his wife’s death, in a sum of stock to B. B. bequeathed it to C., and C. bequeathed it to D, who, on the death of A’s wife, filed a bill against the trustees to have the stock transferred to him, alleging that the executors of A. and B, and C. had successively assented to the bequests.
Held: that the executors were not necessary parties.
This case is cited by:

  • See Also – Brooksbank -v- Smith (, Commonlii, [1836] EngR 447, (1836) Donn Eq 11, (1836) 47 ER 193 (B))
    In this case, trustees under a will, who were solicitors, had by mistake transferred stock to a person not entitled. Baron Alderson said, this being under circumstances of mistake, it appeared clear to him that the Plaintiffs were entitled to . .
  • See Also – Brooksbank And Another -v- Smith (, Commonlii, [1836] EngR 446, (1836) 2 Y & C Ex 59, (1836) 160 ER 311)
    The testatrix died in 1818 leaving a fund in trust, subject to a life interest, for her children in equal shares, with substitutional gifts if any child predeceased her leaving issue. Her daughter Elizabeth did predecease her by two months, but on . .

Overend v Gurney; 25 Jul 1834

References: , [1834] EngR 941, (1834) 7 Sim 128, (1834) 58 ER 785
Links: Commonlii
The testator gave real property and a sum of stock to A for her life, and after her death to his brother absolutely: and he gave legacies, which he directed to be paid as soon as convenient after hie death, to his nephews and nieces, and the residue of his property to his brother absolutely. The brother having died, the testator, by a codicil reciting that fact, and that, thereby, the devises and bequests to his brother had lapsed, gave an annuity to his brother’s widow, and directed his trustees to pay the income of the residue of his personal estate to A. for life, and gave to her all his real estates for life, and, after her death, to his trustees in trust to sell, and the proceeds to fall into his personal estate : he then gave £10,000 to each of his nieces, in addition to the legacies given to them by the will, and directed that that sum for each of them should be held by his trustees for their separate use : and he gave all the clear residue of his estate (after providing for the before-mentionedlegacies, and also those given by his will) to his nephews. Held, that the legacies given to the nieces by the codicil were not payable till after A’s death.

Cobbett v Ludlam, Executor of Oldfield; 26 Nov 1855

References: [1855] EngR 839, (1855) 11 Exch 446, (1855) 156 ER 906
Links: Commonlii
O, the defendant’s testator, instituted a suit in Chancery for the administration of the estate and effects of C, the plaintiffs testator. An order was made by the Court of Chancery, that the plaintiff be restrained by injunction from interferlng with the estate or effects of C. The plaintiff brought an action against the defendant for an alleged infringement by O of C’s copyright in certain books
Held: First, that the action was in disobedience of the order of the Court of Chancery, since the damages, when recovered, would be assets of C. in the plaintiff’s hands. Secondly, that under the 226th section of the Common Law Procedure Act, 1852, this Court had jurisdiction to stay proceedings in the action, although no writ of injunction had issued.
Statutes: Common Law Procedure Act 1852 226

Willeter v Dobie; 23 Jun 1856

References: [1856] EngR 706, (1856) 2 K & J 647, (1856) 69 ER 942
Links: Commonlii
A married woman, by her will, in exercise of a power of appointment over trust moneys, made several bequests, and ‘after payment of her just debts, funeral and testamentary expenses, and the expenses attending the execution of her will, appointed’ the residue of the trust moneys among her nieces.
Held: The charge of funeral expenses was not contingent upon her surviving her husband, and that her husband surviving was entitled to repayment, out of the trust moneys, of money paid by him in respect of such expenses.

Earle v Bellingham; 24 Jul 1857

References: (1857) 24 Beav 448, [1857] EngR 795 (B), (1857) 24 Beav 445
Links: Commonlii
The right to receive legacies charged on a reversionary legacy payable under the will of another was not a present right to receive them until the reversionary legacy fell into possession on the death of the life tenant.
This case is cited by:

  • Cited – Hornsey Local Board -v- Monarch Investment Building Society CA ([1889] 24 QBD 1)
    The local authority had incurred expense in paving a street. They were entitled to apportion those expenses amongst the owners of the properties fronting onto that street and summarily to recover from the respective owners the amounts so . .
  • Cited – Gotham -v- Doodes CA (Bailii, [2006] EWCA Civ 1080, Times 14-Aug-06, [2007] 1 WLR 86)
    The former bankrupt resisted sale of his property by the trustee, saying that enforcement was barred by limitation. He and his wife bought the property in early 1988, and he was made bankrupt in October 1988. He was dischaged from bankruptcy in . .

