Brown v Whiteway
| Jurisdiction | England & Wales |
| Judgment Date | 20 February 1846 |
| Date | 20 February 1846 |
| Court | High Court of Chancery |
English Reports Citation: 68 E.R. 308
HIGH COURT OF CHANCERY
See Van Grutten v. Foxwell [1897], A. C. 684.
[145] brown v, whitbway. Feb. 20, 1846. [See Fan Grutten v. Foxwell [1897], A. C. 684.] Devise to trustees and their heirs upon divers trusts in succession, some requiring the legal estate to remain in the trustees, and others which in themselves would not do so-the whole legal fee remains in the trustees. Devise (before the Statute of Wills, 7 W. 4 & 1 V. c. 26) of lands to certain persons, and of pits and veins of clay under the same lands to other persons, the latter devise passed only the pits and veins of clay open at the date of the will, semble. Whether, since the statute, such a devise would pass pits or veins open at the death of the testator-qucere. The bill stated the will of Thomas Brown, made in 1818, whereby he devised unto Dennis Brown and John Brown, and the survivor of them, his heirs, executors, administrators and assigns, all and every his freehold and leasehold messuages, lands, tenements and hereditaments, to, for and upon the several uses, trusts and confidences thereinafter mentioned, viz., in trust to pay and apply the rents, profits and produce thereof, unto and to the use of his wife Elizabeth, for her life ; and [146] from and immediately after her decease, as to his freehold messuages, lands, tenements and 8 HARE, 147. BROWN V. WH1TEWAY 309 hereditaments at Furzebrook, in the Isle of Purbeck, together with right of common and turbary in Furzebrook Heath, and right of common for sheep on Creech Down, and the appurtenances (save and except thereout the pits and veins of clay therein, together with the rents and profits thereof, which were devised in and by the residuary clause thereinafter contained), in trust, and to and for the use of his daughter Mary, for her life, and, from and after her decease, in trust, and to and for the use of such person or persons, for such estate or estates, &c., as his said daughter Mary should by will devise, limit or appoint, and, in default thereof, in trust, and to and for the use of the heirs of the body of his said daughter Mary ; and in default of such issue, then in trust, and to and for the sole and separate use of his daughter Sophia, for her life, and, from and after her decease, in trust, and to and for the use of the heirs of the body of his said daughter Sophia; but in default of such issue, then in trust, and to and for the use of all and every the children of his brother, Giles Brown, and their respective heirs and assigns, as vested interests, in equal proportions, and as tenants in common. [Then followed a declaration of the trusts of certain premises in Wareham, for the benefit of his daughters and his brother Giles, and their respective children successively.] And, as to his freehold messuages, lands, tenements and hereditaments at Killwood, together with right of common and turbary in Furze-brook Heath, and right for sheep on Creech Down, with the appurtenances (save and except the pits and veins of clay therein, together with the rents and profits thereof, which were devised in and by the residuary clause thereinafter contained), and also his freehold premises at Stoborough, East Moor and East Haws, in trust, to pay the rents and profits and produce thereof unto and to and for the sole and separate use of his said daughter Sophia [147] for her life, and, from and immediately after her decease, in trust, and to and for the use of the heirs of the body of his said daughter Sophia; and, in default of such issue, in trust, and to and for the use of his said daughter Mary for her life, and, from and immediately after her decease, in trust, and to and for the use of the heirs of the body of his said daughter Mary; but, in default of such issue, in trust, and to and for the use of all and every the said children of his brother, Giles Brown, and their respective heirs and assigns, as vested interests, in equal proportions, and as tenants in common; and as to the pits and veins of clay in and upon his lands at Furzebrook and Killwood aforesaid, or either of them, together with the rents and profits of such pits and veins of clay, and the residue and remainder of his real and personal estate and effects, subject to the payment of his debts, funeral expenses, and the charges of proving his will, he gave and devised the same unto the said Dennis Brown and John Brown, and the survivor of them, his heirs, executors, administrators and assigns, upon the trusts and confidences, and to the uses following, viz., upon trust to permit his said wife to receive and take the interest, income, dividends, rents and profits thereof for her life; and from and after her decease, as to one moiety or half part thereof, in trust to pay the income? dividends, interest, rents, produce and profits of such...
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