Bailey v Lloyd

JurisdictionEngland & Wales
Judgment Date05 February 1829
Date05 February 1829
CourtHigh Court of Chancery

English Reports Citation: 38 E.R. 1051



S. C. 7 L. J. Ch. 98. Maunsell v. Maunsell, 1871, 24 L. T. 699; In re Denton, 1890, 63 L. T. 106.

[330] bailey v. lloyd. Feb. 5, 18li9. '}'ò [!ò . C. 7 L. J. Ch. CJ8. Maunsell v. Maunsell, 1871, '24: L. T. 6'J'J ; In re Denton, 1890, 63 L. T. 100.] In 1779, S. L., in contemplation of his marriage with A. V., covenanted for the payment of £3000 within three months after his decease, for the benefit of the children of the marriage; in 1815, upon the marriage of Emma, one of his daughters by A. V., he executed a deed, which recited that it had been agreed, that by way of additional portion for Emma, he should enter into a covenant, that she should have an equal share at least with his other children, of the real and personal estate which he shoiild be entitled to at his decease, after payment of his debts ; and that any money or other estate and effects which any of the children might receive in the lifetime of ti. L., or might become entitled to under or by virtue of any gift or disposition by will or otherwise, made or to be made by A. V., the mother, or otherwise howsoever under her, should be deemed an advancement within the meaning of the indenture. This recital was followed by a covenant, that his heirs, &c., should within three months after his death convey to the trustees of Emma's settlement a share of his real and personal estate, equal to the share which .any other of his children should have had or be entitled to ; and afterwards came a proviso, that any money and other estate and effects which might afterwards be conveyed or advanced by S. L. to any of his children, and also that certain copyholds, of which A. V. was tenant in tail, whose interest, it was stated, was forthwith intended to be barred, and further, that any money, or other estate and effects, which any of the children might receive by the gift, bequest, or other disposition by will or otherwise of A. V. or under the statute of distributions in case of her intestacy, or which any of them should derive by, from, or under her by any ways or means, should be deemed an advancement within the meaning of the covenant. No act was done to bar the estate tail of A. V. in the copyholds, and on her death and the death of S. L., the eldest son and customary heir became entitled to the copyholds under the limitations in the surrender, which created the estate tail: Held, that these copyholds were to be considered as an advancement to the eldest son, within the meaning of the covenant. That the fi.TOOOdue under the covenant of 1052 BAILEY V. LLOYD 5 BUSS. 331. 177i was to be paid, before any part of the assets could be applied in satisfying the covenant contained in the deed of 1815. Whether a testator intended by his will to execute a po wer, is to be collected from the whole instrument, and not from the force of any particular expression. In this case, the testator devised his estates, and made disposition of part of the fund to be produced by the sale of the estates, to purposes not warranted by the power ; but still, upon the whole will, the Court held that he intended to execute the power. The recital of a deed is a key to the construction, where the operative part is doubtfully expressed, and not otherwise. By articles of agreement, bearing date the 12th of April 1779, Samuel Andre no Lloyd, in consideration of an intended marriage between him and Ann Vokins, the daughter of Richard Vokins and Margaret his wife, covenanted with trustees, that, in case he should survive [331] his intended wife, and should at his death leave issue by her which should survive him for three months, his heirs, executors, or administrators, should, within three months after his decease, pay £3000, to be divided amoug all or any of the children or issue of the marriage, in such shares as he, Samuel Andrew Lloyd, should by deed or will appoint, and in default of appointment, among the children of the marriage in equal shares. The marriage was solemnized. Afterwards, on the 2d of March 1780, Richard Vokins, for and in consideration of the natural love and affection which he had for his only child, Ann Lloyd, and her husband, Samuel Andrew Lloyd, and the issue between them begotten or to be begotten, and for divert other good causes and considerations, surrendered certain copyhold lands holden of the manor of Thornbury, to the use, after the death of himself and his wife, of Ann Lloyd during her life, and then of Samuel Andrew Lloyd during his life, and afterwards of the heirs of the body of Ann by Samuel Andrew Lloyd begotten or to be begotten. By deeds dated the 9th and 10th of May 1780, Richard Vokins and Margaret his wife conveyed certain freehold estates to trustees and their heirs, to the use, after the death of Richard and Margaret Vokins and of Mr. and Mrs. Lloyd, of all or any of the children of Mr. and Mrs. Lloyd, in such shares as they should, during their joint lives, jointly appoint; and if no joint appointment was made, to the vise of all and every or any and such of the children or child and issue of the body of the said Ann Lloyd by the said Samuel Andre-w Lloyd begotten or to be begotten, as well female as male, and without distinction, either entire, or by such parts, shares, and proportions or disproportions, at such times or time, for such estates, intents, and purposes, and [332] in such manner and form as the survivor or longest liver of the said Sajnue.L Andrew Lloyd and Ann his wife, by any deed or deeds in writing, with or without power of revocation, under his or her hand and seal, by him or her executed, in the presence of and attested by two or more credible witnesses, or by his or her last will and testament in writing, or any writing in the nature thereof, or purporting so to be, under his or her hand and seal or hand alone, to be by her executed or signed in the presence of and attested or witnessed by three or more credible witnesses, should appoint. In 1815, Mr. Vokins and his wife had been long dead. Mr. and Mrs. Lloyd had had nine children, of whom seven being about to intermarry with the plaintiff Arthur Bailey, were at that time alive ; and Emma, one of the daughters, Mr. and Mrs. Lloyd by a deed dated the 2fith of October 1815, appointed to her one-seventh share of the freehold and leasehold premises comprised in the settlement of the 10th of May 1780 ; and Mr. Lloyd, by the same deed, appointed to her one-seventh share of the...

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15 cases
  • Harvey v Stracey
    • United Kingdom
    • High Court of Chancery
    • 24 July 1852
    ...(cited supra), Morgan v. Surman (1 Taunt. 289), Carver v. Bowles (2 Russ. & M. 301), Eing v. Hardwidce (2 Beav. 352), Bailey v. Lloyd (5 Russ. 330), to support the argument that an appoint-[101]-ment partly in excess of the power does not vitiate the appointment generally; Hughes v. Turner ......
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