Bulwer v Astley
| Jurisdiction | England & Wales |
| Judgment Date | 17 April 1844 |
| Date | 17 April 1844 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 692
HIGH COURT OF CHANCERY
S. C. 13 L. J. Ch. 329; 8 Jur. 523. See Preston v. Neele, 1879, 12 Ch. D. 768; In re. Grant, 1883, 52 L. J. Ch. 553. Discussed and followed, In re Muffett, 1888, 39 Ch. D. 534.
[422] bulwer v. astley. May 31, 1843; April 17, 1844. [S. C. 13 L. J. Ch. 329; 8 Jur. 523. See Preston v. Neele, 1879, 12 Ch. D. 768; In re. Grant, 1883, 52 L. J. Ch. 553. Discussed and followed, In re Mu/ett, 1888, 39 Ch. D. 534.] A., by several deeds of the same date, granted, for valuable considerations, several annuities or rent-charges for lives, to be issuing and payable out of certain real estates, of which he was the owner, reserving to himself and his heirs, in each case, a poaver to repurchase the annuity, on payment, at three months' notice, of the original price, together with a half-yearly payment of it in advance. Each annuity was secured by the personal covenant of the grantor, by clauses of distress and entry in case it should be a certain number of days in arrear, and by a warrant of attorney to confess judgment against the grantor for double the original price. And by another deed of even date, which recited the annuities as being respectively subject to "a proviso for redemption or repurchase," the real estates on which they were charged were conveyed to trustees for a term of years, with a power of sale to secure the regular payment of them, and subject thereto on trust for the grantor. The grantor by his will charged his real estates in aid of his personal estate with tha payment of his debts, other than mortgage debts, and, subject thereto, devised them in strict settlement. Held, (reversing the judgment below), that the annuities were to be treated as securities for the repayment of loans, and, consequently, that the value of them (there being no personal assets for their payment) was, by virtue of the will, a charge upon the corpus of the real estates, and that the tenant for life of the real estates, as between him and the remainder-man, was only liable to keep down the interest on such value. William Earle Bulwer, by his will, dated the 21st of February 1803, directed that his funeral and testamentary expenses, and all his debts and legacies, should be paid and satisfied aa soon as conveniently might be after his death. He then gave several pecuniary legacies and annuities, and authorised and empowered his executors to provide funds for answering the several annuities thereby given, either by investing so much money in the purchase of stock in the public funds or on real securities as would produce an annual income sufficient to discharge the same respectively (which money so to be invested was, after the determination of such respective annuities, to return to and become part of his personal estate for the purposes of that his will), or by sinking money in the purchase of annuities during the lives of the annuitants respectively, or by any other advisable method, at the discretion of his executors. He then devised all his real estates to his executors, upon trust, in the first place, to raise by mortgage a sum sufficient in aid of his [423] personal estate, to pay and discharge his debts, except those due on mortgage, and the annuities and legacies thereby given, and his funeral expenses; and upon further trust, out of the annual rents aud profits, to raise and levy the yearly sum of 500 to form an accumulating fund far the payment of the principal of the mortgage debts which should be charged on his real estates at the time of his death, until they were all paid off; and, subject to- such trusty he directed that his trustees should hold the estates on trust for the Plaintiff for life, with remainder for his first and other sons in tail, with several remainders over. At the time of the testator's death, which happened in the year 1807, his real estates were subject to a great number of mortgages, and they were also charged with certain^annuities or rent charges which he had granted by indentures for valuable considerations. 1 PH. 424. BULWER V. ASTLEY 693 By one of those indentures, dated the 22d of August 1806, and made between William Earle Bulwer (the testator) of the one part, and John Bentley and Kirk Boott of the other part, after reciting a memorandum of agreement, dated the 12th of July 1806, by which it was agreed that W. E. Bulwer should on or before the 12th of August then next, or as soon afterwards as conveniently might bo, in consideration of the sum of 3500 to be paid by the said J. Bentley and K. Boott in equal proportions, convey and assure unto the said J. Bentley arid K. Boott as tenants in common, their respective executors, administrators and assigns, an annuity or clear yearly rent charge of JE389 for the lives of four persons to bo nominated by the said J. Bentley and K. Boott, and the life of the survivor, such annuity or rent charge to be charged upon and issuing and payable out of the hereditaments and premises thereinafter mentioned; and [424] that all expenses attending the sale and purchase of the said annuity, and of investigating and perfecting the title to the estates upon which it was to be secured, should be borne and paid by the said W. E. Bulwer; and that it should be lawful for the said W. E. Bulwer, his heirs, executors, administrators and assigns, to repurchase and buy up the said annuity or rent-charge upon the terms and conditions thereinafter mentioned. And further reciting that, in part performance of the said agreement, the said \V. E. Bulwer had executed a warrant of attorney, bearing even date with that indenture, to confess judgment against him at the suit of the said J. Bentley...
To continue reading
Request your trial