Beale v Beale
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1715 |
| Date | 01 January 1715 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 373
LORD CHANCELLOR HARCOURT.
[244] de term. S, hillarii, 1713. Case 55.-beale versus beale, [1713.] (Reg. Lib. A. 1713, fo. 664.) Lord Chancellor Harcourt. The eldest daughter, where there is a son, or where the'estate by a settlement \ goes all to a remainder-man, is a younger child in equity.(1) A. was tenant for life, remainder to his first, &c., son in tail male, remainder to his brother B. in tail. A. having no issue, A. and B. joined in a recovery, to the use of A. for life, remainder to such woman as A; should marry for her life, remainder to the first, &c., sons of A. in tail male, remainder to B. the brother in tail male, remainder to A. in fee, With a power to A. by deed, or will, to charge the premisses with any sum not exceeding 2000 for portions for younger children, sons or daughters, who should be living at his death, in such proportions as he should think fit. A. marries, and has issue two daughters only, one of whom was born after his death. [245] A-- by his will charges the premisses with 2000 to his daughter Mary payable at twenty-one, or marriage; but if the child with which his wife was then ensient, should prove a daughter, then he directs that the 2000 should be equally divided betwixt them. A. dies, and the two daughters, being of very tender years, bring their bill for the raising of this 2000 out of the reversionary estate, and to have interest in the mean time for their maintenance. Objected, the elder daughter is not entitled to any part of this 2000, because it was only to go to the younger children, and the younger daughter cannot claim any part of it, because she was not living at the time of A. 's death, and by the words of the settlement, the 2000 was to go to the younger children that A. should have living at his death. Cur' : The eldest daughter, tho' first born, when there is a son, has been often ruled to be as a younger child. (Vide post, Butler v. Duncomb, 451.) Every one but the heir is a younger child in equity, and the provision which such daughter will have, is but as a younger child's, in regard the son goes away with the land as heir ; so here, the estate by the settlement goes all to the remainder-man, who is hceres foetus, and neither of the two daughters is heir ; wherefore the elder daughter having no more than the younger, is (as to this provision) a younger child, and consequently capable 'Of taking it. [246] As to the other objection, it would be...
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