Briggs v Penny
| Jurisdiction | England & Wales |
| Judgment Date | 07 November 1851 |
| Date | 07 November 1851 |
| Court | High Court of Chancery |
English Reports Citation: 42 E.R. 371
HIGH COURT OF CHANCERY
S. C. 3 De G. & Sm. 525; 13 Jur. 909. See Bernard v. Minshull, 1859, John. 286; Irvine v. Sullivan, 1869, L. R. 8 Eq. 678. Distinguished, Stead v. Mellor, 1877, 5 Ch. D. 227. See In re Fleetwood, 1880, 15 Ch. D. 602; In re Boyes, 1884, 26 Ch. D. 535; In re Eyre, 49 L. T. 260. Cf. In re Hanbury [1904], 1 Ch. 415.
[546] briogs v. penny. June 7, 9, 10, Nw. 7, 1851. [S. C. 3 De G. & Sin. 525 ; 13 Jur. 909. See Bernard v. MinxhuU, 1859, John. 286 ; Irvine v. Sullivan, 1869, L. R. 8 Eq. 678. Distinguished, Stead v. Mdlm; 1877, 5 Ch. D. 227. See In re- Fleetwood, 1880, 15 Ch. D. 602 ; In re Hm/es, 1884, 26 Ch. D. 535; In re Eyre, 49 L. T. 260. Cf. In re Hanbm-y [1904], 1 Ch. 415.] The testatrix, by her will, after giving, among other legacies, a sum of 3000 to S. P. and a like sum of 3000, in addition, for the trouble she would have in acting as executrix, bequeathed all her residuary personal estate and effects unto the said S. P., "well knowing that she will make a good use, and dispose of it in a manner in accordance with my views and wishes :" the testatrix appointed S. P. sole executrix of her will. Held, that S. P. did not take the residue for her own benefit, but that the words of the bequest created a trust. Words accompanying a gift or bequest, expressive of confidence, or belief, or desire, or hope, that a particular application will be made of such bequest, will be deemed to import a trust upon these conditions : first, that they are so used as to exclude all option or discretion in the party who is to act, as to his acting according to them or not; secondly, the subject must be certain ; and, thirdly, the objects expressed must not be too vague or indefinite to be enforced. Vagueness in the object will, unquestionably, furnish reason for holding that no trust was intended, yet this may be countervailed by other considerations, which shew that a trust was intended, while, at the same time, such trust is not sufficiently certain and definite to be valid and effectual. It is not necessary to exclude the legatee from a beneficial interest, that there should be a valid or effectual trust; it is only necessary that it should clearly appear that a trust was intended. This was an appeal by the Defendant Sarah Penny, from a decree made by the Vice-Chancellor Knight Bruce, on the hearing of the cause, declaring that Frances Harley, the testatrix in the pleadings mentioned, for the administration of whose estate the suit was instituted, bequeathed the residue of her personal estate to the Defendant as a trustee, for some purpose or purposes which the will and codicils of the testatrix did not disclose, and directing an inquiry whether the views and wishes of the testatrix, concerning the disposition of such residue, were declared by her by any instrument, paper, or writing, and if the Master should find that they were, then to report the same, but if he should find that they were not so declared, the decree directed the accounts to be taken, and the estate to be administered in the usual manner. Frances Harley, being possessed of considerable leasehold property, and money secured on mortgage of real [547] and leasehold estates, and of other personal property to a large amount, made her will, dated the 13th May 1835, giving divers charitable and other legacies; among the latter, she gave to Sarah Penny 3000, "and a like sum of 3000 in addition, for the trouble she will have in acting as my executrix." The testatrix concluded her will by a devise and bequest in the words and manner following;-" I give and devise all my real estates unto and to the use of the second son of the above named Angelina Owen, his heirs and assigns for ever. And lastly, as to all the rest, residue, and remainder of my personal estate and effects, subject to and chargeable with the aforesaid several legacies and annuities, save and except such of them as are of a charitable nature, which I exclusively charge upon such part of said personal estate as by law I am empowered to charge therewith, and not out of any part of my lands, tenements, or hereditaments, I give and bequeath the same unto the said Sarah Penny, of Great James Street, Bedford Eow, her 372 BRIGGS V. PENNY 3 MAC. * G. MS. executors, administrators, and assigns, well knowing that she will make a good use, and dispose of it in a manner in accordance with my views and wishes. And I hereby appoint the said Sarah Penny sole executrix of this my last will and testament, revoking all former and other wills by me, at any time heretofore made, and declaring this alone to form my last will and testament." On the 19th March 1836 the testatrix executed a codicil altering certain of the bequests in her will: she also wrote a memorandum, to which there was no date, making other bequests. On the 25th November 1848, she died, leaving her brother, the Earl of Oxford, her sole next of kin, who died on the 28th December 1848, leaving the Plaintiffs his sole executors, by whom the will was duly proved. [648] The Plaintiffs, being advised that the will of the testatrix was incomplete and informal in respect of the disposition of her personal estate, opposed the probate; it was, however, ultimately granted of the will, codicil, and memorandum, to Sarah Penny as sole executrix. A great portion of the legacies and annuities bequeathed by the will having lapsed, the residue in the hands of Sarah Penny was very large, amounting to about 70,000; and this residue Sarah Penny claimed to be entitled to take beneficially. The present suit was instituted by the executors of the Earl of Oxford, who insisted that the residue was held by Sarah Penny only as trustee for the next of kin of the testatrix, and that it formed part of the estate of the earl. They submitted by their bill that, under the Act 1 Will. 4, c. 40, Sarah Penny being executrix was thereby constituted a trustee of all undisposed-of residue, on behalf of the next of kin, and could not take beneficially unless an intention to that effect appeared by the will, which intention they denied, urging that a contrary intention appeared from the fact of the legacies given to her. They charged that if such intention should appear by the will, that, nevertheless, Sarah Penny was not intended to take beneficially, but in trust to carry out the wishes and intentions of the testatrix, and that such had been the understanding between the testatrix and Sarah Penny ; that it was the intention of the testatrix to have expressed her wishes and intentions, but that no valid declaration of the same was ever made. The bill charged further, that Sarah Penny alleged that such declaration was made by four paper writings, in the hand-writing of the testatrix, containing her wishes (these papers were without date, and contained charitable gifts and bequests), but the Plaintiffs insisted that these papers were insufficient to create a trust and left the [549] residue undisposed of, and that in consequence the Plaintiffs were entitled. The Defendant, by her answer, insisted on her right to the residue beneficially; and as to the four paper writings she submitted that they could not be regarded for the purpose of the suit, and that the Plaintiffs were not entitled to make use of them; that if, however, the Court should think that the said paper writings did manifest any intention of the testatrix, then that, subject to the trusts declared by those paper writings, the Defendant was entitled to the residue beneficially. The cause was heard before the Vice-Chancellor Knight Bruce, in July 1849, who, on the 6th August, made the decree above mentioned (3 De G. & S. 525), from which the Defendant now appealed to the Lord Chancellor. the solicitor-general, Mr. Malins, and Mr. Walforcl, for the Plaintiffs, and in support of the decree of the Vice-Chancellor. In this case the onus of proof rests on the Defendant to make out a title to this fund for her own benefit. The words "well knowing," which occur in this bequest, and others of a like signification, have frequently been held to create a trust, and we submit that they do so in the present case. It is said, however, that, in order that such an effect may be given to them, the objects of the trust must be certain, which they are not here. The fallacy of this argument lies in confounding cases where a party has been claiming against the trustee with the present case, where the question is simply one of construction, namely, whether Sarah Penny is or is not a trustee. If a trust is declared for purposes undefined, or which partially fail, the trustee cannot take the estate for his own benefit, [550] but there will be a resulting trust for the next of kin. Looking at the whole of the will, it is impossible to suppose that the testatrix meant that Sarah Penny should have this residue beneficially; there is nothing to indicate bounty beyond the words of gift themselves, and the effect of the statute 1 Will. 4, c. 40, has been to make it obligatory on executors to shew a clear intention on the V 3 MAC. ft O. 481. BRIGGS V. PENNY 373 part of the testator that they should take undisposed-of residue for their own use. The gift to Sarah Penny for her trouble as executrix militates against the claim she now sets up. Our contention, thn is stotl^thi: the question being one of intention, we say that the testatrix did not intend to give the Defendant this property beneficially, but as a trustee for purposes not disclosed and which cannot be now ascertained, thus raising a resulting trust for the next of kin. At all events, there is now an opportunity given for shewing these purposes, if they can be shewn, under the deerea appealed from. With regard to the four paper writings, we submit that the Plaintiffs are entitled to refer to them for the purpose of discovering whether there was any contract which would render the trust inoperative, and so create a. resulting...
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