Bernal v Bernal
| Jurisdiction | England & Wales |
| Judgment Date | 28 February 1838 |
| Date | 28 February 1838 |
| Court | High Court of Chancery |
English Reports Citation: 40 E.R. 1042
HIGH COURT OF CHANCERY
S. C. C. P. Coop. 55; 7 L. J. Ch. (N. S.), 115; 2 Jur. (O. S.), 273.
[559] Between jacob bernal and esther, his Wife, and others, Plaintiffs; and josephbernal, joseph de castro, leah bernal, and others, Defendant*; and between the said joseph bernal and others, Plaintiffs; and the said jacob bernal and others, Defendants. Feb. 21, 28, 1838. (1)' [S. C. C. P. Coop. 55; 7 L. J. Ch. (N. S.), 115 ; 2 Jur. (0. S.), 273.] "Male children," in a Dutch will, held to mean "male descendants;" and "male descendants " held to mean, according to the English law [and semble, according to the Dutch law also], descendants claiming through males only. The petition of Jacob Bernal and Abraham fiernal, " male descendants of Benjamin Bernal, the favoured nephew of the testator Joseph Bernal," stated,- That Joseph Bernal, otherwise Gaspar Francis Bernal, the testator in the cause, made his will at Amsterdam, dated, at the commencement, the 4th of October [560] 1693, and at the end, the 2d of December 1695, and that in such will were contained the following clauses, viz., " I order that the effects which I have in the India and African Company of London and their profits shall be [561] applied to the performance of this my will; and what shall remain, be it little or much, it shall be put into stock into the chamber of Zealand, whose dividends and those of London, with the interest of 1200 in that of [562] the African at London, shall bo applied to keep the capital entire; except that it should happen to appear to my executors that any of the relations hereinafter named should be reduced to want; in which case all the dividends, or interest shall be applied to those in necessity, [563] which are Jacob Levi Ganez, Abraham and Jacob de Isaac Bernal, Isaac de Jacob Bernal, Benjamin Bernal, and also Rachel Louzado, Leah de Castro, and Esther Franco, if they or their children shall come to want, and in like manner the, male children of the above-named men, also included in clause; Leah, Rachel, and Esther of Jacob Bernal my brother, and their children, whom God prosper, they may not come to want this. And it is also my will that when it shall happen that any female orphan of my generation be Jews are to be married, there shall be given to them 1000 guilders dowry out of [564] the said interests by the votes of the executors of my will, and the grandsons and the great-grandsons of the race of my father who is in glory that shall be found living in Judaism; which my executors shall perform, and when any die shall name others in their place. Item, I name for my executors of my testament and this my will Jacob Levi Ganez and Abraham Bernal, my nephews; with power at the end of their days, to name others in their place, to execute and administer of what shall be left of my estate and effects, in the manner that shall appear to them to be most for the security and benefit: for that my meaning is, that as much stock as may be shall be preserved, that their produce may answer and be applied to the necessities of those of the race of my father (whom God hath), at the discretion of my executors, and those they shall name in their places; and I charge the one and the other to choose out of our heirs and 3 MY. & CR, MS. BEENAL V. BERN"AL 1043 near kindred persons capable; to the end that in this manner the money hereof may be preserved for the comfort and succour of our family, and that they may be provided for; and I hope other relations will augment this stock, to the end that they may have greater assistance in the adversity that may fall them (from which God deliver us), the descendants or near kindred, who for sins may suffer these or the like misfortunes, (from which God deliver them), that they may succour the others. I say my will is, that Isaac de Jacob Bernal, and Benjamin Berna), my nephews, be also my executors, that they may receive of my goods and effects, be it only by Jacob Levi Gaiiez, or who else shall have a power from him and the rest, for that they may help him in fulfilling my will, and have voices in the things and succours that are to be given more than what is herein expressed in this my last will; and likewise my will is, that in those csusea Leah de Castro and Esther Franco, my nieces, shall meet and have votes, by reason they have more kno\v-[565]-ledgo of our relations in Spain, and of my inclinations and obligations. And I charge everybody that they give to the children of Benjamiiv Bernal, and prefer them to others, if they should want, or be to be married," That the testator died at Amsterdam in the year 1696, and that his will was shortly afterwards duly proved there by his executors: That on or about the 29th of January 1722 (all the testator's executors being then deceased) the Defendant Joseph Bernal, the eldest son of the before-mentioned Benjamin Bernal, procured letters of administration, with a translation of the will annexed, to be granted to him by the Prerogative Court of Canterbury : That, by the decree made in these causes on the 9th of December 1728, it was referred to the Master to take an account of the testator's personal estate, and the produce thereof, from the several persons who had received the same; and that it was ordered that