Stephen Lazar And His Wife Thamar Lazar v Colla Ragava Chitty; 3 Dec 1838

References: , [1838] EngR 1035, (1838) 2 Moo Ind App 84, (1838) 18 ER 233, [1838] UKPC 21
Links: Commonlii, Bailii
(India) Legacy of 12,000 star pagodas reserved by a Testator from his estate, and devised in favour of his Great-grand-daughter, having, in pursuance of the directions contained in the Will been put in strict settlement by the Executors, and subsequently secured by a mortgage of the real estate of the Testator to the Trustee of the settlement: held to be an equitable charge upon the whole of the real estate of the Testator, and there being no evidence of the payment off of such charge, the sale of a portion by the Sheriff of Madras, can under a writ of execution, declared to be invalid.

Bosch v Perpetual Trustee Co: 1938

References: [1938] AC 463
If a Court finds that the testator has been guilty in all the circumstances of a breach of moral obligation owed by a father towards his child, by leaving the child in straitened financial circumstances, the Court must ensure that adequate provision is made for the child out of the estate, having regard to his need for maintenance and support.
This case is cited by:

  • Cited – Goodchild and Another -v- Goodchild CA (Times 12-May-97, Bailii, [1997] EWCA Civ 1611, [1997] 3 All ER 63, [1997] 1 WLR 1216)
    The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .

(This list may be incomplete)
Last Update: 19-Nov-15 Ref: 214598

Brooke v Garrod; 20 Jul 1857

References: [1857] EngR 783, (1857) 3 K & J 608, (1857) 69 ER 1252
Links: Commonlii
This case cites:

  • See Also – Brooke -v- Garrod ((1857) 3 K & J 608, (1857) 2 De G & J 62, [1857] EngR 4 (B), Commonlii)
    The testator directed his trustees to offer all his real estate to his brother at the price of £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, . .

Swaffield v Orton; 2 Jun 1847

References: [1847] EngR 576, (1847) 1 De G & Sm 326, (1847) 63 ER 1088
Links: Commonlii
A testator, after bequeathing to his daughter (a widow) an annuity, and directing his trustees to set apart a sufficient sum of stock to answer the growing payments, bequeathed his residuary personal estate to and to be equally divided between his grandson and granddaughter (by name) as tenants in common ; but in case of the death of the granddaughter, under twenty-one and unmarried, in the lifetime of the grandson, or in case of the death of the grandson in the lifetime of the granddaughter, under twenty-one, he bequeathed the whole to the survivor ; and, after directing payment, during the minority of the grandchildren, for their maintenance, the testator directed that the clear surplus of the income of his residuary estate should accumulate in the hands of his executors, and be added to the principal of the share of his grandchildren in the residue, and directed that his grandchildren respectively should not be entitled to receive his or her share, or the accumulations, until after the death of their mother (the annuitant). The granddaughter married under age, and articles were executed on her marriage, whereby it was agreed, when she became entitled to the absolute and immediate possession of any part of the residuary estate, the same and all accumulations should be settled on certain trusts for the separate use of the wife for life, with subsequent trusts for the husband and children, and a proviso referring to and dependent on the trust for accumulation in the will. On a bill filed by the granddaughter, during her mother’s lifetime, for a transfer of the fund : Held, that the direction to accumulate in the will was precarious and ineffectual, and was not rendered otherwise by the settlement, and that the granddaughter’s moiety became capital at her marriage, and that the accumulations since that period belonged to her for her separate use.

MacMahon v Burchell; 20 Apr 1843

References: [1843] EngR 526, (1843) 3 Hare 97, (1843) 67 ER 312
Links: Commonlii
A share of rent due from the occupying tenant of certain premises to the estate of a testatrix, who was one of several tenants in common of the same premises, allowed to be set off by her executors in a suit for a legacy bequeathed by the testatrix to the debtor; but not as against a legacy bequeathed by the testatrix to the wife of the debtor.
This case is cited by:

Saltmarsh v Barrett; 9 Jun 1862

References: [1862] EngR 779, (1862) 31 Beav 349, (1862) 54 ER 1173
Links: Commonlii
An executor, under a bona fide belief that on the true construction of the will they were entitled thereto, sold out stock, retained one-third and paid two-thirds to the co-executors. It having been declared in the suit that the next of kin were entitled to this fund, and that the executor was bound to restore it : Held, that he was only liable to pay interest on the one-third retained by himself.
This case cites:

  • See Also – Saltmarsh -v- Barrett CA ([1861] EngR 521, Commonlii, (1861) 29 Beav 474, (1861) 54 ER 711)
    A testator gave legacies of nineteen guineas to each of his executors, and he bequesthed his residue to the m ‘absolutely’, charged with certain legacies. He also charged them to deduct their costs, charges and expenses out of any part of his . .

Midland Counties Railway Company v Oswin; 12 Feb 1844

References: [1844] EngR 251, (1844) 1 Coll 74, (1844) 63 ER 327
Links: Commonlii
A railway company having, under their Act of Parliament, power to contract with incapacitated persons for the purchase of lands, and a right, upon payment of the purchase-money into the bank, to the fee-simple of the purchased lands, contracted with an incapacitated person, who died before the purchase-money was paid. Held, that the title of the company could not be completed without the assistance of a Court of Equity.
A bequest of ”money, goods, chattels, estates and effects’ held to pass real estate.
In the absence of special clauses for that purpose the effect of a Railway Act is not to alter the course of devolution of property without the consent of the owner ; and therefore if a company, by virtue of their Act, contract with an incapacitated person for the purchase of lands, the purchase-money is to be considered as real and not as personal estate.

Scarlett v Lord Abinger; 4 Mar 1865

References: [1865] EngR 292, (1865) 34 Beav 338, (1865) 55 ER 665
Links: Commonlii
Property was, by will, limited to the Defendant, on condition of his settling some Scotch estates within a limited time on trusts, the validity and effect of which were doubtful. The Defendant settled the estates within the time, in general terms, on the persons on whose behalf the condition was imposed. Held, that this was a sufficient compliance with the condition.

Barry v Butlin; 22 Jun 1836

References: [1836] UKPC 9, [1838] 2 Moo PCC 480
Links: Bailii
The hearing of a cause in the Prerogative Court is one continuous act, and after a cause has been set down for sentence on the second assignation, it is not competent for either of the litigant parties to interpose an appeal, till sentence has been given on the assignation.
This was a cause originally instituted for proving the last will and testament of Pendock Barry, deceased, promoted by the respondent, the sole executor, against the appellant, the son and only next, of kin of the deceased.
The cause was commenced in the Prerogative Court of Canterbury, on the 13th, May 1833, and various pleas having been put in, and witnesses examined on both sides, was set down for sentence on the 30th May 1835, on the second assignation on the fourth session of Trinity term.
This case is cited by:

  • See Also – Butlin -v- Barry (, Commonlii, [1837] EngR 984, (1837) 1 Curt 614, (1837) 163 ER 215)
    (Prerogative Court) A will being drawn by a solicitor, in which a considerable legacy was given to himself and to the medical man and butler of the deceased, excluding an only son, the presumption of law is strong against the act, and the Court . .
  • See Also – Barry -v- Butlin PC ((1838) 2 Moore’s PCC 480, Commonlii, [1838] EngR 1051, (1838) 1 Curt 637, (1838) 163 ER 223, Commonlii, [1838] EngR 1056, (1838) 2 Moo PC 480, (1838) 12 ER 1089, Commonlii, [1836] EngR 855, (1836) 1 Moo PC 98, (1836) 12 ER 749, Bailii, [1838] UKPC 22)
    The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .

