Baker v Baker
| Jurisdiction | England & Wales |
| Judgment Date | 07 July 1847 |
| Date | 07 July 1847 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 1168
HIGH COURT OF CHANCERY
S. C. 11 Jur. 585.
[269] baker v. bakee. July 6, 7, 1847. [S. C. 11 Jur. 585.] On construing an appointment of stock in these words, " unto and among my said brother and my sisters and my nephews and nieces living at the decease of my wife in equal shares and proportions," it was held that the qualification of living at the death of the wife attached only to the nephews and nieces, the last antecedent. The direction as to the shares and proportions in which the legatees are to take the property does not affect the construction of the words which describe the persons who are to take. The legatees took per capita. Sir Thomas Bernard, by his will, dated in 1817, devised certain real estates to his brother, Scrope Bernard Morland; and as to a sum of £20,000 consols, and a sum of 10,000 £4 per cent, annuities, vested in [270] the trustees of his marriage settlement, upon trust, after the decease of his wife, to transfer the same as he should direct, he directed as follows:-" I do hereby direct and appoint, will and declare that the [trustees] do and shall, immediately after the decease of my said wife (she having survived me), transfer and make over the said two sums of £20,000 and £10,000, and other the' trust premises, to the persons and in the proportions, folio wing, viz., to my nephew, the Reverend James Baker, one-fourth part of the said two sums and trust premises; to my nephew, Thomas Tyringham Bernard, one other fourth part of the said two sums and trust premises; and as to the remaining moiety of the said two sums and trust premises, do transfer and make over the same, or pay such clear sum or sums of money as shall arise or be produced from the sale thereof, unto, between and among my said brother and my sisters and my nephews and nieces living at the time of the decease of my said wife, in equal shares and proportions." The wife survived the testator and the brother and sisters. The principal question of construction was whether the qualification of being alive at the time of the widow's death was attached to all the legatees, or to the sisters, nephews and nieces, or the nephews and nieces exclusively. It was also questioned whether the legatees took in classes, one share for each class, or whether they took per capita. Mr. Bomilly, Mr. Wood, Mr. Eolt, Mr. P. White, Mr. E. Palmer, Mr. Wickens, Mr. Erskine and Mr. Darnell appeared for the different parties...
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