Burgess v Wheate
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1779 |
| Date | 01 January 1779 |
| Court | Court of the King's Bench |
English Reports Citation: 96 E.R. 67
COURTS OF WESTMINSTER-HALL
See S. C. 1 Eden, 177; 28 E. R. 652(with note).
[123] hilary term,-32 geo. II. 24 jan. 1759.-chan. burgess v. wheate. A trust estate is not liable to escheat. In the case of lands held by descent from the paternal ancestor, where the cestui que trust dies without heirs ex parte paterna, the trustee shall retain them for his own benefit, as well against the heir ex parte materua, as against the lord claiming by escheat. 25 March, 22 Car. 2. One thousand years' term. Five hundred years' morb-gate term, vested in Chandler. S. C. 1 Eden, 177 (a)*. [See S. C. 1 Eden, 177; 28 E. E. 652 (with note).] Present, Lord Keeper, Henley ; Chief Justice of the King's Bench, Lord Mansfield; Sir Thomas Clarke, Master of the Eolls. Master of the Rolls. The matters in question between the parties come before the Court in two several causes: one is set down for further directions, in consequence of a reservation in a decree of the late Lord Chancellor, referring a case and several questions to the Judges of the Court of King's Bench, for their opinion. They have certified their opinion to the Lord Keeper, and he seems inclined to confirm that certificate: and òthat cause is now set down for further directions. 68 HILARY TERM, 32 GEO. II. CHAN. 1 BLACK. W. 124. They come before the Court in another cause, on an information filed by the Attorney-General, on behalf of the Crown. The attorney was a defendant in the original cause; so that the information here is in the nature of a cross bill. The case on which the matters arise is this:-Lawrence Bathurst was seised in fee of the manor of Lechlade, &c. in com. Glouc. and he having a mind to raise a sum of money out of part of the estate, by deed 25th March, 22 Car. 2, creates a term of one thousand years, and vests it in trustees, in trust for himself and his heirs, executors, and administrators. [124] Lawrence Bathurst, in his life-time, as he had created a term to raise money, made a mortgage, for five hundred years, of that part of the premisses, for securing the payment of 8001. and 4001., and that mortgage, by several mesne assignments, became vested in John Chandler. Soon after this he died, leaving issue Sir Edward Bathurst, his only son and heir, and two daughters, Ann and Mary; and the premisses descended to his son, subject to the mortgage as to part. The widow of Lawrence Bathurst (Q. how entitled 1) (6)1, after his death, borrowed a sum of money, and assigned over, as a security, the residue of the one thousand years' term. Sir Edward Bathurst died an infant; in consequence of which, the estate descended to Ann and Mary Bathurst, his sisters and co-heirs. Ann intermarried with John Greening, and Mary with John Coxeter; and thereupon the husbands and wives (in right of the wives) became entitled to this estate, in undivided moieties. Greening and his wife made a settlement of their moiety, 21 August, 1686, and covenanted to levy a fine to the use of such persons, &c. as the husband and wife should jointly appoint, by any deed or will duly attested; and for want of such appointment, to themselves for their lives, and the life of the survivor; remainder to the heirs of their bodies; remainder to the right heirs of the survivor. Mich. 1689; Coxeter and his wife filed a bill of partition of the estate; and the usual directions were given on the decree, and also that the incurabrances should be discharged in equal moieties. Afterwards an allotment was made by commission ; and Greening and his wife, being dissatisfied with their allotment, applied to the Court for a new commission; but the other sister, agreeing to give up her allotment, and to make an [125] exchange with her sister, that was accordingly accepted ; and the allotments were exchanged, and conveyances executed. March 1693 ; Ann Greening died, not having joined with her husband in any appointment. In consequence of which, the husband, by the settlement of 1686, became entitled to the inheritance of her moiety. And in December, 1694, he died sans issue, and the moiety descended to Elizabeth Greening, his niece and heir, ex parte paterna, being the only child of Thomas Greening, his eldest brother. She afterwards married with Nicholas Harding, but previous to that marriage, a settlement^)1 was made, on the 15th and 16th August, 1695, of this moiety to the use of the husband for life; then the wife for life; remainder to trustees to preserve contingent remainders; remainder to trustees for ninety-nine years, on a trust that never arose; remainder to their first and other sons in tail male successively ; remainder to trustees for five hundred years, on trusts that never arose; remainder to the right heirs of Elizabeth Greening. Michaelmas 1695; Harding and his wife brought a bill to perfect the partition, and to divide other lands, omitted in the former partition. A decree was accordingly made for