Audsley v Horn
| Jurisdiction | England & Wales |
| Judgment Date | 17 December 1859 |
| Date | 17 December 1859 |
| Court | High Court of Chancery |
English Reports Citation: 175 E.R. 660
QUEEN'S BENCH, COMMON PLEAS AND EXCHEQUER
See Audsley v. Horn, 1858-9, 26 Beav. 195, 1 De. G. G. & J. 226.
March 26th, 1858. audsley v. horn. (A deed, of assignment, by way of mortgage, duly acknowledged by a married woman under the statute 3 Will. 4, c 71, is sufficient evidence against her in an ejectment by mortgagee, after her husband's death, although by the recitals it appears that she had only a life interest in a term, and the deed purported to convey the whole; notwithstanding that the objections are taken that it is void as regards her, being a conveyance by a married woman of a chattel interest, or that it is invalid as purporting to convey the whole interest in the term, and that, therefore, it is no estoppel upon her ) [See Audsley v. Horn, 1858-9, 26 Beav. 195 , 1 De G F. & J. 226.] Ejectment by mortgagee against termor. Lush and Francis, for the plaintiff, put in the mortgage, which had been executed by the defendant and her husband (since deceased), and which bore the memorandum of her acknowledgment of concurrence as a married woman, made before a Judge, under the statute 3 Will. 4, c. 71. The deed recited that the defendant was entitled to a life interest in the term, remainder to her children, and it purported to assign the whole term. Raymond, for the defendant, objected that the recitals were no estoppel as against her, so that evidence of her interest was required, and that the assignment did not bind [136] her, because it was void, it being of a chattel interest, and also because it proposed to pass the whole term Erie, J., overruled the objections, and directed a verdict for the plaintiff
English Reports Citation: 45 E.R. 345
BEFORE THE LORD CHANCELLOR LORD CAMPBELL.
S. C. 26 Beav. 195; 29 L. J. Ch. 201; 7 W. R. 125; 8 W. R. 150. See Newill v. Newill, 1871, L. R. 12 Eq. 436; In re Adam's Policy Trusts, 1883, 23 Ch. D. 529.
[226] audsley v. horn. Before the Lord Chancellor Lord Campbell. Dec. .6, 7, 17, 1859. [S. C. 26 Beav. 195; 29 L. J. Ch. 201; 7 W. R. 125; 8 W. E. 150. See Newill v. Neivill, 1871, L. R. 12 Eq. 436; In re Adam's Policy Trusts, 1883, 23 Ch. D. 529.] The rule in Wild's ease, 6 Rep. 17, is not applicable to personal estate. Personalty was bequeathed to the testator's daughter during her life, and at her death to her daughter and to the granddaughter's children, but if they should die without issue, then over. The granddaughter was unmarried at the dates of the will and of the testator's death, and had no child till after the death of the testator's daughter. Held, that the granddaughter took a life interest in the subject-matter of the bequest, with remainder to her children. This was the appeal of the Plaintiffs from the decision of the Master of the Rolls (in a foreclosure suit), that under the will of Thomas Hansard, Amelia Horn, his grandchild, took only an interest for life in the leasehold property which was the subject of the mortgage, and from the decree for foreclosure, so far as it excluded the costs of the evidence gone into by the Plaintiffs. The following is a summary of the facts of the case, which are fully stated in the report of the hearing at the Rolls, in the 26th Volume of Mr. Beavan's Reports (page 195). By the will in question, dated the 18th August 1818, [227] the testator, after giving a life interest in all his property to his wife, bequeathed as follows:- "At the death of my wife I leave Hansard Place, Blackfriars Road, to my daughter Mary Rossiter, during her life; and, at her death, to her daughter Amelia Rosaiter, and Amelia Rossiter's children ; but if they should die without issue, in that case the property to be divided between William Hansard, John Tuttle, and John Leary and Maria Leary." The testator held the house and premises described in the will as Hansard Place, Blackfriars, under a lease from the 24th June 1803, for the term of ninety-five yeari He died on the 6th February 1819. On the 1st July 1834 Amelia Eossiter intermarried with Joseph Horn, by whom she had six children, all of whom were born after the 9th of January 1835, the day of the death of Mary Rossiter, and were still infante. In December 1843 Joseph Horn and Amelia his wife assigned the leasehold premises in question, for the residue of the term of ninety-five years therein, to John Audsley, by way of mortgage to secure £220 and interest. ; John Audsley died in February 1849, and on the 24th March 1852 Joseph Horn and Amelia, his wife, executed an indenture of further charge of the leasehold premises to the Plaintiffs, the personal representatives of John Audsley, to secure a further sum of £198, 5s. Joseph Horn died on the 17th April 1857. The original bill was filed on the 1st January 1858, against Amelia Horn as sole Defendant, seeking the [228] common decree of foreclosure. Amelia Horn, in her answer, after admitting the mortgage and further charge, submitted that she was only entitled to a life interest in the mortgaged premises under the testator's will, and that her children would become entitled, on her death, to the property ; and she stated that they claimed to be entitled to the property, subject to her life interest therein. The Plaintiffs then amended their bill by making the infant children of Amelia Horn parties, and by praying a declaration that Amelia Horn, or Joseph Horn in her right, was absolutely entitled under the will of her grandfather to the premises comprised in the Plaintiffs' securities, and that the infant Defendants had no estate, right, title or interest therein. 346 AUDSLEY V. HORN 1DE 0. F. fc J. 229. The Master of the Rolls, by the decree appealed against, dated the 6th December 1858, after declaring that Amelia Horn took a life interest only in the premises in mortgage to the Plaintiffs, made the common decree for foreclosure of her life interest therein, excluding from the decree the costs of the evidence gone into by the Plaintiffs, and dismissed the bill with costs, as against the infant Defendant. Mr. Roundell Palmer and Mr. Cory, for the Plaintiffs, in support of the appeal. It is submitted ;that Amelia Horn took an absolute interest in the mortgaged premises under the will of her grandfather. The terms of the bequest thereof, "to her and to her children, but if they should die without issue, then over," are such as would have given her an estate tail in land; Wild's case (6 Rep. 17); and they therefore vest in [229] her an absolute interest in personal estate ; Howston v. Ives. (2 Eden, 216); Lym v. Michell (1 Madd. 467); Ghandless v. Price (3 Ves. 99). The words, "but if they should die without issue," indicate an intention that the subject-matter of the gift should go in regular course of devolution until the exhaustion of heirs of the body. There is every reason, therefore, why Wild's case. (6 Rep. 17), should be held to apply ; Ex parte ffynch's (1 Sm. & G. 427; S. C. 5 De G. M. & G. 188). It has never been decided that Wild's case (6 Rep. 17) is inapplicable to personal estate, and there is no reasonable ground for not so applying it. Upon a question of construction, the decision ought not to be affected by the nature of the subject bequeathed, but the intention expressed by the testator is alone to be regarded. Here the context of the will shews that the absolute gift over is not meant to take effect except on a general failure of issue of Amelia Rossiter, and to carry out that intention, Wild's ease (6 Rep. 17), ought to be applied; Duke v. Lacy (8 Beav. 214); Cape v. Cape (2 Y. & C. Exch. 543). Lord Hardwicke, in Bnffar v. Bradford (2 Atk. 220), and Lord St. Leonards, in Stokes v. Heron (2 Dru. & W. 89 ; S. C. 12 Cl. & Fin. 161...
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