Baker v Baker

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date23 March 1858
Date23 March 1858

English Reports Citation: 10 E.R. 1436

House of Lords

Alfred Baker
-Appellant
Elizabeth Baker
-Respondent

Mews' Dig. i. 318. S.C. 20 Beav. 548. Distinguished in In re Mason; Mason v. Robinson, 1878, 8 Ch.D. 414; Gee v. Mahood, 1878-9, 9 Ch.D. 155; 11 Ch.D. 891; and In re Taylor; Illsley v. Randall, 1884, 53 L.J.Ch. 1161; and cf. Salvin v. Weston, 1866, 35 L.J.Ch. 553; Carmichael v. Gee, 1880, 5 A.C. 596.

Will - Annuity - Annual Income - Deficiency not made good out of Corpus - Replacing Fund sold.

[616] ALFRED BAKER,-Appellant; ELIZABETH BAKER,-Respondent [March 23, 1858]. [Mews' Dig. i. 318. S.C. 20 Beav. 548. Distinguished in In re Mason; Mason v. Robinson, 1878, 8 Ch.D. 414; Gee v. Mahood, 1878-9, 9 Ch.D. 155; 11 Ch.D. 891; and In re Taylor; Illsley v. Randall, 1884, 53 L.J.Ch. 1161; and cf. Salvin v. Weston, 1866, 35 L.J.Ch. 553; Carmichael v. Gee, 1880, 5 A.C. 596.] Will-Annuity-Annual Income-Deficiency not made good out of Corpus- Replacing Fund sold. A testator directed his brother A. B. (whom he appointed his executor and trustee) to get in his estate and to stand possessed of the produce thereof, on trust, to raise thereout and invest in the stocks or upon mortgage such a sum of money as that, when invested, the dividends should " realise the clear 143(5 BAKER V. BAKER [1858] VI H.L.C., 617 annual income or sum of 200," and to pay to " my wife such dividends, interest, or annual income," etc., for her life or widowhood. On her death or second marriage, A. B. was to stand possessed " of the said principal or trust money, and the stocks upon which the same shall be invested," in trust for himself and the other brothers and sisters of the testator. And as to the residue, " after raising thereout the money sufficient to realise the annuity for my said wife," A. B. was to stand possessed thereof on similar trusts; provided that if the testator should die leaving children, the trusts for his brothers and sisters were to be null, and the children were to take the whole. The estate when got in and invested did not produce 200 a year: Held (reversing the decision of the Court below), that the widow was not entitled to have the deficiency made good out of the corpus of the estate. A certain portion of the fund itself had, under the order of the Court below, been sold to make good the deficiency: the House, on reversing the order, directed the widow to replace that portion. This was an appeal against part of an order of the Lord Justices, affirming an order of the Master of the Rolls. The testator, by his will, dated 17th September 1851, gave all his real and personal estate to the Appellant, his brother, to get in and sell the same, and as to the money arising therefrom, " it is my will, and I do hereby declare and direct that my said trustee do and shall stand possessed thereof, upon trust, to raise thereout and invest in the Parliamentary stocks or funds of Great Britain, or upon mortgage or other good security, such a sum of money as, when so placed out or invested, the dividends or interest thereof shall realise the clear annual income or sum of 200, [617] and do and shall pay to, or permit and suffer, my said wife Elizabeth, to receive and take such dividends, interest, or annual income by two equal half-yearly payments, for and during the term of her natural life, provided she shall so long continue my widow, but not otherwise. And from and after her decease or second marriage, whichever shall first happen, it is my will, and I further declare that in case I shall die without issue, the said trustee shall stand possessed of the said principal or trust-monies, and the stocks, funds, and securities in or upon which the same shall be invested, upon trust for himself and my other brothers, Walter Baker and James Baker, and my sister Louisa, the wife of Thomas Grant, in equal shares and proportions." Other provisions were then made, and the will proceeded thus :-" And as to the residue of the said trust-monies arising from my real and personal estate and effects, after raising thereout the money sufficient to realize the annuity for my said wife, I hereby further declare that the said trustee shall stand possessed thereof, upon trust for himself and my said brothers and sister, in equal shares and proportions. Provided always that, in case I should die leaving issue, then my will is, that the trust and bequests hereinbefore contained in favour of my brothers and sister shall be null and void, and that, instead thereof, my children shall take and be entitled to the whole of the said trust-monies and estate, in equal shares and proportions, at the same times and in like manner as hereinbefore directed and declared with regard to my brothers and sister." The testator died on the 10th November 1853, without issue, leaving his widow (the Respondent), and his brothers and sister, him surviving. The sum of 2735 7s. 4d., 3 per Cent. Consolidated Bank Annuities, constituted the whole residue of the tes-[618]-tator's estates, and the dividends thereon did not amount to the sum of 200 a year. The Master of the Rolls declared the Respondent entitled during her life or widowhood to the full amount of the annuity of 200, bequeathed to her by the will, and oidered the deficiency of the dividends to be made good to her from time to time out of the corpus of the fund, and directed a sufficient part of the corpus to be sold out from time to time accordingly (20 Beav. 548). This order was taken on appeal to the Lords Justices, who differed in opinion, and consequently it stood as affirmed. The present appeal was then brought. Sir R. Bethell and Mr. Hinde Palmer for the Appellant.-The cardinal point in U37 VI H.L.C., 619 BAKER V. BAKER [1858] construing this will is, that the widow is to take only through the medium, of the investment; she can consequently take nothing but the interest thereby produced. The 200 were never intended to be produced by the absorption of capital, for that would after a time put an end to the annuity altogether. The money directed to be invested, constitutes a special trust fund, and is, upon the occurrence of either of one of two events, given over entire to the legatees in remainder. Where that was the case, Lord Lyndhurst, in Foster v. Smith (1 Phill. 629), overruling the decision of the Vice-Chancellor, held that the charge was only to be made good out of the rents, and not out of the corpus of the estate. The rule of equity is, that if the principal is specifically bequeathed, effect must be given to the bequest,-Howe v. Dartmouth (7 Ves. 137), so that the property shall in the way pointed out go over to the legatees in remainder. [619] The Master...