mutual conveyances; and a commission issued, to divide the rest of the premisses. And in January, 1698, conveyances were mutually executed. Coxeter died, and his wife survived him; and released her interest, in a moiety of the equity of redemption of the premisses mortgaged, to the mortgagee or some person in trust for him. Harding and his wife do not release their right in the mortgaged premisses, but agree to convey their moiety in the same way, 22 February, 1713. And the mortgagee agrees, that, in consideration of 5001. paid per Harding, he or his trustee shall convey to Harding, his heirs, executors, and administrators, as he should appoint, the mill and closes, with the appurtenances, and the inheritance thereof. [126] 17 February, 1715, Harding and his wife performed their part of the agreement, by conveying a moiety of the mortgaged premisses, in trust for Chandler and his heirs. But the mortgagee does not convey the term and inheritance of the mill and two closes to Harding and his wife and the heirs of the survivor (d)1. But there was a special covenant, that till a conveyance should be executed, he was to stand seised to the same uses : and Harding and his wife continued in possession of the premisses. 11 January, 1718, there being no issue male of the marriage, an indenture was 1 BLACK. W. 127. HILARY TERM, 32 GEO. II. CHAN. 69 made, between Harding and hia wife of the one part, and Sir Francis Page and Robert Simmons of the other part; reciting the settlement, 16th August, 1695, and covenanting to levy a fine, to assure the premisses to the use of the daughters of the marriage, as tenants in common ; and in default of such issue, to Page and Simmons, and their heirs, in trust for the said Elizabeth Harding, her heirs and assigns, to the intent, that she might at any time during her life, without her husband's concurrence, dispose of the reversion of the moiety aforesaid, to such uses as she should, by her will or other writing, appoint, and for no other use, intent, or purpose whatsoever (a)1 A fine was accordingly levied. There was in fact no daughter of the marriage ; but the wife survived the husband, and died without making any appointment, and without heirs on the part of the father, from whence the land descended. But Burgess, the plaintiff in the original cause, was her heir, on the part of the mother. After the death of Elizabeth Harding, Sir Francis Page got into possession ; and in July, 1739, this bill was filed against him by Burgess; and, he dying, it was revived against his personal and real representatives. Bill prayed, that if there was any legal interest in Sir F. Page, he should be compelled to convey to plaintiff, deliver up possession, and account for the rents and profits. Sir F. Page, by his answer, insisted, that he was [127] lawfully seised of the inheritance of the estate, and entitled to the rents and profits. On the 14 July, 1741, the cause came on to be heard, and went off, for want of parties. The Attorney-General was made a party, and the cause came on again before Lord Hardwicke, Chancellor, the 11 February, 1744, when a decree was made, that a case should be settled, and questions stated, for the opinion of the Judges in B. R. The case was argued there, and they have certified their opinions to the Lord Keeper. Qu. 1. Whether by virtue of the indenture of the 11 January, 1718, and the fine therein mentioned, any and what estate in law, did pass to Page and Simmons, or either of them 1 Answ. That by the indenture of the 11 January, 1718, and fine, the reversion in fee-simple after the death of Harding and his wife without issue male, did pass to Page and Simmons. Qu. 2. In case no estate passed to Page and Simmons, or either of them, by virtue of that indenture and fine, whether the inheritance of the premisses, or any part thereof, did, on the death of Elizabeth Harding, descend to Burgess, as heir at law, on the part of the mother? Answ. In case no estate had passed to Page and Simmons, by virtue of the said indenture and fine; we are of opinion, that the inheritance of the premisses in question, or any part of them, would not, on the death of the said Elizabeth Harding, have descended to Burgess, as heir at law on the part of the mother. Qu. 3. In case the said deed of the 11 January, 1718, had not been executed, or the fine levied, but the same were entirely out of the case; whether the inheritance of the said premisses, or any part thereof, would have descended to the said Richard Burgess, as heir at law on the part of the mother? [128] Answ. In case the deed of the 11 January, 1718, had not been executed, or the fine levied, but the same were entirely out of the question; we are of opinion, that, upon the death of Elizabeth Harding, the inheritance of the premisses, or any part thereof, would not have descended to Burgess, as heir at law on the part of the mother. But we are of opinion, that, if the mill, &e. had been conveyed to Nicholas Harding and Elizabeth, his wife, and the survivor of...
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