Attorney General v The Marquis of Hertford

JurisdictionEngland & Wales
Judgment Date03 May 1849
Date03 May 1849
CourtExchequer

English Reports Citation: 154 E.R. 1014

IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER

The Attorney-General
and
The Marquis of Hertford

S C 18 L J Ex 332 Applied, Attomey-General v Theobald, 1890, 24 Q B D 557

[6tO] the attorney-general v the marquis of hertford May '), 181!) -A , by deed dated in 1802, conveyed ceitarn lands to trustees, to the use of himself for life, remainder to B his son for life, lemamder to the defendant hib grandson for life, with remainders over The deed provided, that it should be lawful foi the defendant and the survivoi of A and B to declare any new uses of the lands A died in June 1822, and by indenture of appointment of October, 1822, B and the defendant declared that it should be lawful for B by deed ot will to charge the lands with the payment of any sum not exceeding 47,0001 In 1823, B by his will charged the lands with piyment to his, executors of 47,0001, to be applied in payment of his debts, &c , and the residue m trust foi the defen dant B died in 1842, and in 1847 his executois raised 11,'2591 lls 8d, part of the 47,0001, and paid it to the defendant, the debts ha"ing been previously paid -Held, that this was a gift by will, within the 8 & 9 Viet c 7fo, although it operated oiiginally by virtue of a power , aird thit legacy duty was chargeable on the sum of 11,2591 lls 8cl, it not havrng been paid to the defendant until after that Act came into opeiation, notwithstanding the testator died before [S C 18 L J Ex 3.32 Apphed, Attmney-Geneial v Theobald, 1890, 24 Q B D 557 ] Information by the Attorney-General for legacy duty The defendant pleaded the general issue, and the cause came on for trial before Pollock, C B , at the 3 EX.671. THE ATTORNEY-GENERAL, V. MARQUIS OF HERTFORD 1015 Middlesex Sittings after Hilary Term, 1849, when a special verdict was found by consent, the material part of which is as follows :- LSy indenture of release, dated the 2nd of October, 1802, (founded on a bargain and sale for a year, dated the day next before the date of the said indenture), made between Francis, the then Marquis of Hertford, of the first part, Francis Charles, Earl of Yarmouth, the eldest son and heir apparent of the said Francis, Marquis of Hertford, of the second part, and certain trustees of the third and fourth parts, and duly executed hy the said parties of the first and second parts, divers lands, hereditaments, and premises, particularly mentioned and described in the said indenture, and situate in the counties of Warwick and Suffolk, were, amongst other hereditaments, for the considerations therein mentioned, granted, bargained, sold, released and confirmed by the said first-mentioned Francis, Marquis of Hertford, and by the said Francis Charles, Earl of Yarmouth, unto the said trustees of the third part, to the uses in the indenture limited, that is to say, to the use of the said first-mentioned Francis, Marquis of Hertford, for and during the term of his natural life, and from and after hia decease to the use of the said Francis Charles, Earl of Yarmouth (the testator), for arid during the term of his natural life, arid from and after his decease, to the use of Seymour Conway, Viscount Beau-[671]-champ, eldest son and heir apparent of the said Francis Charles, Earl of Yarmouth, for and during the term of his natural life, and after his decease to his first and other sons in tail male, with ultimate remainder in fee to the said first-mentioned Francis, Marquis of Hertford. It was in and by the said indenture declared, that if either the said Francis, then Marquis of Hertford, and Francis Charles, Earl of Yarmouth, should die in the lifetime of the said K. Seymour Conway, and if E. Seymour Conway should attain the age of twenty-one years, then it should be lawful for R. Seymour Conway and the survivor of them the said Francis, then Marquis of Hertford, and the said Francis Charles, Earl of Yarmouth, at any time during their joint lives, by any deed duly executed hy the said K. Seymour Conway, and such survivor of them the said Francis, Marquis of Hertford, and Francis Charles, Earl of Yarmouth, to revoke and alter the uses, and declare new uses of the estates. The said Francis, Marquis of Hertford, on the 17th of June, 1822, died, upon whose death the said Francis Charles, Earl of Yarmouth, his eldest son, then became and was Marquis of Hertford, and the said R. Seymour Conway then became and was Earl of Yarmouth, and the said Francis Charles, Marquis of Hertford, then and under aud by virtue of the said indenture of release, and the limitations therein contained, entered upon the said lands, and became and was seised thereof in fee for the term of his life, and remained so seised until his death. Before the making of the indenture of appointment hereinafter mentioned, to wit, on the -22nd day of February, 1821, the said! R. Seymour Conway attained the age of twenty-one years. By indenture of appointment, dated the 18th of October, 1822, made between the said Francis Charles, then Marquis of Hertford, of the one part, and the said It. Seymour Conway, then Earl of Yarmouth, of the other [672J part, they, in execution of the joint power of revocation and appointment of new uses, did limit and appoint, that it should be lawful lor the said Francis Charles, by any deed or instrument in writing, to be sealed aud delivered by him in the presence of and attested by two or more credible witnesses, or by the last will and testament of him the said Francis Charles, or by any codicil or codicils thereto, to charge the lands, hereditaments, and premises, by the first-mentioned indentures of release limited and assured, or any part or parts thereof, with the payment of any sum or sums of money not exceeding 47,0001., for his owti use, or for any other purpose, and for securing the same with lawful interest. On the 25th of February, 1823, the said Francis Charles, then Marquis of Hertford, by his last will and testament, duly executed and attested, "did in pursuance aud by virtue (jf the said power in that behalf given to and vested in him, subject and charge all andisingular the lands, hereditaments, and premises by the indenture of the 2nd of October, 1802, limited and assured as therein mentioned, and their and every of their rights, members, and appurtenances, with the payment to his the said Francis Charles' executors, of the principal sum of 47,0001., together with interest for the same at the rate of 51. per cent, from the day of his decease, the said sum of 47,0001. and interest to be applied by his executors as hereinafter mentioned to have been directed in regard to his residuary personal estate by the said last will and testament bequeathed, except so far as regards the bequest to the commissioners for the time 1016 THE ATTORNEY-GENERAL V MARQUIS OF HERTFORD 3 EX. 673 being, appointed for the t eduction of the national debt, in the event of his son the said R Seymour Con way neglecting or lefusmg to comply with the directions imposed on him bv the said will, it being thereby declared to be the intention of the said testator Francis Charles, and he thereby declared, that, in such event, the [673] said spm of 47,0001 , or so much theieof as should not be applied in and towards the pa(-nlent of his debts, legacies, annuities, and funeial expenses, should be in trust fot his next of km " And for further securing the sairl sum of 47,0001, charged on the said kinds, the said Francis Charles limited arid appointed the said lands to his executes for a term of 500 yeais The said Francis Charles, then Maiquis of Hertford, died orr the 1st March, 184'J, without revoking or altering his said will On the IGth October, 1S47, the executors did, under and by virtue and in pursuance and execution of the said last will and testament ot the said irancis Charles, and the powers so vested in them for that purpose, levy and inise the sum of 11,2591 18s lid , parcel of the sum of 47,0001 so directed to be levied and laised as aforesaid, in part satisfaction and discharge of the said sum of 47,0001 , and to the intent that the same might be applied in part...

