Barnwell v Iremonger
| Jurisdiction | England & Wales |
| Judgment Date | 31 July 1860 |
| Date | 31 July 1860 |
| Court | High Court of Chancery |
English Reports Citation: 62 E.R. 372
HIGH COURT OF CHANCERY
S. C. 30 L. J. Ch. 13; 8 W. R. 740.
Will and Codicil. Real estate. Specific devise. Residuary devise. Costs. Device of Incumbered Estates. Vendor's Lien.
872 BAENWELL V. IBEMONGER 1 DR. & SM. m. [242] barnwell v. iremongek. July 28, 31, 1860. [S. C. 30L. J. Ch. 13; 8 W. R. 740.] Will and Codicil. Beal Estate. Specific Devise. ' Residuary Devise. Costs. Devise of Incumhered Estates. Vendor's Lien. A testatrix being possessed of three estates, by her will devised one of those estates by name, and all other her lands and tenements whatsoever and wheresoever, and, by a codicil executed on the same day, specifically devised her two other estates to different persons. Held, that the will and codicil were executed to carry out one intention, that the will must be read as if it contained an express exception of the two estates devised by the codicil, that the estate devised by name in the will was specifically devised, and that the devise in the will was residuary so far only as related to after-acquired property; and therefore that all three estates must contribute rateably to the payment of debts, the personal estate being insufficient; A residuary devise of real estate, since the Wills Act (1 Viet. c. 26), is not specific. 1. Costs incurred in selling real estate in an administration suit before decree charged on such real estate, and not on the personal estate. 2. Where it is ordered that real estates which are charged with incumbrances shall contribute rateably to the payment of costs, such estates must be valued for the purposes of such contribution at the net values, after payment of incumbrances. 3. Where the Court had declared that certain devised estates were devised subject to incumbrances charged thereon, and a vendor had a lien for unpaid purchase-money on one of such estates, the Court held, that, under the circumstances of the case, the vendor's lien stood precisely in the same position as any other incumbrance, and that it must be paid out of the particular estate on which it attached. This was an administration suit. The question was as to the manner in which the real estates devised by the will and codicil of the testatrix should contribute to the payment of her debts, the personal estate being insufficient. ; Jane Thomas, being entitled to real estates in the counties of Anglesey, Carnarvon and Denbigh, by her will, dated the 21st of July 1851, devised unto John Browning Edwards, John William Ellis, John Morgan and Frederick Long Barnwell, whom she appointed trustees of her will, all her lands, tenements and real estate at Cemmaes, Llanbadrig and Amlwch or elsewhere, in the county of Anglesey, and all other lands, tenements and real estate whatsoever and wheresoever which she might have at the time of her decease or had power to dispose of by that her will, upon trust for John Browning Edwards for life, and after his death in trust for his children in manner therein mentioned, and if John Browning Edwards should die without issue, she directed that her trustees should stand seised of her said lands, tenements and hereditaments and real estates for the term of ten years from the day of his decease, and manage the same and receive the rents, issues and [243] profits, and by accumulation thereof or otherwise pay off and discharge the mortgages, charges or incumbrances on the said estates, or so much thereof as such rents, issues and profits might be sufficient to satisfy, and at the expiration of such ten years, or so soon as all such mortgages, charges or incumbrances should be satisfied, if the same should be sooner discharged, then she directed that the trustees should stand seised of her said real estates, upon trust for the second son of her late nephew, Rice Eobert Huges, and the heirs of his body, if such second son or any of his .issue should not previously to the expiration of the said term of ten years have become entitled to the messuages, lands, tenements and hereditaments of Trevor Hall, in Denbighshire, belonging to her late mother, Margaret Thomas, under her will; but if such second son or any of his issue should have become so entitled, then she directed that her trustees should stand seised of her said real estates upon similar trusts in favor of the third son of her said late nephew, Rice Robert Huges, and the heirs of his body, and in case of the said second and third sons both having become entitled to the said messuages and lands 1DK.&SM.244. BAK.NWELL V. IREMONGER 373 of Trevor Hall as aforesaid, previously to the expiration of the said term, then she directed that her trustees should convey the said real estates to such uses as should be then subsisting of and in the messuages, lands and tenements of her late father and brother at Coedhelen, in the county of Carnarvon; and the said testatrix directed that if the second son of the said Rice Robert Huges, or any of the issue of such second son, should become entitled to an estate tail in possession in equity under the trusts aforesaid in her said real estates, then, on failure -of issue of such second son, the same should go and belong to the third son of the said Rice Robert Huges, and on failure of issue of [244] both of them,: should be settled to the aforesaid subsisting uses of the said estates at Coedhelen; and the said testatrix further directed that if the third son of Rice Robert Huges, or any of the issue of such third son, should become entitled to an estate tail in possession in equity under the trusts aforesaid in her said real estates (without the second son or any of his issue ever having become entitled to any estate tail therein), then on failure of issue of such third son the same estates should be settled to the aforesaid subsisting uses of the Coedhelen estates; and the said testatrix declared that it should be lawful for her trustees or trustee at any time or times, if they or he should find it necessary or expedient for the purpose of discharging any of the mortgages, debts or incumbrances aforesaid, to sell or mortgage her real estates or any parts or part thereof; and the said testatrix, after bequeathing certain pecuniary bequests and legacies amounting to £400, charged such bequests and any other pecuniary legacies which she might give by any codicil thereto upon her real estate in discharge of her personal property thereby or by any codicil thereto specifically bequeathed. The said will then contained the following clause :- "And I...
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