Brudenell and Brooks against Elwes and Others
| Jurisdiction | England & Wales |
| Date | 1801 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 171
IN THE COURT OF KING'S BENCH.
Referred to, Holmesdale v. West, 1866-70, L. R. 3 Eq. 483; 4 H. L. 543; Eastwood v. Avison, 1869, L. R. 4 Ex. 145. Followed, In re Harding [1894], 3 Ch. 320. Referred to, In re Mortimer [1905], 2 Ch. 513.
brudenell and brooks against elwes and others. Tuesday, May 12th, 1801., A power of appointment under a marriage settlement unto and among all or any the child or children of the marriage for such estates as the husband and wife, or the survivor of them, should from time to time, either with or without power of revocation, direct, limit, or appoint, may be executed by the survivor, after a joint appointment reserving to them and the survivor a power of revocation and appointment.- But under such power, if the second appointment be to the daughter of the marriage for life, remainder to the eldest son for life, remainder to trustees to preserve contingent remainders, remainder to the first and other sons in tail, &c. remainder to the daughter in fee, all the limitations subsequent to that to the eldest son for life are void, as being an excess beyond the power; and the ultimate remainder dependant upon such intermediate limitations, though made in favour of one of the objects of the power, is also void; and shall not be accelerated by the event of such void intermediate limitations, not having taken effect, for want of issue male of the eldest son, &c. to whom the appointment was made. For an appointment not good in its creation will not become so by subsequent circumstances. And such an appointment, being by deed, cannot be construed cypres, so as to give the sons estates tail, as perhaps might have been the case if the appointment had been by will. [Referred to, Holmesdak v. West, 1866-70, L. R. 3 Eq. 483; 4 H. L. 543; Eastwood v. Avison, 1869, L. R. 4 Ex. 145. Followed, In re Harding [1894], 3 Ch. 320. Referred to, In re Mortimer [1905], 2 Ch. 513.] By articles of agreement, dated the 16th of Dec. 1730, made previous to and in contemplation of the marriage of Jerningham Chevely with Louisa Mary Jamineau, [443] John Cheveley the father and Jerningham Cheveley covenanted with John and Isaac Jamineau (trustees therein named) and their heirs, &c. that they would, within six months after the marriage, convey and assure the manor of Garlands and certain other lands in Essex therein mentioned, to the use of Jerningham Cheveley for life, remainder to Louisa Mary for life, remainder to the trustees and their heirs, upon trust to convey and assure all or any part thereof unto and among all or any the child or children of the body of Jerningham Cheveley on the body of Louisa Mary to be begotten, in such parts and proportions, and for such estate and estates, and with and under such charges, provisoes, conditions, and limitations as Jerningham Cheveley and Louisa Mary or the survivor of them should from time to time by any deed or writing, either with or without power of revocation, to be by him, her, or them duly signed and sealed in the presence of three or more credible witnesses, or by his or her last will in writing testified in manner aforesaid, direct, limit, or (a) 1 Term Rep. 11, and vide Cottwigham.v. King, 1 Burr. 625. Ejectment for messuages, lands, &c. in Ireland with the town and tenement of B. and held well after verdict; as such denominations of land might be known there. (6) 2 Stra. 834. (c) 3 Wils. 23. See also Popham, 197. March, 96, and several cases where an ejectment for a messuage or tenement was also holden bad after verdict. Noy, 86. 3 Mod. 238. 1 Sid. 295. 1 Ld. Ray. 191, and qto. Barnes, 173. 172 BRTJDENELL V. BLWES I EAST, 444. appoint: and in default of such appointment, to the use of the first and other sons of the body of Jerningham Cheveley on the body of Louisa Mary Jamineau in tail male successively; remainder to trustees upon divers trusts, (which are since become incapable of taking effect;) remainder to the right heirs or Jerningham Cheveley for ever. The marriage took effect: and by indentures of lease and release of the 20th and 21st of September 1768, made between Jerningham Cheveley and Louisa Mary his wife of the one part, and Isaac Jamineau (the surviving trustee) on the other part, reciting the said articles, and that there was issue of the marriage then living two sons, namely, Jamineau and Jerningham Cheveley, and a daughter Jane Cheveley, all of whom had respectively attained [444] the age of 21 years; Jerningham Cheveley the Elder (his father John Cheveley being dead) granted and conveyed unto Isaac Jamineau and his heirs the manor of Garlands and other lands mentioned in the articles, to the use of him the said J. C. the Elder for life; remainder to the use of L. M. his wife for life, by way of jointure; remainder to the use of all or any the child or children of the body of J. C. the Elder on the body of Louisa his wife lawfully begotten and to be begotten, in such parts or proportions, and for such estate and estates, and with and under such charges, provisions, conditions, and limitations, as J. C. the Elder and L. M. his wife, or the survivor of them, should from time to time by any deed or writing, either with or without a power or revocation, to be by him, her or them duly signed and sealed in the presence of three or more credible witnesses, or by his or her last will in writing testified in manner aforesaid, direct, limit, or...
To continue reading
Request your trial
-
Monypenny v Dering
...103, et seq. 9C. B.806. . MONYPENNY V. DEBING 1109 Humberston (1 P. Wms. 332), Robinson v. Hardcastle (2 T. E. 241), Brudenell v. Elwes (1 East, 442, 451), Routledge V, Dorril (2 Ves. jun. 357, 364), Vanderplarik v. King (3 Hare, 1), Butler's note in Fearne Cont. E. 10th edit. 206, Williams......
-
Vanderplank v King
...confine the cy pres doctrine within the strictest limits: it is not applicable to a deed: Adams v. Adams (Cowp. 651), Brudenell v. Elwes (1 East, 442 ;-S. C..7 Ves. 382): nor where the limitation to the children of the unborn persons would give them an estate in fee-simple : Bristow v. Ward......
-
Gooch v Gooch
...(3 Ves. 730), Whitbrecul v. Lord St. John (10 Ves. 152), Mogg v. Mogg (\ Mer. 654), Leake y. Rchinum (2 Mer. 363), Bnulenell v. Elwes (1 East, 442), 148 GOOCH V. GOOCH 3DBO.M.&O.380. Starrs v. Benbmu (2 Myl. & K. 46), Lomas v, Wright (2 Myl. & K. 769), Sadler v. Pratt (6-. Sim. 632), .Buffe......
-
D'abbadie v Bizoin and Others
...The Duke of Portland v. TophamENR 11 H. L. C. 32. Swift v. GregsonENR 1 T. R. 432. Kenworthy v. Bate 6 Ves. 793. Brudenell v. ElwesENR 1 East, 442; 7 Ves. 382. Ward v. TyrrellENR 25 Beav. 563. Spring v. BilesENR 1 T. R. 435, n. Macey v. ShurmerENR 1 Atk. 389. Wollen v. Tanner 5 Ves. 218. Ra......