The Attorney General v John Hollingworth; 30 May 1857

References: [1857] EngR 577, (1857) 2 H & N 416, (1857) 157 ER 172
Links: Commonlii
By agreemerit made in 1794, 80001. stock was transferred by O. to H, upon the terms that H should repay the money produced by the sale of it or replace the stock at the option of O, and in the mean time pay interest at the rate of 5 per cent., the loan was secured by bond, mortgage, and a deed of covenant. O. and H being dead, E. O being the legatee ancl heiress, but not the personal representative of O., and J H. being the devisee of H , J. H. applied to E O. to assist him to raise moNey, which E. O. agreed to do on having a security for the replacement of the stock. E. O. accordingly assigned the bond mortgage, and deed of covenant of 1794, to H. and P, by way of mortgage, to secure an advance to J. H., and in consideration thereof, J. H, iri 1842, by iindenture, conveyed to E. O. the premises comprised iri the original mortgage, together with other lands, by way of mortgage, with a proviso and covenant to secure the transfer to E O. of 80001 stock E O died, and by her will forgave the mortgage debt, of 1842 to J H. Held, that the mortgage and covenant of 1842 were not so connected with the illegal agreement of 1794 as to be usurious and void, and that therefore legacy duty was payable on the bequest
This case is cited by:

  • Cited – The Commissioner of Stamp Duties -v- Bone and Others PC ([1976] TR 117, [1976] 2 All ER 354, [1977] AC 511, Bailii, [1976] UKPC 11, [1976] 2 WLR 968, [1976] STC 145)
    (Australia) A debt can only be released and extinguished by an agreement for valuable consideration or an instrument of release under seal. Where a testator or testratrix appoints a debtor as executor under a will any cause of action against the . .

Wilson v Moore; 22 Mar 1834

References: , [1834] EngR 607, (1834) 1 My & K 337, (1834) 39 ER 709
Links: Commonlii
Merchants who, by the direction of an executor, their commercial correspondent, applied a fund, which they knew to be part of the testator’s assets, in satisfaction of advances made by them, in the course of trade, to relieve the embarrasments of their correspondent, were held to be responsible for the fund so applied, to general pecuniary legatees under the will of the tesator.
Affirmed upon appeal.
This case is cited by:

  • Cited – Williams -v- Central Bank of Nigeria SC (Bailii, [2014] UKSC 10, 16 ITELR 740, [2014] WLR(D) 88, [2014] 2 All ER 489, [2014] 2 WLR 355, [2014] WTLR 873, WLRD, Bailii Summary, UKSC 2012/0113, SC Summary, SC)
    The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .

Tempest v Lord Camoys; 18 Jan 1866

References: [1866] EngR 61, (1866) 35 Beav 201, (1866) 55 ER 872
Links: Commonlii
To a bill for the administration of real and personal estate, and for the appointment of a receiver and a new trustee, a plea in bar, by the alleged executors, that they had been prevented proving by the Plaintiff’s entering a caveat in the Court of Probate, was overruled.
This case is cited by:

  • Appeal from – Tempest -v- Lord Camoys CA ((1882) 21 ChD 571)
    Jessel MR held that: ‘It is settled law that when a testator has given a pure discretion to trustees as to the exercise of a power, the court does not enforce the exercise of the power against the wish of the trustees, but it does prevent them from . .

Sibthorp v Moxton; 10 Nov 1747

References: [1747] EngR 193, (1747) 1 Ves Sen 49, (1747) 27 ER 883 (B)
Links: Commonlii
A woman by will forgives a bond-debt to her son-in-law, and desires her executor to deliver up the bond to be cancelled ; this held not to be lapsed by his dying before the testatrix.
This case is cited by:

  • Cited – The Commissioner of Stamp Duties -v- Bone and Others PC ([1976] TR 117, [1976] 2 All ER 354, [1977] AC 511, Bailii, [1976] UKPC 11, [1976] 2 WLR 968, [1976] STC 145)
    (Australia) A debt can only be released and extinguished by an agreement for valuable consideration or an instrument of release under seal. Where a testator or testratrix appoints a debtor as executor under a will any cause of action against the . .

