Alexander v Brame
| Jurisdiction | England & Wales |
| Judgment Date | 31 July 1855 |
| Date | 31 July 1855 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 205
BEFORE THE LORDS JUNSTICES, MR. JUSTICE WIGHTMAN AND MR. JUSTICE ERLE.
S. C. 19 Beav. 436; 1 Jur. (N. S.), 1032; 3 W. R. 642; and in House of Lords (sub. nom. Jeffries v. Alexander), 8 H. L. C. 594; 31 L. J. Ch. 9; 7 Jur. (N. S.), 221; 2 L. T. 748. For subsequent proceedings, see S. C. 30 Beav. 153. On point as to Mortmain Act, considered, In re, Robson, 1881, 19 Ch. D. 156; followed, Fox v. Lownds, 1875, L. R. 19 Eq. 456; cf. Brook v. Badley, 1867, L. R. 4 Eq. 110. On point as to nature of indenture, see Coleman v. Llanelly Railway, &c., Company, 1867, 17 L. T. 87.
[525] alexander v. brame. Before the Lords Justices, Mr. Justice Wightman and Mr. Justice Erie. July 2, 3, 31, 1855. [S. C. 19 Beav. 436; 1 Jur. (X. S.), 1032 ; 3 W. R. 642 ; and in House of Lords (sub. nom. Jeffries v. Alexander), 8 H. L. C. 594; 31 L. J. Ch. 9; 7 Jur. (N. S.), 221; 2 L. T. 748. For subsequent proceedings, see S. C. 30 Beav. 153. On point as to Mortmain Act, considered, In re, ftohson, 1881, 19 Ch. D. 156 ; followed, Fox v. Lowwls, 1875, L. R. 19 Eq. 456 ; cf. Brook v. Sarlley, 1867, L. R. 4 Eq. 110. On point as to nature of indenture, see Cokman v. Llanelly Railway, &c., Company, 1867, 17 L. T. 87.]' An instrument under seal contained a covenant with trustees that the covenantor in his lifetime or his executors within twelve months after his decease would invest 60,000 in the names of trustees upon charitable trusts. It was executed by the covenantor but was not communicated to the trustees. Held, 1. That it was a deed, whether it was also testamentary or not. 2. That it was not invalid as infringing the provisions of the Statute of Mortmain. This was an appeal from the decision of the Master of the Rolls, directing an action to be brought to determine questions of law arising under the following circumstances:- By an indenture dated the 12th August 1846, and expressed to be made between Benjamin Brame of the one part, and Jeremiah Head, John Biddle Alexander, Simon Batley Jackaman and William Henry Alexander of the other part, Benjamin Brame covenanted with the other parties to the deed that his executors or administrators should, within twelve calendar month after his decease, and out of his estate, pay certain sums to and for the benefit of certain persons therein named, if living at his decease, to be invested in the names of the covenantees on the trusts therein mentioned. By another indenture of even date, and executed by Benjamin Brame alone, but expressed to be made between Benjamin Brame of the one part, and W. H. [526] Alexander, F. Alexander and G. Alexander of the other part, it was recited that the said B. Brame was desirous of founding the three charities thereinafter mentioned for certain poor belonging to and residing in the several parishes in the borough of Ipswich, and for that purpose was desirous of settling and assuring a part of his 206 ALEXANDER V. BRAME 7 DEO. M. & O. 827. personal estate upon the trusts and for the purposes thereinafter expressed or declared and contained of and concerning the same. The operative part was as follows:-"Now this indenture witneaseth, that, in pursuance of the said desire of the said B. Brame in that behalf, and for divers other good causes and considerations him thereunto moving, he the said B. Brame, for himself, his heirs, executors and administrators, doth by these presents covenant, promise and agree with and to the said W. H. Alexander, F. Alexander and G. Alexander jointly, and each of them severally, their and his respective executors and administrators, that he the said B. Brame shall and will in his lifetime, and within the space of twelve calendar months next after the day of the date of these presents, lay out and invest at interest the sum of 60,000 of lawful money of Great Britain in the names of Jeremiah Head, John Biddle Alexander, Simon Batley Jackaman and the said William Henry Alexander, or in the names or name of the survivors or survivor of them, or of the executors or administrators of such survivor, in the Government or Parliamentary stock or fund of Great Britain called the 3 per centum consolidated annuities; or in case the said B. Brame shall not in his lifetime lay out and invest the said sum of 60,000 as aforesaid, that then the executors or administrators of the said B, Brame, within the space of twelve calendar months next after his decease, and subject and without prejudice to the payment and discharge by, with or out of the estate of the said [527] B. Brame of all the funeral and testamentary expenses and other debts of the said B. Brame, and the legacies (if any) given or bequeathed, or hereafter to be given or bequeathed, by his will or any codicil or codicils thereto, and of all annuities (if any) given, bequeathed or settled, or hereafter to be given, bequeathed or settled, by the said B. Brame by his will, or any codicil or codicils thereto, or by