Attorney General v Jones & Bartlett
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1812 |
| Date | 01 January 1812 |
| Court | Exchequer |
English Reports Citation: 146 E.R. 291
IN THE COURT OF EXCHEQUER
Questioned, Thompson v. Browne, 1835, 3 My. & K. 35; Brown v. Advocate-General, 1852, 1 Macq. H. L. 85; Jeffries v. Alexander, 1860, 8 H. L. C. 594. See in the Goods of Hobinson, 1867, L. R. 1P. & D. 387.
the, attorney general . jonks & bartlett. [Same day]. -If a man give, by deed, his leasehold and personal property to trustees, for the use of himself for life, and of several persons therein named at his death, with a power of revocation reserved,-never having parted with the doed or with any part of the property during his life,-and confirming, in most respects, such disposition of it by will at his death ; those two instruments will be considered as to be taken and construed together as testamentary instruments, and the property passing under them will pass as legacies, and be subject to duty.-Wood, B. dissentiente. [Questioned, Tmnpxon v. Browne, 1835, 3 My. & K. 35 ; Brown v, Advocate-General, 1852, I Macq. H. L. 85; Jeffrie* v. Alemndn; I860, 8 H. L. C. 594. See In the Goods of Hobinson, 18G7, L. K. 1 P. & D. 387.] This was an information filed for the recovery of the sum of 8001. for legacy duties, under the 48 G-eo. III. ch. 149 ; charged to be payable on a legacy of 80001. bequeathed to Ellen Franklin, a stranger iti blood to the testator. A verdict was taken for the Crown on the trial, subject to the opinion of the Court on the following facts found by a special verdict. By a certain indenture, bearing date the 25th day of March, in the year of our Lord 1813, and made between William Franklin, Esq. of the one part, [369] and the said Thomas Jones and Patrick Bartlett, the present defendants, of the other part, it was witnessed, that in consideration of l()s. to him paid, he the said William Franklin did bargain, sell, assign, transfer and set over unto the defendants, their executors, administrators and assigns, all that messuage or tenement of him the said William Franklin, situate in Norton-street, in which he then resided, with the garden and appurtenances, to hold the said messuage or tenement, with the appurtenances, unto the defendants, their executors, administrators and assigns, for the residue of the term he: had therein, upon the trusts, and to and for the ends, intents and purposes, and subject to the provisoes thereinafter declared concerning the same; and for the considerations of the said William Franklin, did bargain, sell, assign, transfer and set over unto the defendants, their executors, administrators, and assigns, all the 75001. government stock, in the five per cent, annuities, and all other stocks or funds standing in the name of the said William Franklin, or belonging to him, in the books of the governor and company of the Bank of England, and also all the dividends which might be, due thereon at the time of his decease, and all arrears of any pension or pensions which might be then due to the said William Franklin, payable to him by the Government of Great Britain or otherwise, and all books, plate, household furniture, linen, china, glass, and pictures, and all other personal estate whatsoever then belonging to him the said William Franklin, or which should belong to him at the time of his decease, to hold unto the [370] defendants, and the survivor of them, his executors, administrators, and assigns ; nevertheless, upon the trusts, and subject to the proviso or provisoes, aad for the intent and purposes thereinafter expressed and declared of and concerning the same ; and it was thereby declared, by and between the said parties to the said indenture, that the said defendants, and the survivor of them, and the executors, administrators, arid assigns of such survivor, should stand possessed of all the before-njentioned leasehold premises, and the said 75001. five per cent, annuities, and all the other stocks or funds in the name or on the account of the said William Franklin, in the books ol the governor and company of the Bank of England, and also of all the other personal estate whatsoever of the said William Franklin, upon the trusts thereinafter declared concerning the same; (that is to say,) upon trust for the use, benefit, and advantage of the said William Franklin, for aud during the term of his natural life ; and from and immediately after his decease, upon trust, that the defendants, and the survivor of them, should receive the rent and proceeds of the said messuage, or tenement, and pz'emises, and the interest, dividends, and profits of the said stocks or funds, and apply the same, or so much thereof as they in their discretion should 292 THE ATTORNEY GENERAL ?'