References: (1804) 9 Ves Jr 591, [1804] EngR 302, (1804) 9 Ves Jun 591, (1804) 32 ER 732
Links: Commonlii
Coram: Lord Eldon LC
A testator left his business and land to his two sons jointly to carry on that business after his death. They did so as partners. One issue was whether in doing so they severed the joint tenancy in the land, which was accessory to the business. Lord Eldon LC said that if the father’s will had made clear that the joint tenancy was to survive despite the sons’ dealings with it as partnership property, then the intention of the testator should prevail. As it was, in the absence of such an intention, it was open to the sons to sever the joint tenancy, and they had done so: ‘after transactions for 12 years; shewing that William lived and died in the persuasion, maintained by the acts of the other, that he was entitled to one-half; and after his death the Defendant acting upon the idea; which is the rational inference from the nature of the property and the transactions till his brother’s death; who was, during his whole life, entitled to sever his interest.’
This case is cited by:
- Cited – John Frederick Bathurst (As Administrator of the Estate of Michael David Bathurst Deceased) -v- Philip Charles Scarborow CA (Bailii, [2004] EWCA Civ 411)
The deceased and defendant had been partners and friends. They had bought a property expressly for the partnership and was conveyed into their names as joint tenants.
Held: The declaration in the partnership was not itself sufficient cogent . .