Burrell v The Earl of Egremont
| Jurisdiction | England & Wales |
| Judgment Date | 17 April 1844 |
| Date | 17 April 1844 |
| Court | High Court of Chancery |
English Reports Citation: 49 E.R. 1043
ROLLS COURT
S. C. 13, L. J. Ch. 309; 7 Jur. 587. Followed and explained, Topham v. Booth, 1887, 35 Ch. D. 607. See Patten v. Bond, 1889, 60 L. T. 585. Followed, Lord Gifford v. Lord Fitzhardinge [1899], 2 Ch. 32.
[205] burrell v. the earl of euremont. Dec,. 8, Apiil 17, 1844. [S. C. 13 ,L. J. Ch. 309 ; 7 Jur. 587. Followed and explained, Topham v. Booth, 1887, 35 Ch. D. 607. See Patten v. Bond, 1889, 60 L. T. 585. Followed, Lard Ctiffanl v. Lwd Fitzhardinge [1899], 2 Ch. 32.] A tenant for life, by his will and under a power, charged the settled estates with £25,000 for the portions of his younger children, to be raised by means of a term vested in trustees, payable at twenty-one, and to sink into the inheritance if a younger son should become an eldest, or die without issue before the day of payment, Subject in the first place, to the sums thereinafter charged thereon by hi will, he devised his fee-simple estates to his eldest son for life, with remainders over. He then "gave and bequeathed " an additional £25, 000 amongst his younger children, " which several portions " were to be in augmentation of the " portions " already appointed, to be raised and paid to his said sons and daughters respectively, at such times, and under such conditions, and subject to such contingencies, and with such interest, as he had before directed arid appointed their original portions by that his will. And he thereby charged his fee-simple estates thereinbefore by him devised to his eldest sou, with the raising and paying the said "portwns " and sums of money to his said sons and daughters respectively, at the times and in the manner aforesaid ; and after giving certain pecuniary legacies, he gave the residue of hia pecsonal estate, alter payment of his debts and legacies aforesaid, to his eldest son ; and he provided, that if the personal estate should not extend to pay such of his debts as should not be charged on his real estate and his said legacies, then he charged his fee-simple estates to make good the deficiency, and he empowered his. trustees to raise thereout, not only the sums thereinbefore charged on the said premises for his younger children and such deficiency, but all other sums necessary for the purposes of his will. Held, that the additional portions given to the younger children were a primary, if not an exclusive charge, upon the testator's fee-simple estates devised to the eldest son for life. If a tenant for life pays off a charge on the inheritance, he is primd facie entitled to that charge for his own benefit ; but he may, if he think proper, exonerate the estate. In the absence of evidence, the presumption is, that he pays the-charge for his own benefit, and not for the benefit of the persons entitled in remainder ; but evidence may shew the contrary conclusion to be true. A tenant for life paying off a charge upon the estate, and in the same transaction merging the security, by taking an assignment connecting it with the legal estate of inheritance, prima facie puts an end to the charge; but something is required to mauifest ati intention to exonerate the inheritance. A simple payment of the charge, without more, is sufficient to establish the right of the tenant for life to have the charge raised out of the estate. He has no obligation or duty to make a declaration, or to do any act demonstrating his intention ; the burden of proof is upon those who allege that in paying off the charge, he intended to exonerate the estate. A. B., being tenant for life of the testator's real estates, subject to a charge of £25,000, and absolutely entitled to the residuary personal estate, paid off the charge, and obtained releases. At the time, he seemed to have conceived that, as residuary legatee, he was liable to pay the amount out of the personal estate, which was sufficient for that purpose. Nothing was done to keep the charge on foot. After the death of the tenant for life, it being determined that the £25,000 was a 1044 BURRELL, V. THE EARL OF EGREMONT 7BEAV.208. primary charge on the real estate: Held, that it still subsisted as a charge on the settled estates, for the benefit of the personal representatives of the tenant for life. In 1773 a tenant for life paid off a charge of £25,000 affecting the settled estates. He died in 1837, having in the meantime taken no steps for keeping the charge alive. Held, that notwithstanding more than twenty years had elapsed, and that there had been no part payment or acknowledgment, the charge still existed in favour of his representatives, and had not been defeated by the Statute of Limitations (3 & 4 W. 4, c. 27, s. 40). Held, also, that the statute cannot be applied to a case where there is no assignable person liable to pay the charge, no person who, by the delay, could be induced to suppose that the charge was abandoned or merged, and where the rent, out of which the interest of the charge ought to be paid, is receivable by and belongs to the same person who is entitled to the interest. Principles on which this Court assumes that a tenant for life, who is also the owner of a charge on the inheritance, has duly discharged his duty of keeping down the interest