Ackroyd v Smithson and Others
| Jurisdiction | England & Wales |
| Judgment Date | 04 March 1780 |
| Date | 04 March 1780 |
| Court | High Court of Chancery |
English Reports Citation: 28 E.R. 1262
LINCOLN'S INN HALL
S. C. I Wh. & T. L. C. (7th ed.)372. See Simmons v. Pitt, 1873, L. R. 8 Ch. 980; Steed v. Preece, 1874, 18 Eq. 197; Curteis v. Wormald, 1878, 10 Ch. D. 174; Hyett v. Mekin, 1884, 25 Ch. D. 740; In re Cameron, Nixon v. Cameron, 1884, 26 Ch. D. 29; Re Milnes, Milnes v. Sherwin, 1885, 53 L. T. 535.
ackroyd against smithson and Others. Lincoln's Inn Hall, 4th March 1780. [S. C. 1 Wh. & T. L. C. (7th ed.) 372. See Simmons v. Pitt, 1873, L. R. 8 Ch. 980 ; Steed v. Preece, 1874, 18 Eq. 197 ; Curteis v. Wormald, 1878, 10 Ch. D. 174; Hyett v. Mekin, 1884, 25 Ch. D. 740; In re Cameron, Nixon v. Cameron, 1884, 26 Ch. D. 29 ; Be Milnes, Milnes v. Sherwin, 1885, 53 L. T. 535.] [S. C. shortly 3 Cox, P. W. 22, note.]-Testator gave several legacies, and ordered his real and personal estate to be sold, his debts and legacies paid, and the residue to 1BH0. 0. C 504. ACKROYB V. SMITHSON 1263 certain legatees, in the proportion of their legacies. Two of the residuary legatees died, living the testator. These shares are lapsed, and so far as they are constituted by personal estate, shall go to the person next of kin, and so far as they are constituted of real estate, to the heir at law.(l) Christopher Holdsworth, by his will, gave (int. al.) to the defendants, Smithson and Ibbetson, their executors and administrators, 200 in trust to put the same out at interest, and to apply the interest in bringing up the defendant, Mary Bracklebank, then an infant, till 21, the principal to be paid to her at 21, and if she died before 21, then to be paid to her representative ; and bequeathed to the Rev. Thomas Whitaker 100, to James Roberts and William Roberts 100 each, to Grace Ogle 200, to George, Ann, and Phoebe Ogle, her children, 100 each, to Joseph Scurr 200, to Benjamin Wright 200, to Mrs. Molyneaux 400, to Hannah Close 150, to William Hawkeswell 100, to Mary Ross 200, to Joseph Marshall 200, all which legacies, together with other legacies given by his will, he directed to be paid at the end of six months after his decease; and the said testator, thereby, gave all his messuages, cottages, lands, [504] tenements and hereditaments, situate at the Bank, in the township of Leeds, with their appurtenances, and all his real estate, not therein before devised, and all his household goods and furniture, plate, linen, stock in trade, and all his personal estate whatsoever, unto the defendants Smithson and Ibbetson, their heirs, executors, administrators, and assigns, to hold the same to them, their heirs, executors, administrators, and assigns for ever, in trust that they should, as soon as convenient after his decease, sell all his said messuages, &c., for such price or prices as could be got for the same, and thereby to convert such real and personal estate, so to them devised, and every part thereof, into ready money, and by and out of the money arising by such sale, to pay all his debts, legacies, and funeral expences, and charges of proving his will; and after payment thereof, and retaining to themselves 50 each, which he thereby gave them for their trouble, in trust out of such monies to arise as aforesaid, to pay all legacies and annuities thereby bequeathed, at the time and in the manner thereby directed; and if, after all such payments made, and putting out of the funds as'thereby directed, for raising the annuities thereby given, and indemnifying his trustees from all charges, expences, and loss which might attend the carrying the trusts of his will into execution, there should remain an overplus in the hands of the trustees, which he apprehended there would be to a considerable amount, he directed that they, and the survivors of them, should, within six months after the same should be ascertained, pay the same unto his said legatees, Thomas Whitaker, James Roberts, William. Roberts, Grace Ogle, George Ogle, Ann and Phoebe Ogle, Joseph Scurr, Benjamin Wright, Mrs. Molyneaux, H. Close, William Hawkeswell, Mary Bracklebank, Mary Ross, and Joseph Marshall, in proportion to their several and respective legacies therein to them beguealhed ; and the testator thereby willed and devised that two several sums of 250 each, which he had therein directed to be put out on securities in the names of his-trustees, and the interest arising therefrom to be respectively paid to M. Thackeray and R. Gaunt, during their respective lives, should upon the several deaths of them the said M. Thackeray and R. Gaunt, be paid in the like proportions unto them his said several and respective legatees. Benjamin Wright and Mrs. Molyneaux died in the life-time of the testator. [505] The bill was filed by the next of kin of the testator, against the surviving legatees, and the heir at law; claiming the legacies given to the deceased legatees, their shares in the overplus, and in the two sums of 250 as lapsed, and become part of the personal estate of the testator. The cause came on at the .Molls, 10th July 1778, when, his Honor (Sir Thomas Sewell) being of opinion that the surviving legatees took the whole residue, in proportion to their several legacies, dismissed the bill without, costs. From this decree, the plaintiffs appealed to Lord Chancellor ; and the cause coming on to be heard before his Lordship,- Mr. Kenyan attempted to support the decree ; But Lord Chancellor, being clear, without hearing much argument, that this was a tenancy in common in the residue, and that therefore the shares of the legatees who died in the testator's life-time, were undisposed of; said the only question was, whether such shares belonged wholly to the next of kin, or to the heir at law. The Attorney General [Wedderburn], Mr. Madocks, and Mr. Selwyn (for the plaintiffs, 1264 ACKROYD V. SMITHSON 1 BBO. C. 0. 506. the next of kin) contended, that the testator had converted his real estate into money, out and out, that he had mixed two funds, and made all personal estate (see Fletcher v. Ashburner, 1 Bro. C. C. 497); that the cases therefore of Mallabar v. Mallabar, For. 79, and Durour v. Motteux, 1 Ves. 320, must govern the decision here, and that the blending the funds distinguished this case from that of Digby v. Legard (cited ante, 501). Mr. Selwyn mentioned the cases of Flanagan v. Flanagan (cited ante, p. 500. Fletcher v. Ashburner (ante, p. 497), and Ogle y. Cook, cited ante, 501. Lord Chancellor thought the two former cases did not apply; but being, in general, of opinion with the counsel for the next of kin, asked the counsel for the heir at law, upon what grounds they could support his claim. Mr. Scott (2) for the heir at law, said they claimed on his behalf such interest in the monies produced by the sale of the testator's real estates as the deceased residuary legatees would have been intitled to, [506] if they had survived the testator; or so much...
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