Bright v Larcher
| Jurisdiction | England & Wales |
| Judgment Date | 26 July 1859 |
| Date | 26 July 1859 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 1225
BEFORE THE LORDS JUSTICES.
S. C. 28 L. J. Ch. 837; 5 Jur. (N. S.), 1233. For subsequent proceedings, see Bright v. Larcher, 1859, 27 Beav. 130. See Gee v. Mahood, 1878, 9 Ch. D. 157.
[148] bright v. laroher. Before the Lords Justices. July 27, 1858. [S. C. 28 L. J. Ch. 837 ; 5 Jur. (N. S.), 1233. For subsequent proceedings, see. Bright v. Leather, 1859, 27 Beav. 130. See Gee v. Mahood, 1878, 9 Ch. D. 157.] A testator by his will gave a life annuity which he directed to be issuing out of his real estate until a nephew attained twenty-one, and thenceforth out of his personal estate. He directed the real estate to be sold by trustees (who were also executors of the will), on the nephew attaining twenty-one, and the proceeds to be held upon the trusts thereinafter declared. He also directed the trustees to sell his personal estate, and out of the proceeds to pay his debts, funeral and testamentary expenses and legacies, and to invest the residue, with the surplus rents and profits of the real estate until it was sold, and the proceeds of it after the sale, and stand possessed of the investments upon trust to set apart thereout a fund for payment of the annuity, and on its determination to apply the fund, set apart to answer it, in the same manner as was therein directed with respect to the residue of the personal estate. And he gave the residue of the ttust fund to his nephew. An insufficient fund was set apart to answer the annuity, of which there were consequently arrears at the annuitant's death. Held,- 1. That the legacies were payable out of the proceeds of the real as well as of the personal estate. 2. That the annuity was also payable out of the mixed fund. 3. That the arrears of it were payable out of the fund set apart to answer it. This was an appeal of a Defendant from the decision of the Master of the Rolls upon the construction of the will of a testator named William Bright, dated the 17th of January 1822, the questions being whether an annuity and the arrears of it and certain legacies were payable out of the proceeds of the testator's real estate. C. xxiv.-39* 1226 BRIGHT V. LARCHEE 3DEO. &J.149. By the will the testator bequeathed .£150 to such person or persons as Harriet Offord Hinson should by her, will appoint, to be paid to such person or persons within three calendar months next after her decease. And he gave and bequeathed to her and her assigns for her life, in case she should so long remain unmarried, an annuity or clear yearly rent charge or sum of £50, to be issuing and payable out of all his messuages,, farms, lands, tenements and hereditaments whatsoever, whether freehold or copyhold, until one of the children of either of the testator's brothers, Josias Bright and John Bright, should attain the age of twenty-one years. And he em-[14fl]-powered her to distrain for the annuity (in case it should be in arrear for twenty-one days) upon any of the hereditaments charged with the payment thereof. And he declared that when and so soon as any one of the children of either of his said brothers should attain his or her age of twenty-one years, all his real estate should be discharged from the payment of the annuity to Harriet Offord Hinson, and that the power given to her of distress and entry and perception of the rents and profits of his real estate should cease and be void, it being his will and desire, that from and after that time the annuity should be paid and payable out of his personal estate only, as therein mentioned. And he thereby required Harriet Offord Hinson to execute any release that might be considered necessary by his trustees and executors for discharging his real estate from the payment of the annuity, provided, nevertheless, that in case she should at any time thereafter become married, then, from and immediately after such her marriage, the testator thereby revoked and made void the payment of the said annuity, and in lieu thereof gave to her the sum of £200, to be paid to her within three calendar months next after such her marriage. And he gave to trustees, whom he named and appointed also executors, their heirs and assigns, all and every his freehold and copyhold messuages, farms, lands, tenements and hereditaments in Essex, and all other his real estates whatsoever and wheresoever (subject and charged, nevertheless, and the testator did thereby subject and charge the same to and with the payment of the aforesaid annuity of .£50 to Harriet Offord Hinson, for and during her lite, or until her marriage as before mentioned, until one of the children or either of his said brothers should attain the age of twenty-one years) unto the trustees, their heirs and assigns, upon trust, as soon as any one of the children of either of the testator's brothers, Josias Bright and John [150] Bright, should attain his or her age of twenty-one years, to sell and dispose of all and every the messuages, lands, tenements and hereditaments thereinbefore devised, and to stand and be possessed of and interested in the money arising from the sale or sales, and of the rents, issues and profits of the same hereditaments and premises in the meantime and until such sale or sales should be made as aforesaid upon the trusts thereinafter expressed. And he gave and bequeathed unto the trustees, their executors, administrators and assigns, all his personal estate not thereby specifically bequeathed, upon trust to sell and dispose of and convert into money such part of the personal estate as should not consist of money, Parliamentary stocks or funds of Great Britain, or Government securities or mortgages upon real estates, and should stand and be possessed of and interested in the money into which the same should be so converted, and of and in such part of the same as should consist of money, Parliamentary stocks or funds of Great Britain, Government securities or mortgages upon real estates, upon the trusts thereinafter mentioned. And he thereby declared and directed that the trustees, their executors, administrators and assigns, should stand and be possessed of and interested in all that part of his personal estate which he had directed to be converted into money, and of and in the money, Parliamentary stocks or funds of Great Britain, Government securities or mortgages of or to which he should be possessed or entitled at the time of his decease, upon trust, by and with and out of the same to pay the testator's debts, legacies, funeral expenses and the charges of proving his will and other incidental expenses attending the execution thereof, and lay out and invest in their or his names or name such part of the surplus or residue thereof as should not consist of Parliamentary stocks or public [151] funds of Great Britain, Government securities or mortgages upon real estate, together with the rents, issues and profits of his real estate from the time of his decease until sale thereof, and also all the monies to arise by sale of his real estate thereinbefore devised, in the purchase of a share or shares of the Parliamentary stocks or funds of Great Britain, or at interest upon Government or real securities in England, and should from 3DEO.ftJ.lB. BRIGHT V. LARCHER 1227 time to time, at their or his discretion, alter, vary and transfer the same stocks, funds and securities, and also the Government securities or mortgages of or to which the testator should be possessed or entitled at the time of his decease, which should not be applied for or towards the payment of his debts, legacies, funeral expenses and the charges of proving his will and other incidental expenses attending the execution thereof, and should stand and be possessed of and interested in the said several monies, stocks, funds and securities, and the interest, dividends and annual produce and accumulations thereof...
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