any deed or deeds, or instrument or instruments in writing under his hand and seal, do and shall lay out and invest at interest the sum of 60,000 of lawful money of Great Britain in the names of the said Jeremiah Head, John Biddle Alexander, Simon Batley Jackaman and William Henry Alexander, or of the survivors or survivor of them, or of the executors or administrators of such survivor, in the said Parliamentary stock or fund of Great Britain, called the 3 per centum consolidated annuities, to and for the end, intent and purpose that the said 3 per centum consolidated annuities, so to be purchased as aforesaid, shall and may henceforth be held and possessed upon the trusts and for the purposes hereinafter expressed or declared." By the declaration of trust therein referred to, the trustees were directed to pay certain sums to the incumbents and churchwardens of the several parishes of Ipswich, to provide for weekly distributions of bread for the poor; and subject thereto, upon trust to stand possessed thereof in trust to pay to Jeremiah Head, John Biddle Alexander, Simon Batley Jackaman and William Henry Alexander, and the survivors, and to the incumbent of St. Mary-at-the-Key, in Ipswich, and four of the trustees of a charity called Tooley's Charity, all the dividends of the above sum of stock, upon trust that the last-mentioned persons, and after the decease of the four first-named, then that the said incumbent and all the trustees of Tooley's Charity should distribute the same weekly among the poor of Ipswich. [528] On the day of the date of these two deeds, Benjamin Brame executed his will, whereby, after making certain devises and bequests, and giving charitable legacies out of such part of his personal estate as should not consist of chattels real, he appointed Jeremiah Head, John Biddle Alexander and Simon Batley Jackaman his executors, and gave each of them a legacy of 50 as a small remuneration for their trouble in the execution of his will and other trusts which he had reposed in them. By a codicil dated 20th November 1848, the testator appointed T. B. Ross an executor in the place of Jeremiah Head, and directed that he should be a trustee, with the other trustees, in the execution and management of the charitable trusts created by a deed executed for that purpose. Neither the will nor the codicil contained any residuary bequest. On the testator's death, which took place on the 21st July 1851, the two deeds, together with the will and codicil, were found in an envelope, with the following memorandum in the testator's handwriting, and signed with his initials, and indorsed as follows in the testator's handwriting :-" Enclosed are the two deeds respecting the disposition of my property, and my will. 12th August 1846 ":-"It will be seen that the drafts of the two deeds of covenant are prepared by Mr. Earn. There will 7DEO. M.40.B8. ALEXANDER V. BRAME 207 not be so much as 60,000 to invest, I calculate about 50,000, but he recommended a larger sum to be inserted than would be the amount of the assets, which would carry the principal monies after the annuities had ceased, as also the residue (if any) over and above what I have given by will. The object of the deeds of covenant was to save the large sum which would otherwise have to be paid for legacy duties, and it was apprehended that if any part had to pay probate duty in the first instance, the [529] duty might be got back again in consequence of the deeds of covenant creating a debt to be paid out of the assets. Mr. Ram considered that, although the covenant is to place out in the three per cents, a sufficient sum to pay the annuities, yet there would be no objection to let a sufficient sum remain of the mortgages for those purposes, from which better interest could be obtained than buying into the funds. It is my wish that J. Legger, my late servant, and J. Purssey may be placed as recipients for the 7s. a week. B. B. llth August 1846." The value of Mr. Branie's personal estate at his death was about 70,000, and the value of the portion of it, consisting of pure personalty, was not more than 20,000. The Master of the Rolls held, that the first deed was valid, and created a debt against the testator's estate for the several sums covenanted to be paid and invested, but His Honour directed an action to be brought by the Plaintiffs to try the validity at law of the second deed. The case is reported in the nineteenth volume of Mr. Beavan's Reports (page 436). From this decision the next of kin appealed, and the appeal now came on to be heard before the Lords Justices, assisted by Mr. Justice Wightman and Mr. Justice Erie. Sir Fitzroy Kelly, Mr. Elmsley and Mr. Speed, in support of the appeal. First, this instrument, not a deed, but a will. Being testamentary, it is inoperative, as it. is not duly attested. Secondly, if the Court should be against us on this point, [630] still the instrument, as a deed, is void for want of enrolment, according to the Mortmain Act. They referred...
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