on the charge. The question in this cause was as to the right of the legal personal representatives of a tenant for life of real estates to recover, as against the remainder-[206]-man, the amount of charges upon the estate which had been paid off by such tenant for life. The circumstances which gave rise to the question, were shortly as follows:- 'By the marriage settlement of Charles Earl of Egremont, dated in 1750, a term of years was vested in trustees for the purpose of raising, out of an estate in Yorkshire, the sum of £25,000 for the portions of his younger children. By his will, dated in 1761, Charles Earl of Egremont, appointed this £25,000 for the portions of his younger children, and gave directions as to the payment of interest and the time of payment, and provided that if any younger son should become an eldest son, or if any younger son or daughter should die without issue, before the time of payment, his or her portion should sink [207] into the inheritance charged therewith, and not be raised or paid. He then devised his estates in Somerset, Dorset, and Cornwall (subject in the first place to the raising and paying the annuities and sums of money then affecting the same, or thereinafter charged thereon by that his will, or any codicil he should thereafter think fit to add thereto), unto his eldest son George, and his assigns, for life, with various remainders over, under which the Defendant, the present Earl of Egremont, had become entitled to the estates in possession. He then gave as follows:-" I give and bequeath to my daughters Elizabeth and Frances the sum of .£10,000 a-piece, and to my sons Percy Charles and Charles William £2500 a-piece, which several portions I will shall be in augmentation of, and as an addition to, the portions already provided for them by my said marriage settlement, and hereinbefore appointed to be paid to them as aforesaid, and shall be raised and paid to my said sons and daughters respectively, at such times, and under such conditions, and subject to such contingencies, and with such interest, as I have before directed and appointed their original portions to be raised and paid by this my will. And I do hereby subject and charge my manors, &c., and hereditaments in the several counties of Somerset, Dorset, and Cornwall hereinbefore by me devised to my eldest son, with the raising and paying the said portions and sums of money to my said sons and daughters respectively, at the times, and in the manner aforesaid." After gifts of the mansion-houses, and of an annuity of £300, and of certain personal estate as heirlooms, the testator gave certain pecuniary legacies, which he directed to be exclusively paid out of certain particular parts of his personal estate. And then he gave all the residue of his personal estate, after payment of his debts and funeral expenses, and the legacies afore-[208]-said, to his eldest son ; and he added a proviso, that if his personal estate should not extend to pay such of his debts as should not be charged on his real estate, and his said funeral expenses and legacies, then he charged his estates in Somerset, Dorset, and Cornwall, in aid and to make good any deficiency that might happen in his said personal estate. " And for that 7BEAV.M9. BURRELL V. THE EARL OF EGREMONT 1045 end and purpose," he empowered the trustees to raise by sale or mortgage of the estate, and pay, " not only the sums of money and portions thereinbefore by him charged and secured on the said premises, for his younger children, and such deficiency as should happen in his personal estate to pay his debts and legacies," but also such sums of money as should be necessary for the other purpose in his will mentioned. Earl George attained his age of twenty-one in the year 1772, and in May 1773 he, out of his own monies, paid the original and additional portions of his sister Lady Elizabeth, and on that occasion the real and personal estate of Earl Charles were released. In 1776 Earl George, out of his own monies, paid the original and additional portions of Lady Frances, and obtained a release, as heir of the body and executor of his father. In 1778 and 1781 respectively, he in like manner paid the original and additional portions of Percy Charles, and Charles William, who thereupon executed releases. (NOTE.-The deeds executed on these occasions are more fully stated in the judgment of the M. E., post, 227, 228, 229, 230.) During his life Earl George did not indicate whether he intended the additional charges paid off by him to merge for the benefit of those entitled in remainder or not. Earl George died in 1837. By his will he, amongst other things, devised his hereditaments in the counties of...
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Between Robert Knight since deceased and His Executors by amendment, and Richard Tomkinson, Plaintiffs; and George Bowyer, John Thomas Groves and Emma, his Wife, Charles Pugh, The Rev George Frazer Mathews and Ann Martha, his Wife, late Ann Martha Bridger, Edward Kynaston Bridger, Wilson Lomer, Charles Bridger, Charles King, Alexander Donovan, Samuel Sturgis, William Whitfield, Harriett Huntingford (since dismissed), John Samuel Bowles, George Warner, The Rev. John Tunnard, Clerk, John Taylor, John Matthews, and Sir George Bowyer, Baronet, Defedants
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