Algernon Greville, - Appellant; Anne Browne, - Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 29 July 1859 |
| Date | 29 July 1859 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 275
House of Lords
Mews' Dig. vi. 1284; x. 1625; xv. 1640, 1642. S.C. 5 Jur. N.S. 849; 7 W.R. 673. On point as to legacies, discussed and distinguished per Rigby L.J. in dissenting judgment in In re Grainger, 1900, 69 LJ.Ch. 789, at pp. 793, 794; and cf. Browning v. French, 1871, 24 L.T. 649; Skiller v. Haisman, 1871, 24 L.T. 745; Bray v. Stevens, 1879, 12 Ch.D. 166; Elliott v. Dearsley, 1879-80, 16 Ch.D. 326.
Will - Real Estate, Charge on - Legacies - Power to Sell.
GREVILLE V. BROWNE [1859] VII H.L.C., 690 ALGERNON GREVILLE,-Appellant; ANNE BROWNE,-Respondent [July 28, 29, 1859]. [Mews' Dig. vi. 1284; x. 1625; xv. 1640, 1642. S.C. 5 Jur. N.S. 849; 7 W.R. 673. On point as to legacies, discussed and distinguished per Rigby L.J. in dissenting judgment in In re Grainger, 1900, 69 LJ.Ch. 789, at pp. 793, 794; and of. Browning v. French, 1871, 24 L.T. 649; Skitter v. Haisman, 1871, 24 L.T. 745; Bray v. Stevens, 1879, 12 Ch.D. 166; Elliott v.Dearsley, 1879-80, 16 Ch.D. 326.] Will-Real Estate, Charge on-Legacies-Power to Sell. If there are general gifts of legacies, and then of the rest and residue, real and personal, blending the whole in one mass, (though accompanied by a power to the legatee of the residue, " to dispose of the same in any manner he may think proper "), the legacies are a charge on the realty (dub. Lord Wensley-dale). A testator gave a legacy, which, if not received, was to form " part of the residue of my property." Then followed a legacy to A. B.; but if the legatee should die before time for payment, it was to be considered " as part of the residue of my property, and to go and merge in the same." After some legacies, his will concluded, " All the rest, residue, and remainder of any property I may die possessed of, whether estates, freeholds, etc. etc., bonds, bills, etc., annuities, etc., I devise and bequeath to my son, in the fullest manner I can, with liberty to dispose of the same in any manner he may think proper." The son was named as one of the executors, but did not act as such. The will was proved by the other executor. The son mortgaged the real estates: Held, that the legacy to A. B. was a charge on the real estates, and [690] on a sale of them in the Incumbered Estates Court, took precedence over the mortgages, notwithstanding the general power to the devisee to dispose of the estates in any manner he thought proper. This was an appeal against a decision of the Lord Chancellor and Lord Justice Blackburne, sitting as Commissioners of Appeal, from the judgment of the Incumbered Estates Court. John Browne, of Galway, had one son, Michael J. Browne, and two daughters, Maria (Lady Ff rench), and the Respondent. By his will (which contained many interlineations), dated 20th January 1825, he bequeathed to his wife an annuity of £100 in addition to what she was entitled to under her marriage settlement, " the same to be in lieu and satisfaction of any dower or thirds she may be entitled to out of my real estates, or any other property I may die possessed of," with the usual power of distress. Then followed a bequest of the houshold furniture to his wife; then a sum of £1000, in trust, to give such part of it as she might think fit to his daughter Anne on her marriage with her mother's consent, " to* bear no interest till then; the entire (whole) or the remainder of the said sum of £1000 to go- and be considered as part of the residue of any property as hereafter bequeathed to my first object on earth, my best of sons, Michael Joseph Browne. I farther bequeath to my dear and very dear daughter Anne Browne, in addition to any part of the above recited sum of £1000, a farther or additional sum of £5000 sterling, including the property already settled on her by my marriage articles; and also the value of the property made over for her use before, all payable on her marriage with the consent of her mother, the interest thereof, at five per cent., to be regularly paid till then. But should my said daughter Anne Browne die before her marriage, then my [691] will is that this bequest shall be considered as part of the residue of my property, and go and merge in same." To his daughter Lady Ffrench (to whom he had given as a portion £10,000) and to her husband and children, and to his own sister Julia he left £5 a piece, and concluded thus: " As to all the rest, residue and remainder of any property I may die possessed of, or entitled to, of what nature soever, whether estates, freehold leases, leases for years, stocks of every kind, also bills, bonds, notes, annuities, or otherwise, I hereby bequeath, devise, give, and grant the same to my first object on earth, my son, Michael Joseph Browne, in the fullest manner I can or shall have it in my power, with liberty to him to dispose of the same in any manner he may 275 VII H.L.C., 692 GREVILLE V. BROWNE [1859] think proper," and he appointed his son his sole executor. By a codicil he appointed John Kirwan his executor in case his son should not wish to act as one of the executors. The testator died in 1825, and the son having declined to act as executor, the will was proved by Kirwan. Michael Joseph Browne, the son, entered into possession of the estates, and paid the interest on the legacy of £5000 to his sister down to 1842. On the 1st September 1846 he mortgaged the estates to the Appellant and other persons. On the 29th May 1852 a petition for sale was presented in the Incumbered Estates Court, and an absolute order for sale was made on the 8th September 1852. On the 4th December 1855 the estates were sold for a sum of £69,410, a sum not sufficient to pay off the mortgages and interest then due. On the settling of the final schedule on the 15th December 1856, Mr. Commissioner Longfield held, that the Respondent, Anne Browne, was entitled to be paid the legacies bequeathed to her by the will of her father in priority to the mortgagees. The full Court confirmed this decision, and on appeal to the Lord Chancellor and Lord [692] Justice Blackburne in the Court of Appeal, it was again affirmed. The present appeal was then brought. The Attorney-General (Sir R. Bethell) and Mr. Moxon for the Appellant.-There is no necessary implication here to make these legacies a charge upon the land. The words may be satisfied by taking the residue of the personal estate, the rest of the testator's property. It is admitted that the Courts have sometimes shown a tendency to charge liabilities of this kind on land; first, debts were charged, and now the attempt is made to charge legacies; but that cannot be done in a case like the present, where the intention to create such a charge is not clearly expressed. There is no settled rule on the subject which can be appealed to as justifying the decision of the Court below. The chief cases are all the other way. The first is that of Davis v. Gardiner (2 P. Wms. 187), where the personal estate not being sufficient to1 pay all the charges, the deficiency was held not to be chargeable on the land. The words were, " As to my...
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