Between Elizabeth Murthwaite, John Macpherson and Charlotte his Wife, Francis Lind, and John Hudson May v the Honourable Charles Cecil Pope Jenkinson, the Honourable Henry King, the Reverend John Mitchel, John Cuthbertson, Maria Barnard, Alexander Hume Evelyn, John Byde, George Barnard, Charles Murthwaite, and Henry Woodcock
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1824 |
| Date | 01 January 1824 |
| Court | Court of the King's Bench |
English Reports Citation: 107 E.R. 418
King's Bench Division
S. C. 3 D. & R. 764; see also 3 B. & C. 191.
418 MURTHWAITE V. JENKINSON 2 B. it C. 357. (3571æ Between ELIZABETH MURTHWAITE, JOHN MACPHERSON AND CHARLOTTE his Wife FRANCIS LIND, AND JOHN HUDSON MAY, Plaintiffs; ; AND THE HONOURABLE CHARLES CECIL POPE JENKINSON, THE HONOURABLE HENRY KING, THE REVEREND JOHN MITCHEL, JOHN CUTHBERTSON, MARIA BARNARD, ALEXANDER HUME EVELYN, JOHN BYDE, GEORGE BARNARD, CHARLES MURTHWAITE, AND HENRY WOODCOCK, Defendants. And between GEORGE BARNARD, an Infant, by FREDERICK AUGUSTA BARNARD his Grandfather and Next Friend, Plaintiff ; AND ELIZABETH MURTHWAITE, JOHN MACPHERSON AND CHARLOTTE his Wife, MARIA BARNARD, FRANCIS LIND, JOHN HUDSON MAY, JOHN CUTHBERTSON, CHARLES MURTHWAITE, ALEXANDER EVELYN, JOHN BYDE, HENRY WOODCOCK; THE HONOURABLE CHARLES CECIL POPE JENKINSON, THE HONOURABLE HENRY KING, AND THE REVEREND JOHN MITCHEL, Defendants. And also between ELIZABETH MURTHWAITE, JOHN MACPHERSON AND CHARLOTTE his Wife, FRANCIS LIND, AND JOHN HUDSON MAY, Plaintiffs ,ò AND THE HONOURABLE CHARLES CECIL COPE JENKINSON, AND SIR HERBERT TAYLOR, Defendants. And also between ELIZABETH MURTIIWAITE, JOHN MACPHERSON AND CHARLOTTE his Wife, [35$] FRANCIS LIND, AND JOHN HUDSON MAY, Plaintiffs ; AND GEORGE IRTON MURTHWAITE, AND JANE CUTHBERTSON, Defendants (a). 1824, A., by will duly executed to pass real estates, devised and bequeathed to trustees, and to the survivors and survivor of them, and the heirs, executors, and adminis-, trators of such survivor, all and every his freehold, copyhold, and leasehold estates, and all his personal estate and effects whatsoever and wheresoever, in trust to pay thereout the several legacies and annuities therein by him given and bequeathed, and for other purposes in the will mentioned. The testator then gave legacies and annuities to a considerable amount ; and directed that the annuities should be chargeable upon his 26,4001. in the 3 Per Cent. Consolidated Annuities. It was stated in the case that a large surplus remained after paying debts, legacies, and annuities ; but it was not stated that the legacies were actually paid, or that-the annuitants were dead after the legacies and annuities, the testator proceeded, " All the rents, issues, dividends, interest, profits, and produce of all therest, residue, and remainder of my estate and effects whatsoever and wheresoever, and of what nature, kind, or quality soever, as well real as personal, which I shall die seised or possessed of, interested in, or entitled to, at the time of my decease, I do give, devise, and bequeath unto my three nieces, E. M., M. M., and C. M., equally to be divided between them, share and share -alike, for and during the term of their natural lives. And from and after the decease of them or either of them, it is my will that the lawful issue of them and each of them shall have and enjoy his or her mother's share of all such residue of such rents, issues, dividends, and profits for life in like manner. And if either of my nieces shall happen to die in the lifetime of the others or other of them without issue of her body lawfully begotten, that the share of her so dying without issue as aforesaid, shall go to, and be shared and divided equally between, the survivors of my nieces for their respective lives, and afterwards by the lawful issue of the survivors of my nieces in like manner. And if all my nieces and their issue, save one, shall die without issue lawfully begotten, then such surviving niece shall have and enjoy the whole of the'rents, Re. of such residue of my estate and effects for and during the term of her natural life. And from and after her decease, the lawful issue of such surviving niece (if more than one) shall have the whole of the rents, Re. equally between them, share and share alike; and if hut one, then such only one shall have and enjoy the whole of such part thereof as is personal, to and for his or her own use and benefit ; and to hold so much and such part or parts thereof as are freehold, to them and each of them, if more than one, their or his or her heirs and assigns, as tenants in common, and not as joint tenants ; and if but one, then to such one, his or her (a) Pursuant to His Majesty's warrant, issued ten days before the end of Michaelmas term, three of the Judges of this Court sat, as on former occasions, on Tuesday' the 13th of January and the following days, and decided this and the several following cases. On the 22d, the Lord Chief Justice sat with the other three Judges; and on one of the preceding days he also presided (Best J. sitting at Nisi Prius). heirs and assigns for ever. And if all my nieces shall die without issue, then from and after the decease of the survivor of them my nieces without issue as aforesaid, I give the whole of such residue to my next male heir of the name of Murthwaite, to hold to him, his heirs, executors, and administrators, in manner aforesaid." Two of the trustees were dead. All the nieces were still living, two of them had no children, the other had one child, a son, G. B. Held, first, that J. C., the surviving trustee, now has a fee-simple in the freehold estates, and an absolute interest in the leasehold. Secondly, that the testator's three nieces took no legal estate under the will. Thirdly, that G. B. took no estate under the will. Fourthly, supposing that the will had commenced with the words "all the rents," &c. and the passage before those words had been omitted; the three nieces would have taken estates tail in the freehold, and absolute interests in the leasehold. Fifthly, that G. B. would have no estate in the freehold or leasehold tenements ; but should he survive the three nieces, and neither of them should have any other child, he would be tenant in tail of the freehold, but have no interest in the leasehold estates. Should he die in the lifetime of the three nieces, he would die seised of no freehold, nor possessed of any leasehold estate. [S. C. 3 D. & R. 764 ; see also 3 B. & C. 191.j This case was sent by the Lord Chancellor for the opinion of this Court. Thomas Murthwaite, late of Smallberry Green, within the parish of Isleworth, in [359] the county of Middlesex, Esq., the testator hereinafter named, was, at the times of making his will and of his death, seised in fee-simple of freehold tenements, and seised in fee-simple of some copyhold tenements, which he duly surrendered to the use of his will; and was also possessed of several leasehold estates for years, and of other personal estate of different descriptions, to a very considerable amount. And the said Thomas Murthwaite duly made and executed his last will and testament, in writing, bearing date the 29th of December, 1806, and which was duly executed and attested, so as to pass freehold estates, and was as follows : "I give, devise, and bequeath to Mrs. Margaret Murthwaite, of Twickenham, in the county of Middlesex, widow, Mr. John Cuthbertson, of Poland Street, in the said county of Middlesex, and to Mr. John Janes, of the Inner Temple, London, Gentleman, and to the survivors and survivor of them, and the heirs, executors, and administrators of such survivor, all and every my. freehold, copyhold, and leasehold estate, and my personal estate and effects whatso- ever, and Wheresoever situate, lying, and being, whether the same consists of mortgage, money in the public funds or stocks, bonds, notes of hand, or other securities, and all other my real and personal estate and effects of what nature or kind soever, not hereinafter by me specifically bequeathed, upon the trusts, and to and for the uses, ends, intents, and purposes hereinafter expressed, mentioned, and declared of and concerning the same ; that is to say, in trust to pay thereout the several [360] legacies and annuities herein by me given and bequeathed, and for other the purposes in this my will mentioned." The testator then gave annuities to several persons for their respective lives, to the amount of 4401. per annum ; and proceeded : " All which before mentioned annuities I hereby will, order, and direct,. shall be chargeable upon and payable out of my twenty-six thousand and four. hundred pounds Three Per Cent. Consolidated Bank Annuities, or such sum as may be standing in that fund in my name at the time of my decease." The will then contained bequests of legacies to a considerable amount, and then was as follows : "All the rents, issues, dividends, interest, profits, and produce of all the rest, residue, and remainder of my estate and effects whatsoever and wheresoever, and of what nature, kind, or quality soever, as well real as personal, which I shall die seised or possessed of, interested in, or in any way entitled unto at the time of my decease, I do...
To continue reading
Request your trial