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6 cases
  • Mullins v Harnett
    • Ireland
    • High Court
    • 1 April 1998
    ...and a number of cases were cited including Gloucester Union -v- Woolwich Union 1917 2KB 374; Attorney General -v- Marquess of Hartford (1849) 3 Exch 670; Hitchcock -v- Way 1837 6AD and EL 973; in re McLoughlin's application 1963 IR Page 465. R. (O'Learv) -v- Justices of Kerry 3NIJR 251, in ......
  • Mabo v Queensland (No 1)
    • Australia
    • High Court
    • 8 December 1988
    ...the declaration applies occurred prior to the enactment of the statute: Attorney-General v Marquis of HertfordENR (1849) 3 Ex 670 at 6889; 154 ER 1014 at 1022; Attorney-General v TheobaldELR (1890) 24 QBD 557. The statute does not, however, affect final judgments already given pursuant to t......
  • Murray v Commissioners of Inland Revenue
    • United Kingdom
    • House of Lords
    • 6 May 1918
    ...question of the retrospective effect of amending statutes the following cases were cited,—Attorney-General v. Marquis of HertfordENR, (1849) 3 Ex. 670; Attorney-General v. TheobaldELR, (1890) 24 Q. B. D. 1 Finance Act, 1917 (7 and 8 Geo. V. cap. 31), sec. 21. ...
  • Principal Immigration Officer v Purshotam
    • South Africa
    • Invalid date
    ...retrospective effect. See Maxwell on Statutes (p. 333); Jones v Bennett (63 L.T. 705 at p. 708); Attorney-General v Marquis of Hertford (154 E.R. 1014 at p. The Act relates only to procedure; sec. 5 of Act 37 of 1927 makes no change in the substantive law, as sec. 10 of Act 2 of 1907 and se......
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