. JONES 3 PRICE, 371. think necessary, for the maintenance and education of Helena, commonly called Ellen Frankliti, who was horn on or about the 7th day of April, in the year of our Lord 1798, until she should have attained the age of 21 years, or be married with the consent in writing of the defendants, or one of them ; and from and [371] immediately after the said Helena, otherwise Ellen I|1ranklin, should attain her said age of 21 years, or be married as aforesaid, then upon trust, that they the defendants, and the survivor of them, should assign the said leasehold premises, and transfer the said stocks and funds, unto her the said Helena, otherwise Ellen Franklin, or stand possessed thereof, and of the said books, plate, household furniture, linen, china, glass and pictures, and all other the personal estate of the said William Franklin, of what nature or kind soever, or wheresoever, in trust, for her the said Helena, otherwise Ellen Franklin, her executors, administrators and assigns, for her and their own use and benefit; and upon further trust, that the said defendants, and the survivor of them, and the executors, administrators and assigns of such survivor, should from time to time lay out and invest the surplus of the interest, dividends, or produce, arising from the messuage and respective funds aforesaid, and from the residue of the said personal estate of the said William Franklin, after applying a sufficient part for the maintenance, education, and support of the said Helena, otherwise Ellen Franklin, as aforesaid, on government or real security, to accumulate for the benefit of the said Helena, otherwise Ellen Franklin ; such accumulations to be liable to the like contingencies, and as was before directed respecting the said messuage, stocks, funds or premises, out of which the said accumulations would arise. And the said indenture contained a proviso, that it should be lawful for the said William Franklin, at any time or times during his life, by any deed or writ-[372Jing under his hand and seal, or by his last will and testament in writing, or by any codicil or codicils to such will, to be duly executed, to revoke or make void, alter or change, all or. any of the respective trust or trusts in and by the said indenture limited or appointed of the said messuage or tenement, with the appurtenances, stocks or funds, dividends, arrears of pension, books, plate, household furniture, linen, china, glass, and pictures, and all other personal estate whatsoever, so assigned by the said William Frankin as aforesaid. And the said indenture contained powers for the said defendants to appoint other trustees, in case they should refuse or decline to act, and to reimburse themselves their expenses; and also a clause of indemnity against such other acts. Alter the execution of the above-mentioned indenture, the said William Franklin, by his will, bearing date the 15th day of April, in the year of our Lord 1813, and duly executed, reciting the before mentioned indenture, and the povvor therein contained for revoking or altering the same, did, by his said will, confirm the said deed in all respects, except where the same was altered by that his will; and he thereby directed that his funeral expenses, the expense of proving his will, and all his just debts, should be defrayed and paid out of the money which should belong to him, and be in his possession, in his dwelling-house, or in the hands of his banker, or the dividends due from the public funds, or the arrears of his pension or allowance from government, at the time of his decease; but in case such money should not prove sufficient for the said purposes, then his executors [373] were to discharge the same by sale or transfer of three per cent, consols, or three per cent, reduced, belonging to him in the public funds, or such parts thereof as might be necessary for the before-named purposes, and for discharging the legacies thereafter by him bequeathed. The said William Franklin did then, by his said will, give several legacies in stock arid money, to the amount of some hundred pounds, and appointed the defendants his executors, with the usual powers and indemnities. The said William Franklin died on or about tlie 18th day of November 1813, without altering or revoking his said will; and the said defendants proved the said will of the said William Franklin, in the Prerogative; Court of the Archbishop of Canterbury, on the 15th April 1814, and have: taken up0n themselves the burthen of the execution thereof. At the time of the death of the said William Franklin, the said leasehold messuage or tenement, with the appurtenances, in the said indenture and will mentioned, remained in the possession of the said William Franklin, together with all the books, plate, household furniture, china, glass, pictures, and effects, mentioned and comprised in the said indenture ; and the sum of 74001. rive per cent, annuities, stated in the said indenture to be 75001. were, at the time of the death of the said William Kranklin, standing in the name of him the said William bYanklin, in the hooks of the Governor and Company 3 PRICE, 374. THE ATTORNKY GENERAL r. JONES 293 of the Bunk oE England, and had not been, nor were at the time of the death of the said William...
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