In the Estate of Fuld, dec’d (No 3): ChD 1968

References: [1968] 1 P 675
Coram: Scarman J
The onus of proof on the balance of probabilities as to whether the Will was duly executed and whether the Deceased knew and approved the contents of the Will is upon the Defendant. The legal requirement upon the Defendant to establish these facts is a safeguard in will cases against fraud upon the dead. The weight of the burden will vary with the weight of the suspicion to be dispelled; but in a matter as vital as this the law wears no cramping straight jacket. The Court’s vigilance is called whenever circumstances reasonably excite suspicion.
Scarman J said: ‘when all is dark, it is dangerous for a court to claim that it can see the light.’
This case is cited by:

  • Cited – Fuller -v- Strum CA ([2002] WTLR 199, Times 22-Jan-02, Gazette 14-Feb-02, Bailii, [2001] EWCA Civ 1879, [2002] 2 All ER 87, [2002] 1 WLR 1087)
    The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
    Held: The onus on the propounder of a will to show that it . .
  • Cited – Sherrington -v- Sherrington ChD ([2004] EWHC 1613 (Ch), Bailii)
    The deceased had divorced and remarried. His children challenged the will made after his second marriage.
    Held: There was cogent evidence that the will was not properly executed and that the will went against his wishes as expressed to others. . .
  • Cited – Gill -v- Woodall and Others ChD (Bailii, [2009] EWHC B34 (Ch), [2009] EWHC 834 (Ch))
    The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
  • Cited – Gill -v- Woodall and Others CA (Bailii, [2010] EWCA Civ 1430, [2010] NPC 126, [2011] 3 WLR 85, [2011] WTLR 251, [2011] Ch 380)
    The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
    Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . .

Boyse v Rossborough; 11 Feb 1854

References: [1854] EngR 252, (1854) 3 De G M & G 817, (1854) 43 ER 321
Links: Commonlii
Coram: Lord Carnworth LC
A mere legal devisee may file a bill against the heir at law of the testator for the purpose of having the will established against him, though no trustess are declared by the will, and though it is not necessary to administer the estate under the direction or decree of a court of Equity.
This case cites:

  • See Also – Boyse -v- Rossborough ([1853] EngR 1056, Commonlii, (1853) Kay 71, (1853) 69 ER 31)
    A bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the purpose of establishing the will against the testator’s heir at law, although the heir has brought no action of ejectment against the devisee. . .

This case is cited by:

  • See Also – Boyse -v- Rossborough ([1854] EngR 853, Commonlii, (1854) 1 K & J 124, (1854) 69 ER 396)
    A decree of the Court of Chancery in Ireland, after verdict upon an issue devisavit vel non, does not determine the validity or invalidity of the will, so far as it relates to lands in England, and cannot be pleaded in bar to a suit in this Court. . .
  • See Also – Boyse -v- Rossborough HL ([1857] 6 HLC 2, [1857] EngR 299, Commonlii, (1857) 5 HLC 1, (1857) 10 ER 1192)
    In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are . .

Boyse v Rossborough; 5 Dec 1853

References: [1853] EngR 1056, (1853) Kay 71, (1853) 69 ER 31
Links: Commonlii
A bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the purpose of establishing the will against the testator’s heir at law, although the heir has brought no action of ejectment against the devisee.
Previously to the Statute of Frauds the Court of Chancery frequently took upon itself to determine the validity of wills by inquiry before some of the Masters of the Court, a practice which has ceased since the case of Kerrich v. Brandy, 7 Bro. P. C. 437, But, as early as the time of James the First, it appears to have been considered that the proper mode of trying the validity or invalidity of a will of real estate was by a trial at law, the Court of Chancery reserving the power to deal with the case as justice might require.
The proceeding in equity to establish a will against the heir differs very much from assisting to try its validity or invalidity, either by removing the obstacle of an outstanding
term, in which case the trial at law would be by ejectment, or by perpetuating testimony concerning the will; because, by a decree establishing the will, the heir at law is so bound that a perpetual injunction wouid be granted against him if, after such decree, he should attempt to impeach the will.
The origin of this jurisdiction is obscure ; but, on principle, it cannot arise from the fact of the devise being upon trust, for that can make no difference to the heir ; or because the Court experiences a difficulty, for then, in all other cases of difficulty occurring under deeds, there would be the same jurisdiction.
Nor can it be for the protection of trustees, because the jurisdiction exists where there is no trust, but only the obstacle of an outstanding legal estate, which prevents an action at law.
But upon principle and authority there is an inherent equity on the part of the devisee, whether legal or equitable, arising from the mere fact of the devise, to have the will established against the heir.
An averment in such a bill that A. claims to be heir of the testator, supported by a statement that he has sued in that character in Ireland, and succeeded, is sufficient.
That the legal estate has been conveyed by the Plaintiff to his own trustee since then this cause came on to be heard upon a general demurrer for want of equity.
This case is cited by:

