Addison v Busk
| Jurisdiction | England & Wales |
| Judgment Date | 05 August 1851 |
| Date | 05 August 1851 |
| Court | High Court of Chancery |
English Reports Citation: 51 E.R. 363
ROLLS COURT
[459] addison v. busk. lee v. busk. August 5, 1851. Bequest of residue to John L., but if he should die in the lifetime of the testatrix without leaving children, then to Charles L. Held, that the children of John L. took nothing by implication. In such a caae, the same words receive the same construction in the case of a residue, as in that of a mere legacy. The testatrix, Mary Tabitha Lee, by her will dated in 1847, after devising her real estate, gave her residuary personal estate to John Addison and Henry William Busk, upon trust for John Lee, but if he should die in her lifetime without leaving any child or children him surviving, then she directed that the residue of her trust monies should be in trust for the Rev. Charles Lee. John Lee did die in the lifetime of the testatrix, but leaving children, who now claimed to be entitled, by implication, to the testatrix's residuary personal estate. These were two claims filed ; the first by one of the executors against his òco-executor alone, and the second by the children of John Lee against the executors. Mr. E. Palmer and Mr. Goldsmid, in support of the claim of the children of John Lee. There is no gift to Charles Lee unless John Lee should die leaving no children. His interest was postponed for the sake of such children, and it was the evident intention of the [460] testatrix that such children should take; they must consequently take by implication. There are several authorities in favour of such a òconstruction. Thus, in Ex parte Rogers (2 Maddock, 449), the testator gave a legacy in trust for his niece for life, " and at her decease without child or children, the principal sum " to go to her sister's : it was held by Sir W. Grant that the children took by implication. In Bibin v. Walker (2 Amb. 661), the testator, who had made no previous gift to Athaliah Bibin, directed that if she died without issue, then the moiety of his leasehold, " before given to his said niece Athaliah Bibin," should go to E. Y.: it was held that Athaliah Bibin took by implication. In Blackwell v. Bull (1 Keen, 176), under a devise of real and personal estate, in trust at his (the testator's) wife's death, it was held that his wife took a life-estate by implication. In Cockshott v. Cocksfwtt (2 Collyer, 432), several gifts were made to certain persons, but the òdevisees were " not to be put in possession of the estates so long as his wife Margaret...
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