Attorney General, at the Relation of James Bernard, Clerk, and Others v Mary Hamilton and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 February 1816 |
| Date | 01 February 1816 |
| Court | High Court of Chancery |
English Reports Citation: 56 E.R. 80
COURT OF THE VICE-CHANCELLOR OF ENGLAND
See In re Frith and Osborne, 1876, 3 Ch. D. 624.
80 ATTORNEY-GENERAL V. HAMILTON 1MADD. 2K [214] attorney-general, at the Eelation of James Bernard, Clerk, and others v. mary hamilton and others. Feb. 1, 1816. [See In re. Frith and Osbarne, 1876, 3 Ch. D. 624.] There being on a bill for a partition, infant cextuis que trust Defendants, conveyance respited until they attain twenty-one. Remble, a power to exchange does not warrant a partition. In this case an information was filed by the relators, who were the trustees of a charity estate, for the purpose of effecting a partition of certain estates, of which they were seised, in certain proportions, with the family of the Carews. By the decree made on the hearing of the cause on the 7th of February 1814, it was referred to the Master to inquire, what were the several shares and interests of the several relators and Defendants in the premises in the pleadings mentioned. The Master, by his report, dated 19th August 1814, certified that the relators were, as such trustees as aforesaid, seised of or well entitled to all those undivided parts or shares of and in the several hereditaments and premises which he had thereinbefore set forth; and that the remaining undivided parts thereof stood settled upon the trusts and for the uses, intents and purposes expressed and referred to by a certain indenture of release, dated the 2d of July 1813. The cause came on to be heard for further directions on this report, before His Honor the Vice-Chancellor, on the 26th of August 1814, who decreed that a commission of partition should issue, to divide the estates in [215] question between the relators and Defendants, according to their respective shares and interests, as ascertained by the Master's report, and "that the parties do execute mutual conveyances of the premises to each other, such conveyances to be settled by the Master," &c. In pursuance of this decree, a commission of partition was sued out, executed, and returned. The commissioner's certificate was afterwards duly confirmed, and the draft of a conveyance left in the Master's office. The Master was of opinion the Defendants, the trustees, had no power to make a partition; and that it was necessary their cestuis que trust, who were infants, should be made parties, and the conveyances respited till they were of age. To obviate this objection, as the decree on further directions was not drawn up, a motion was made to vary the minutes of the decree by adding to the directions respecting mutual conveyances the words " without making the infants Defendants, who are interested in the said estates and premises, or any of them, parties to such conveyance, with the usual directions for appointing a day or days for the infants, as they respectively attain twenty-one, to shew cause against the decree ;" and to warrant this alteration, it was contended that the trustees, under the power to exchange, might make a partition. The deed, in which the power to exchange was given, was an indenture of five parts, bearing date 8th December 1795, and made [216] between the Rev. George Warrington, clerk, and Mary his wife, of the first part; George Henry Carew, then called George Henry Warrington, of the second part; Daniel Hamilton and Mary his wife, of the third part; said Mary Carew, the daughter, then Mary Carew, spinster, now the wife of said George Henry Carew, of the fourth part; and James Bernard, deceased, and Francis Webber, of the fifth part; being in the nature of a deed of covenant, or articles of agreement for a settlement made and entered into previous to the marriage then intended, and soon after solemnized, between the said George Henry Carew and Mary his wife. After therein taking notice that a marriage was then intended, and which was shortly afterwards had and solemnized, between the said George Henry Carew, then called George Henry Warrington, and said Mary Carew his now wife; and that said Mary Carew was by virtue of an indenture of 3d February 1766 entitled to such share and for such an estate as her said mother should think fit to appoint to her, or in default of such appointment, to one moiety of an estate in tail, of and in certain hereditaments situate in the counties of Devon and Somerset, expectant on the death of her said mother, to 1 MADD. 217. ATTORNEY-GENERAL V...
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...The cases of Abel v. Heathcote (2 Ves. jun. 100 ; 4 Bro. G. C. 278); M'Queen v. Faryuhar (11 Ves. 467); and Attorney-General v. Hamilton (1 Madd. 214), have reference to the doctrine of uses and to legal powers, shifting, by their due execution, the legal estate. Here there is no such quest......
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