  • See Also – Boyse -v- Rossborough ([1854] EngR 252, Commonlii, (1854) 3 De G M & G 817, (1854) 43 ER 321)
    A mere legal devisee may file a bill against the heir at law of the testator for the purpose of having the will established against him, though no trustess are declared by the will, and though it is not necessary to administer the estate under the . .
  • See Also – Boyse -v- Rossborough ([1854] EngR 853, Commonlii, (1854) 1 K & J 124, (1854) 69 ER 396)
    A decree of the Court of Chancery in Ireland, after verdict upon an issue devisavit vel non, does not determine the validity or invalidity of the will, so far as it relates to lands in England, and cannot be pleaded in bar to a suit in this Court. . .
  • See Also – Boyse -v- Rossborough HL ([1857] 6 HLC 2, [1857] EngR 299, Commonlii, (1857) 5 HLC 1, (1857) 10 ER 1192)
    In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are . .

Button v Button; 11 Jan 1840

References: [1840] EngR 301, (1840) 2 Beav 256, (1840) 48 ER 1178
Links: Commonlii
A testator gave one estate to James, upon trust to pay to testator’s wife £18 a year for life, and after her decease he gave the estate to Thomas. The testator also gave a second estate to James, upon trust to pay testator’s wife £28 a year for life, and after her decease he gave this estate absolutely to James ; and he declared, that if James should neglect or refuse to pay the annuities from either of the said estates when they became due, that his wife should have power of selling the estates, and to appropriate the money to her own use, the rents being insufficient to pay the annuities: Held, that the widow had a right to sell unless James paid the full amount of the annuities, but that he was not personally bound to pay them.

Mussumat Bebee Bachun v Sheikh Hamid Hossein And Mussumat Durjahun; And Mussumat Bebee Bachun, Mussumat Bebee Sogra And Moulvie Abdool Azeez v Sheikh Hamid Hossein And Mussumat Durjahun; 13 Dec 1871

References: [1871] EngR 57, (1871) 14 Moo Ind App 377, (1871) 20 ER 828
Links: Commonlii
A Mohamedan Widow, whose husband died without issue, having been put in possession of her husband’s estate by the Collectorate Courts as a co-heir and for her deferred dower, has a lien, as a Creditor, on the estate, and is entitled to retain possession until her dower is satisfied. 40,000. Held, in the circumstances of the status and means of the deceased Husband, and the custom of Sheikh families in Behar, not an excessive amount for deferred dower.

Watson v Mary Foxon; 13 Nov 1801

References: [1801] EngR 456, (1801) 2 East 36, (1801) 102 ER 281
Links: Commonlii
Under a limitation (after estates for life to A. and B.) of ‘all and every the said premises to all and every the younger children of 3. begotten or to be begotten, if more than one equally to be divided amongst them, and to the heirs of their respective body and bodies as tenants in common, &c. and if only one child, then to such only child and to the heirs of his or her body issuing; and for want of such issue’ (‘devise of) ‘the said premises to C. N. &c.” (with several limitations over). ” And for want of such issue,’ then testator divided the said premises between several branches of his family. Held that cross remainders were to be implied between the younger children of B. from the apparent intention of the testator from the whole of the will, notwithstanding the use of the word respective in such devise.

Boyse v Rossborough; 7 Nov 1854

References: [1854] EngR 853, (1854) 1 K & J 124, (1854) 69 ER 396
Links: Commonlii
A decree of the Court of Chancery in Ireland, after verdict upon an issue devisavit vel non, does not determine the validity or invalidity of the will, so far as it relates to lands in England, and cannot be pleaded in bar to a suit in this Court.
The right of the heir and that of a devisee to this issue, distinguished ; the former is absolute, the latter is in the discretion of the Court.
Issue devisavit vel non granted to a devisee after a decree in Ireland against the will and an order refusing a new trial ; and although subsequently an attesting witness, who had been examined in Ireland, and whose cross-examination was deposed to have been very effective in support of the heirs’ case, had died ; the devisee having appealed to the House of Lords, and not appearing to be chargeable with delay, either in the appeal or in this suit.
This case cites:

