Bending v Bending
| Jurisdiction | England & Wales |
| Judgment Date | 26 March 1857 |
| Date | 26 March 1857 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 1104
HIGH COURT OF CHANCERY
S. C. 26 L. J. Ch. 469; 3 Jur. (N. S.) 535; 5 W. R. 435.
Will. Dower. Election.
[257] bending v. bbnding.(!) March 24, 26, 1857. [S. C. 26 L. J. Ch. 469; 3 Jur. (N. S.) 535; 5 W. K. 435.] Will. Dower. Election. Powers of or trusts for sale, created by will over real estate, are not (as leasing powers have been held) inconsistent with a widow's right to dower. Nor is her claim affected by any direction as to the distribution of the proceeds. There is no such rule as that, where a testator's widow is entitled under his will to what would exceed her dower, she is thereby put to her election. Where a testator, by his will, directed his trustees to sell " all his freehold and copyhold estates wheresoever situate," and gave his widow half of the proceeds, and also half of all his personal property (except certain articles specifically bequeathed to (1) See 1 Jarm. on Wills, pp. 382 to 393. 3K. &J.258. BENDING V. BENDING 1105 her): Held, that she was not bound to elect between her dower and the benefits given her by the will. The authorities on this subject examined, and observations on Chalmers v. Storil (2 V. & B. 222), which is imperfectly reported. Joseph Bending, by his will, in 1853, after appointing two persons, named Mackeson and Cubitt, to be executors and trustees thereof, proceeded to devise as follows :-" First, I give unto my wife all my household furniture, money, securities for money, and all other my personal estate of every description, to hold the same unto my said wife for her absolute use and disposal, she paying thereout my just debts, funeral and testamentary expenses, and also a legacy of £50 to John Dunnell. I direct my said executors and trustees, or the survivor of them, his heirs and assigns, as soon as convenient after my decease, to proceed to a sale by auction of all my freehold and copyhold estates wheresoever situate, lying and being; and after paying all [258] expenses attending the said sale or sales, I do give one-half of the proceeds of the said sale, after payment of the said expenses as aforesaid, unto my said wife absolutely, one-fourth part of the said proceeds unto my half-niece Miranda, and the remaining one-fourth part unto Thomas Bending." The testator made a codicil to his will, as follows:-"Whereas, by my will I have f 'ven all my money, securities for money, and all my personal estate, unto my wife, ow, my intention is to give my household furniture, plate and effects in and about my dwelling-house to my said wife, and no more, except the said half mentioned in the said will; and all my money, securities for money, and all other my personal estate should be divided in the same proportions as my real and copyhold estates; and that the legacy of £50 to John Dunnell should be paid out of my money and personal estate, also my just debts and funeral expenses." The Chief Clerk having found that the testator's widow was dowable out of a freehold house of which he died seised in fee, the question, on [further consideration, was whether she was bound to elect between her dower and the benefits given her by the will. Mr. Hallett, for the Plaintiff, Thomas Bending, and Mr. H. Clarke, for the Defendant Miranda and her husband, contended that the widow was put to her election. By the effect of the will and codicil taken together the whole of the real property, and (with the exception of the household furniture, plate and effects mentioned in the codicil) the whole also of the personal property, are united [259] and directed to be sold, and the entire proceeds are to be divided into two equal moieties, one for the widow, the other for the Defendants, in equal shares. " By directing all bis real and personal estate to be equally divided, the testator intended the same equality to take place in the division of the real as of the personal estate, which cannot be if the widow first takes out of it her dower:" per Sir William Grant in Chalmers v. Storil (2 V. & B. 222). " The real and personal estate are...
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