the parties should lay a scheme before the Master for the distribution of the interest and income of the stock and funds therein mentioned : That the Master made his report, dated the 26th of January 1729, in pursuance of the decree, and certified that, at that time, fourteen persons therein named, and no more, were in want, and proper objects of the charity, and that he had approved of the scheme that had been laicTbefore him, as a good rule for distributing and disposing of the dividends of the stock : That, as the persons mentioned in the report died, others were, from time to time, admitted partakers of the dividends and interest of the fund in Court, by divers orders of the Court; and that, by an order dated [566] the 10th of February 1768, it was ordered that the interest and dividends of the fund in Court should be paid to the several persons therein named, in manner therein mentioned; and that, by an order made on the 22d of June 1768, it was ordered that the dividends, arising from the old South Sea annuities, then in Court, should be divided amongst the several persons therein named: That many persons continued, from time to time, to be admitted partakers thereof, by various orders, and that, by an order dated the 22d of January 1806, it was ordered (amongst other things) that the interest thereafter to accrue due on the .8162, Os. 6d. Old South Sea annuities, then in Court, until further order, should be divided into thirty-two equal shares amongst the several persons therein named : That, by sai order of the 25th of March 1833, it was ordered that the interest and dividends of the 8162, Os. 6d. South Sea annuities, being the then fund in Court, should be divided and paid to and amongst the nineteen persons therein named, that is to say, the Petitioners Jacob Bernal and Abraham Bernal, and also Deborah Sanguinette, Hannah Sanguinette, John Sanguinette, Elias Sanguinette the younger, Joseph Sanguinette, Isaac Rodrigues, Sarah the wife of John Tullock, Esther the wife of Joseph Banks, Marian the wife, and afterwards the widow, of Charles Upton, Deborah Rodrigues, Esther Genese, Isaac Genese, Sarah Genese, Abraham Genese, Sampson Genese, Hannah Genese, and Samuel Genese, by half-yearly payments, until the further order of the Court: That the several nineteen persons, named in the last-mentioned order, continued to receive the dividends of [567] the said annuities, under such order, until the year 1834, when the payment thereof ceased or was suspended, by reason or in consequence of the proceedings after mentioned : That on or about the 18th of June 1834 the Petitioner Jacob Bernal preferred his petition in these causes to the Master of the Rolls, praying such declaration as to 1044 BEKNAL V. BEBNAL 3 MY. te CR. 868. the proper persons entitled to or to participate in the dividends of the funds in Court, as should appear to be just, and to give such directions, for the guidance of the Master or otherwise, as should appear expedient, or to make and give such other declarations, order, and directions, touching the matters aforesaid, as the case might require, and to His Honour might seem meet: That, by an order of the Master of the Rolls, made on the hearing of the petition, bearing date the 25th of June 1834, it was, amongst other things, ordered that the Master should proceed in the reference directed by a former order of the 20th of January 1834; and in so doing he was to have regard to the course which had been thitherto adopted as to the construction of the will: And that it was ordered that so much of the said 8162, Os. 6d. Old South Sea annuities standing in the name of the Accountant-General, in trust in these causes, as would be sufficient to raise the amount of certain costs in the petition mentioned, should be sold; and that out of the money to arise by the sale the costs should be paid: That the Petitioner Jacob Bernal, on the 31st of October 1834, preferred his petition of appeal to the then Lord Chancellor, stating the several matters aforesaid, and otherwise as therein mentioned, and appealing [568] against so much of the order of the Master of the Rolls on the 25th of June 1834 as directed him to proceed in the reference directed by the order of the 20th of January 1834, and, in so doing, to have regard to the course which had been thitherto adopted as to the construction of the will; and that the Petitioner- submitted the several matters in...
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...7 Oddly enough there appears to be no English authority on the subject later than the year 1938 when the case of ( Bernal v. Bernal 3 My. & Cr. 559) was decided. By way of appendix to that case is reported the case of ( Oddie v. Woodford 3 My. & Cr. 584 ), decided 17 years earlier and pres......
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Between Jacob Bernal and Esther, his Wife, and Others, Plaintiffs; and Joseph Bernal, Joseph De castro, leah bernal, and Others, defendant*; and between the said joseph bernal and Others, plaintiffs; and the said jacob bernal and Others, defendants
...and others defendant* and between the said joseph bernal and others plaintiffs and the said jacob bernal and others defendants. S. C. C. P. Coop. 55; 7 L. J. Ch. (N. S.), 115; 2 Jur. (O. S.), 273. [559] Between jacob bernal and esther, his Wife, and others, Plaintiffs; and josephbernal, jos......
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