Between Sir John Kenward Shaw, Bart., John Cornwall, The Rev. Robert William Shaw, and The Rev. John Kenward Shaw Brooke, Plaintiffs; and William Borrer, Defendant
| Jurisdiction | England & Wales |
| Judgment Date | 05 August 1836 |
| Date | 05 August 1836 |
| Court | High Court of Chancery |
English Reports Citation: 48 E.R. 422
ROLLS COURT.
S. C. Donnelly, 150; 5 L. J. Ch. (N. S.), 364. See Ball v. Harris, 1838, 4 My. & Cr. 264.
[559] Between sib john kenward shaw, Bart., john cornwall, the rev. robert william shaw, and the rev. john kenward shaw brooke, Plaintiffs; and william borrer, Defendant. April 22, 23, August 5, 1836. [S. C. Donnelly, 150; 5 L. J. Ch. (N. S.), 364. See Ball v. Harris, 1838, 4 My. & Cr. 264.] A testator, after commencing his will with words amounting to a charge of hia real estate with the payment of his debts, devised an advowson to trustees upon trust to present his youngest son to the living when vacant, and subject thereto in trust to sell and apply the produce of the sale for the special purposes therein mentioned ; and he devised his residuary real estate upon certain trusts to other trustees, and appointed three executors (who proved his will) one of whom was his youngest son, and another one of the trustees of the advowson. The personal estate being insufficient for the payment of his debts, the trustees of the advowson, one of whom was an executor, at the instance of the other executors, contracted to sell the advowson, before any vacancy had occurred in the living. In a suit for specific performance by the Plaintiffs, the trustees of the advowson and executors, against the purchaser, it was held that, the charge being in effect a devise of the real estate in trust for the payment of debts, a good title could be made by the Plaintiffs, without the institution of a suit to ascertain the deficiency of the personal estate, and that the purchaser was not bound either to inquire whether other sufficient property ought first to be applied in payment of debts, otto see to the application of the purchase-money. The bill was filed for the purpose of compelling the specific performance of an agreement, whereby the Defendant contracted to purchase a certain advowson from two of the Plaintiff's. The advowson in question was devised by Sir George Gregory Shaw, and upon the construction of his will, dated the 13th of April 1831, the question of title arose. The will commenced as follows:-"First, I direct all my just debts, funeral and 1 KEEN 860. SHAW V. BORRER 423 testamentary expences to be paid and discharged with all convenient speed, after my decease ; and I give and devise all that the advowson and right of patronage of and to the rectory or living of Hurtsperpoiut, in the county of Sussex, with the rights, members, and appurtenances thereof, unto and to the use of my son John Kenward Shaw and John Cornwall, [560] their heirs and assigns, but upon trust, nevertheless, that they, or the survivor of them, or the heirs or assigns of such survivor, shall and do present my youngest son, Robert William Shaw, to the same, when and as the same rectory or living shall become vacant, and subject thereto upon trust that they, my said trustees, or the survivor's, &c., do sell and absolutely dispose of the said advowsoii and right of patronage, either by public sale or private contract, as they or he may think fit, and do and shall pay the monies to arise by such sale, after defraying expences, unto and equally between all my daughters, who shall be then single and unmarried, in equal portions share and share alike." And the testator directed that the receipts of the trustees should be a good discharge for the purchase-money and that the purchaser or purchasers should not bo liable or accountable for the application, misapplication, or non-application thereof. The testator then gave a certain leasehold estate and furniture to trustees, upon trust to permit his eldest unmarried daughter to have the use thereof during her life, if she so long continued unmarried, and after her decease, or marriage, which should first happen, upon trust to permit his second, third, and all other his unmarried daughters, severally and successively, to have the use thereof; and after the decease or marriage of all his daughters, in trust for his son John Kenward Shaw, if he should be then living, but if not, then in trust for his eldest son, for the time being, his executors, administrators, and assigns. To this bequest of the leasehold estate and furniture, there was annexed a power of sale to be exercised under certain circumstances, with directions that the purchaser should not be liable to see to the application of the purchase-money. And after the death of his wife, the testator appointed and devised his manors, messuages, lands, and hereditaments whatsoever, to Maximilian Dudley Digger Dalison, [561] and John Cornwall, and their heirs, upon trust, with all convenient speed, after the death of the testator's wife, to convey and settle the same, to the use of his eldest son John Kenward Shaw, and the heirs male of his body; and, for want of such issue, to his two grandsons, and the heirs male of their respective bodies, with several remainders over; and after giving his jewels to his wife absolutely he gave his plate and household goods, &c., described in his will as belonging to his mansion-house at Kenward, to his wife, for her life, and after her death, to the trustees, Dalison and Cornwall, upon trust to permit the same to lie used by the person who, by virtue of the will, should, for the time being, be entitled to the mansion-house at Kenward, to the intent that, as far as the rules of law and equity would permit, the same might be as heirlooms for the benefit of the successive owners of the mansion-house ; and for that purpose the testator declared that the same should not vest absolutely in the child of any of his children, until such child should attain the age of twenty-one years. And the testator, after giving directions respecting his farming stock, and giving to his wife all other his personal estate not before disposed of, appointed John Kenward Shaw (who was one of the trustees of the advowsoii), Robert William Shaw (the son who was to be presented with the living, when it became vacant), and John Kenward Shaw Brooke, executors of his will. The testator died in the month of October 1831, and his will was proved by the executors named therein. The contract was entered into by the Plaintiffs, Sir John Kenward Shaw and John Cornwall, the trustees of the advowsoii, as the bill alleged, in concurrence with, or at the request of the executors by John Hayward, their attorney, with the Defendant, [562] William Borrer, for the sale of the advowsoii, at the sum of 8400. The bill was filed by the trustees of the advowsoii and the executors, and it prayed, in addition to the prayer for a specific performance of the contract, that the purchase-money might be paid to the executors. The bill alleged that the testator, at his decease, was indebted to an amount far exceeding the personal estate which he was possessed of, at the time of his decease, and that the Plaintiffs, the executors, were under the necessity of having money raised for the payment of his debts, by the sale of his real estate, according to the direction contained in the will; and that the Plaintiff, Sir John Kenward Shaw, one 424 SHAW V. BORRfiK 1 KEEN 663. of the executors, and also one of the devisees in trust of the advowson, was satisfied of such necessity, and therefore willing, in his character of devisee in trust, to concur with the executors in selling the same for the purpose of paying the testator's debts ; and that the...
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