  • See Also – Boyse -v- Rossborough ([1853] EngR 1056, Commonlii, (1853) Kay 71, (1853) 69 ER 31)
    A bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the purpose of establishing the will against the testator’s heir at law, although the heir has brought no action of ejectment against the devisee. . .
  • See Also – Boyse -v- Rossborough ([1854] EngR 252, Commonlii, (1854) 3 De G M & G 817, (1854) 43 ER 321)
    A mere legal devisee may file a bill against the heir at law of the testator for the purpose of having the will established against him, though no trustess are declared by the will, and though it is not necessary to administer the estate under the . .

This case is cited by:

  • See Also – Boyse -v- Rossborough HL ([1857] 6 HLC 2, [1857] EngR 299, Commonlii, (1857) 5 HLC 1, (1857) 10 ER 1192)
    In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are . .

Lester v Garland; 8 Aug 1808

References: (1808) 15 Ves Jun 248, 33 ER 748, [1808] EngR 326, (1808) 15 Ves Jun 248, (1808) 33 ER 748
Links: Commonlii
Bequest of residue in trust in case A shall within six months after testator’s decease give security not to marry B then and not otherwise to pay to the children of A; with a proviso to go over if she shall refuse or neglect to give such security. A condition precedent. Six months exclusive of day of death – security given on six months anniversary.
Held: There was no general rule in computing time from an act or event that the day is inclusive or exclusive – depends on the reason of the thing according to circumstances.
This case is cited by:

  • Cited – Trafford Metropolitan Borough Council -v- Total Fitness UK Ltd CA (Gazette 07-Nov-02, Bailii, [2002] EWCA Civ 1513)
    The landlord served a notice to quit. It gave a date calculated by reference to the notice period, but then stated the date on which it expired. Under the rule in Lester, the notice period only began on the day after service, and that resulted in a . .
  • Cited – Dodds -v- Walker HL ([1981] 1 WLR 1027, [1981] 2 All ER 609)
    The landlord served his notice to determine the tenancy on the last day of a 30 day month. The tenant served his counternotice on the 31st day of the month four months later.
    Held: Dismissing the tenant’s appeal, the House found that the court . .

Wing v Angrave, Tulley, And Others; 29 Feb 1860

References: [1860] EngR 525, (1860) 8 HLC 183, (1860) 11 ER 397, (1860) 8 HL Cas 183
Links: Commonlii
Coram: Lord Chelmsford
Lord Chelmsford said: ‘Had it occurred to her mind that a highly improbable state of facts might arise, either of their both perishing together or of its being impossible to ascertain which was the survivor, no doubt she would have used apt words to embrace such an extraordinary contingency. Can the language which she has employed be made to include such an intention? If it cannot, then we are not at liberty to go out of the will to bring into it something which is not to be found there. The testatrix says, I give to my husband certain property, and in case he should die in my lifetime, then to the appellant [W. W.]. She clearly intended that the appellant should not have her property if her husband survived her, for on that event it was to go to him. The appellant can only be entitled in case the husband fails to take by survivorship. If the husband survived, the appellant’s bequest never came into existence. But he cannot show that the husband did not survive, and therefore he fails altogether in establishing the foundation upon which alone his right can be built.’
This case is cited by:

Freeman v Butler; 16 Nov 1863

References: [1863] EngR 954 (A), (1863) 33 Beav 289
Links: Commonlii
The defendant, the trustee and executor, was also a mortgagee on part of the estate. Upon a bill for the administration of the estate, Held that the Defendant was not bound to produce the mortgage and title-deeds, but that he must produce all, accounts in his possession relating to the mortgage.

Elizabeth Ann Jameson and Alan William Wyatt (Executors of the Estate of David Allen Jameson) v Central Electricity Generating Board and Babcock Energy Limited: CA 13 Feb 1997

References: Times 25-Feb-1997, [1997] EWCA Civ 1008
Links: Bailii
Executors may sue for a dependency claim despite a full and final settlement having been made by the deceased.
This case cites: