Browne v Browne
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1856 |
| Date | 01 January 1856 |
| Court | High Court of Chancery |
English Reports Citation: 65 E.R. 783
HIGH COURT OF CHANCERY
S. C. 26 L. J. Ch. 635; 3 Jur. (N. S.) 728; 5 W. R. 777. Dissented from, Holmes v. Prescott, 1864, 33 L. J. Ch. 264; Price v. Hall, 1868, L. R. 5 Eq. 403; Jull v. Jacobs, 1876, 3 Ch. D. 713; Patching v. Barnett, 1880, 49 L. J. Ch. 669.
[568] browne v. browne. Nov. 11, 12, 15, 17, 1856; June 25, 1857. [S. C. 26 L. J. Ch. 635; 3 Jur. (N. S.) 728 ; 5 W. E. 777. Dissented from, Holmes v. Prescott, 1864, 33 L. J. Ch. 264; Price v. Hall, 1868, L. E. 5 Eq. 403; Jull v. Jacobs, 1876, 3 Ch. D. 713; Patching v. Barnett, 1880, 49 L. J. Ch. 669.] 1. Devise to trustees, to the use of A. for life, remainder to all and every his child or children who shall attain 21, as tenants in common in fee, and if only one such child, for such only child in fee-simple. But in case A. should die without leaving lawful issue, then to B. for life, with remainder over. Held, that upon the death of A., leaving an only child, an infant, such child took an estate in fee-simple, vested but liable to be devested in the event of his dying under 21. 2. Words of contingency in a gift have no stronger or more uncontrollable force when applied to the description of a person than when applied to the description of an event. 3. The case of Festing v. Allen, irreconcileable with decisions of the House of Lords in Eandall v. Doe, and other eases. The Eev. William Frederick Browne, of Launton, Oxfordshire, D.D.., by his will, dated the 31st of August 1835, made the following disposition :- " I give, devise, bequeath, direct, limit and appoint, all my freehold, leasehold and 784 BROWNE V. BROWNE 3 SM.& GIEF. 569. copyhold estates, at and situate, &c., &c., unto Thomas Lewis Goker, Esq., late of Bicester, but now residing at Cheltenham; William Davis, of Bicester, surgeon, and Henry Tubb, of Bicester aforesaid, banker, upon trust for my son, William Frederick Browne, and his assigns, during the term of his natural life, and to permit him to receive the rents, issues and profits thereof, he, my said son, cutting down no more timber than what may be required for repairs, and subject nevertheless, to the payment by him of the sum of 6000, covenanted to be paid by me to the trustees under my said son's marriage settlement, in manner as therein mentioned, and from and immediately after his decease upon trust for, and for the use and benefit of all and every the child and children of him, my said son, Wil-[569]-liam Frederick Browne, lawfully begotten or to be begotten, and who being a son or sons shall respectively attain the age of 21 years, and who being a daughter or daughters shall live to attain that age or be married, equally to be divided between and amongst all such children, if more than one, share and share alike as tenants in common, and not as joint-tenants, and their heirs and assigns for ever, and if there shall only be one such child, then in trust for such only child, his or her heirs and assigns for ever; but in case my said son shall die without leaving lawful issue, then in trust for and for the use and benefit of my grandson Eichard Staples, and his assigns for and during the term of his natural life, and to permit him and them to receive the rents, issues and profits thereof, as well those which may be due from the respective tenants at the time of my said son's decease as those to accrue due, and from and immediately after his decease, in trust for and for the use and benefit of all and every the child and children of him, my said grandson Eichard Staples, lawfully begotten at the time of my said son's decease, or to be lawfully begotten at any time afterwards, and who being a son or sons shall respectively attain the age of 21 years, and who being a daughter or daughters shall live to attain that age or be married, equally to be divided between and amongst all such children, if more than one, share and share alike as tenants in common and not as joint-tenants, and their respective teirs and assigns for ever; and if there should be only one such child, then in trust for such only child, his or her heirs and assigns for ever; but in case my said grandson, Hichard Staples, shall die without leaving lawful issue, then in trust for and for the use and benefit of my grandson William Frederick Browne Staples and his assigns, for and during the term of his natural life, and to permit him and them to receive the rents, issues and profits thereof, and from and immediately after his decease in trust for and for the use and benefit of all and every the child and children of him, my 570] said grandson William Frederick Browne Staples, lawfully begotten at the time of my said grandson, Eichard Staples', decease, or to be lawfully begotten at any time afterwards, and who being a son or sons shall respectively attain the age of 21 years, and who being a daughter or daughters shall live to attain that age or be married, equally to be divided between and amongst all such children, if more than one, share and share alike as tenants in common, and not as joint-tenants, and their respective heirs and assigns for ever; and if there shall be only one such child, then in trust for such only child, his or her heirs and assigns for ever; but in case my said grandson William Frederick Browne Staples shall die without leaving lawful issue, then in trust for and for the use and benefit of my other grandson Charles Staples (meaning the above-named Defendant, Charles John Staples) and his assigns for and during the term of his natural life, and to permit him and them to receive the rents, issues and profits thereof, and from and immediately after his decease in trust for and for the use and benefit of all and every the child and children of him, my said last-named f randson, Charles Staples, lawfully begotten at the time of my said grandson, William rederick Browne Staples', decease, or to be lawfully begotten at any time afterwards, and who being a son or sons shall respectively attain the age of 21 years, and who being a daughter or daughters shall live to attain that age or be married, equally to be divided between and amongst all such children, if more than one, share and share alike as tenants in common, and not as joint-tenants, and their respective heirs and assigns for ever; and if there shall be only one such child, then in trust for such only child. Provided always, and I do hereby direct that in case my farm at Launton, now in my own occupation, should be so occupied by me at the time of my decease, then and in that case I give and bequeath unto my said son, William Frederick Browne, all 571] my crops, stock of corn, grain, hay, horses, cattle, sheep, implements of 3 SM. & GIFF. 572. BROWNE V. BROWNE 785 husbandry, and farming stock of every kind, quality and description, to and for his own absolute use and benefit, and to be enjoyed by him with the said farm given, and to receive from the respective tenants of my before-named freehold, copyhold and leasehold property, upon his "coming into possession or into the receipts of the rents and profits thereof, all arrears of rent which may be due in respect of the same, up to the time of my decease; and I do hereby further direct that every person who by virtue of this my will shall become entitled to the possession or to the receipt of the rents and profits of the freehold, as well as leasehold, hereditaments and premises so given and devised, directed, limited and appointed, to my said son, William Frederick Browne, shall and do within the space of one year next after such persons shall become entitled to the possession, or to the rents and profits of the said freehold, copyhold and leasehold hereditaments and premises as aforesaid, take upon him and them respectively and use in all deeds, letters, accounts and other writings, the surname of ' Browne,' in addition to their own, and quarter the arms of Browne with and to their own respective family arms : and in default thereof, and in case of such person or persons' refusal, the said freehold, copyhold and leasehold hereditaments and premises shall immediately thereupon devolve to the person next beneficially entitled. And I do hereby further declare and direct that it shall be lawful for my said trustees, and the survivor of them, and the heirs and assigns of such survivor, immediately after the decease of my said son, William Frederick Browne, to ask, demand and receive all the rents which may be then due, and all rents, issues and profits to accrue due, and pay and apply the same towards the maintenance and education, or advancement in life, of the person next beneficially entitled thereto, as they, or either of them in their discretion shall deem expedient. Provided always, [572] and I do hereby declare my will and mind to be, and that it shall and may be lawful to and for my said son, William Frederick Browne, during his life, and after his decease then to and for my said trustees and the survivor of them, and the heirs and assigns of such survivor, by indenture or indentures duly executed under his or their hand and seal, or hands and seals, to demise, lease or grant all or any part of my said farms, lands and other hereditaments, unto any person or persons for any term or number of years absolute, not exceeding fourteen years, to take effect in possession, and not in reversion, or by way of future interest; so as there shall be reserved in every such demise, lease or grant, the best or most improved yearly rent or rents that can be reasonably bad or gotten for the same, without taking any fine, premium or foregift, or anything in the nature of a fine, premium or foregift, for the making thereof; and so as there be contained in every such demise or lease a condition of re-entry for non-payment of the...
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