To continue reading

Request your trial
18 cases
  • Re Buchanan. Stephens v Draper
    • Ireland
    • Chancery Division (Ireland)
    • 8 Diciembre 1914
    ...the life of the testator's wife (which seems to me to be alone conclusive of the question before me)—if it were the simple case (1) 6 H. L. C. 616. (3) 8 Ch. D. 411. (2) I. R. 1 Eq. 97, at p. 108. (4) John. 234. VoL. I.] CHANCERY DIVISION. 107 of a gift, at the commencement of the bequest......
  • Re, Butler-Bentley v Wilson and Another.Lecky
    • Ireland
    • High Court
    • 31 Marzo 1949
    ...G. M. & G. 652. (4) 1 Dr. and Sm. 594. (5) 5 App. Cas. 588. (6) 20 Beav. 632. (7) 3 Ha. 555. (8) 1 Phil. 629. (9) 2 Jur. N. S. 927. (10) 6 H. L. Cas. 616. (1) 11 W. R. (2) 35 L. J. Ch. 552. (3) [1907] 1 Ch. 132. (4) [1907] 1 Ch. 714. (5) 3 Sim. 424. (1) 5 App. Cas. 588, at p. 593. (1) 1 Rus......
  • Re Cutlar; O'Connor v Hicks
    • Ireland
    • Supreme Court
    • 6 Julio 1939
    ...(1) 1 Russ. 370. (2) L. R. 8 Ch. D. 411. (3) 2 De G. M. & G. 652. (4) 1 Dr. & Sm. 594. (5) [1907] 1 Ch. 714. (6) [1907] 1 Ch. 132. (7) 6 H. L. Cas. 616. (1) 5 App. Cas. 588. (2) 1 L. R. Ir. 496. (3) [1895] W. N. 123. (4) [1915] 1 I. R. 95. (5) 20 Beav. 632. (6) 6 H. L. Cas. 616. (7) [1907] ......
  • Napier v Staples
    • Ireland
    • Rolls Court (Ireland)
    • 25 Noviembre 1859
    ...2 Phil. 705. Kendall v. RussellENR 3 Sim. 424. Pinnell v. HalletENR 1 Amb. 106. Lady Londonderry v. Wayne Ambl. 424. Baker v. BakerENR 6 H. L. C. 616. Wilcocks v. Wilcocks 2 W. & T. 302. Alcock v. Sloper 2 M. & K. 699. Hinves v. HinvesENR 3 Hare, 609. Pickering v. Pickering 4 M. & N. 289. B......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT