Baxter v Losh
| Jurisdiction | England & Wales |
| Judgment Date | 10 December 1851 |
| Date | 10 December 1851 |
| Court | High Court of Chancery |
English Reports Citation: 51 E.R. 420
ROLLS COURT
S. C. 21 L. J. Ch. 55.
420 BAXTER V. LOSH MBBAV.6U. [612] baxter v. losh. Dec. 10, 1851. [S. C. 21 L. J. Ch. 55.] Bequest of personal estate after the death of the tenant for life, in trust to pay equally between A. and B. But if " neither " should be then living, to C. A. died in the lifetime of the testatrix. B. survived the tenant for life, and claimed the whole, either as surviving joint-tenant or under a gift to her by implication. The Court rejected such claim, and held that the moiety intended for A. had lapsed, and belonged to the next of kin of the testatrix. This was a special case arising on the will of Sweetenham Waters. By her will, dated in 1818, she gave her residuary personal estate in trust for three persons for life, with benefit of survivorship, and, after the decease of the survivor, upon trusts, which she expressed as follows:-"Upon trust to pay, assign, or transfer the whole of the said stocks, funds, and Government securities, and all interest due thereon, unto and to the use of and equally between George Baxter and Eliza Baxter, children of my said sister Ann Baxter, their executors, administrators and assigns, absolutely, for ever. [613] " But in case it shall happen that the said George Baxter and Eliza Baxter shall neither of them be living at the time of the death of the survivor of the said Ann Baxter, Rosillie Henrietta Thomas, and Lucy Susannah Catmeer (the tenants for life), then I give and bequeath the same to Francis Hutchinson of Newcastle, if he shall be then living." George Baxter died in 1821, in the life of the testatrix. The testatrix died in 1822. The three tenants for life being now dead, the questions were, 1st, Whether Eliza Baxter, the Plaintiff, in the events which had happened, was now absolutely entitled under the limitations of the said will, to the whole beneficial interest in the stock of which the residuary personal estate now consisted; and, if she was not so entitled, 2dly, whether the Defendants Jemima Porteus, and Susan Hussey and Elizabeth Davidson, as legal personal representatives of the next of kin of the testatrix Sweetenham Waters, were entitled to have one equal fourth part of the same stock transferred into each of their names. Mr, Stratton, for the Plaintiff. The Plaintiff is entitled to the whole, either as surviving joint-tenant or by implication arising from the gift over, which is only to-take effect if neither...
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