Brassey v Chalmers Seacome v Holme
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1853 |
| Date | 01 January 1853 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 613
BEFORE THE LORDS JUSTICES.
S. C. 16 Beav. 223. See In re Frith and Osborne, 1876, 3 Ch. D. 627.
[528] brassey v. chalmers. seacome v. holme. Before the Lords Justices. Feb. 23, 25, July 25, 1853. [S. C. 16 Beav. 223. See In re Frith and Osbm-ne, 1876, 3 Ch. D. 627.] tiemble, that a devise oil trust to sell and dispose of property, consisting partly of an undivided share, does not authorize the trustees to concur in a partition. But where trustees had, under such a trust, concurred in a partition which was shewn to be beneficial to the cestuis que trustent, who were infants, the Court, on a claim to which the infant cestuis que trustent were parties, made a decree that the lands should be taken to be divided according to the partition already made. A testator devised land subject to payment of his debts to A. and B., their heirs and assigns, and he authorized his executors thereinafter mentioned, with the approbation 614 BRASSEY V. CHALMERS 4 DE Q. M. & 0. BM. of his trustees for the time being, to sell any part of his estates. Held, that the surviving executor, with the assent of trustees appointed by the Court of Chancery (iii whom the devised lands were vested by a vesting order), could make a good title. This was an appeal from the decision of the Master of the Rolls upon a special case. The hearing below is reported in the 16th Volume of Mr. Beavan's Eeports (page 223). The questions for the opinion of the Court were:- 1. Whether a deed of partition was valid and binding as against persons claiming or beneficially interested under the wills of three testators, one of those wills (that of a testator named William Fairhurst) containing no specific power to concur in a partition. 2. Whether the will of another of the above testators, named Joseph Harrison, empowered his surviving executor, with the assent of trustees appointed under the Trustee Act, 1850, to sell the estates devised by that will. The following were the material facts with reference to the questions decided upon the appeal. On the 3d of February 1832, Joseph Harrison, Thomas Harrison and William Ravenscroft agreed to purchase lands at Birkenhead. The agreement was entered into by Joseph Harrison, so far as regarded his [529] share and interest in the intended purchase for the common benefit of himself and of William Fairhurst equally, and William Fairhurst paid and contributed his due proportion of the purchase-money for the lands, being one-sixth part thereof. Joseph Harrison died in 1832, having made his will, dated the 1st of July 1832, which was as follows:-" I give and devise all my freehold estates, subject to the payment of my debts and legacies, unto and to the use of William Ravenscroft, of Birkenhead, merchant, and John Fisher, of Liverpool, wine and spirit merchant, their heirs and assigns, upon the trusts hereinafter mentioned. I direct all my contracts for the sale or purchase of property to be fulfilled. I authorize and empower my executors hereinafter mentioned, with the approbation of my trustees for the time being, to sell and dispose of, by private contract or public auction, from time to time, all or any part of my said freehold estates, and to exchange the same, or any part thereof, for other freehold or leasehold property of equal value, or which may, by the payment of money on either side, be made of equal...
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Re Fisher and Haslett
...testator's just debts should be paid without (1) 1 J. & H. 303. (2) 6 Exch. 223. (3) L. R. 8 Ch. Ap. 971. (4) 15 Ir. Ch. Rep. 337. (5) 4 De G. M. & G. 528. (6) 2 Sim. ESL 238. (7) 1 Phill. 717. (8) 6 A. & E. 206. (9) L. R. 3 Eq. 323. (10) 11 M. & W. 630. (11) 17 Beay. 592; on Appeal, 5 De G......
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Brassey v Chalmers
... ... and others, who should not be bound to see to the application of the monies therein expressed to be received; and he appointed Thomas Seacome and the Plaintiff Thomas Brassey executors of his will. The testator died in 1832, his executors proved his will and his trustees accepted the ... , died prior to 1844, William Eavenscroft died in 1849, and Fisher in August 1851; and by an order of this Court, made iu December 1851, Samuel Holme and John Eavenscroft were appointed trustees of the will of the testator, and his real estates were vested in them. In 1852 Brassey, the surviving ... ...