Carte against Carte
| Jurisdiction | England & Wales |
| Judgment Date | 11 March 1744 |
| Date | 11 March 1744 |
| Court | High Court of Chancery |
English Reports Citation: 27 E.R. 15
HIGH COURT OF CHANCERY
[28] Case 10.-caetb against carte. March 11, 1744. Cestui gue trust of a lease by will directs that his eldest son shall have the disposal of it. He afterwards renews the lease in trustee's name: the renewed lease passes by the devise.(l)-[Lib. Reg. 1744, A. fo. 261. S. C. 7 Hill's MSS. 21, and in Mr. Bound's MSS. tot. Verb. S. C. 3 Atk. 174; Ridgw. 210.] At Lincoln's Inn Hall. Samuel Carte, prebend of Tashbrooke, in 1714, granted a lease of his prebendal lands to one of his children for 21 years, who declared the trust to be for Samuel Carte for life.and then for such purposes as Samuel Carte by deed or will shall appoint. This lease was renewed annually, and on every renewal there was a new declaration of trust executed; the latter renewals and declarations appear to have been all made to and by his daughter [Sarah]. In 1735 he made his will, and directed his eldest son Thomas should have the sole disposal and benefit of this lease, and made him executor and residuary legatee. By a subsequent clause, which was inserted in a void between the close of the will and the signing (and which was contended by plaintiff to have been done [on 24th September] 1739, and to amount to a republication), he takes notice he had made his son Thomas executor and residuary legatee; and declares, that if his son should be molested or disturbed by any prosecution of the government, by which he would incur a forfeiture of his interest, ana' could not be his. executor, he makes his son [Samuel], 16 charts v. carte amb. 29. and daughter Sarah, executors, and gives them what he had given his son Thomas. (See Ward v. Ward, post, 299.) In 1739 [4th of September] a new lease was granted to Sarah, and a declaration of trust was executed by her in the same words as the former had been, and which is now subsisting. The will and clause were proved as one will in the Spiritual Court, without any notice being taken that the clause was inserted after making the will. (2) Lord Hardwicke, C. The general question is, Whether the renewed lease in 1739 passed by the will in 1735 1 [29] There are three matters for consideration. 1st, Whether the will made on the 19th January 1735 was sufficient to pass, not only the trust then in being, but also all subsequent benefit, in case there should be no new declaration of trust 1 And this will depend vupon the new lease being considered a revocation of the will. 2d, Whether the new declaration on the subsequent lease will make any alteration 1 And that depends on the particular penning of the new declaration of trust. 3d, Supposing the will in 1735 to be revoked, either by the determination of the lease, or the new declaration of trust on the new lease, whether here is sufficient evidence of a republi-cation of that will ? As to 1st question, I am clear it is sufficient to pass a subsequent benefit; all the cases cited of revocations of will by surrender of leases have been of legal estates of terms of years, and no one has been determined on the devise of a trust of a term (Marwood v. Turner, 3 Wms. 163,171). The case in Goldsb. 93, and Abney v. Miller (2 Atk. 593), llth June 1743, were so ; and the latter was particularly penned to confine the interest of the devisee to the term then subsisting. If it stood merely on the intent of the testator, it could not be understood, but that when he gave a college lease, he meant all renewed leases; but the intention must stand with the rules of law, and whether it does, depends on the penning of the will. The cases of terms for years differ greatly from a devise of the freehold, and therefore this case is not like that of Bunter v. Gooke (Salk. 237), which depended on the words of the statute of wills, which says, Any person having an estate may devise. The devise of the contingency of a freehold is out of the statute, as has been properly determined in the House of Lords : but that is not the case of a lease, which may be devised though not in possession; so that here is no question as to the ability of the testator to give such future interest; not could there be any, for all the cases of revocation of legacies of terms for years depend on the short penning of the will. As therefore the testator might have used words that would have passed such an interest, the question is, Whether the words of this will are not sufficient with the intention 1 [30] The testator had only the trust estate; he gives by his will the disposal of the lease to his son, which lease was in his daughter's name, by which he must mean to give the trust to his son, and all the profits arising from it; and it was rightly observed at the bar, that the words are to be taken in as large sense as if the lease and declaration of trust were recited;-that he is to take the whole trust, and not the trust only of the then existing lease, but of any renewed lease. The declaration of trust gives him power to surrender the lease, &c. What can he surrender for 1 Not to part with the beneficial interest, but to take a new lease. If the lease and declaration of trust had been recited, there could not have been any doubt, and therefore it must be considered as a devise of the lease, and all subsequent interest. This construction is consistent with the intention of the testator, and all the rules of this Court. Suppose the declaration had been for a particular purpose, and then that general clause, there would have been no doubt in the case; and the naming the persons to take the benefit in another instrument makes no difference; so it would be if it had been declared to be for the benefit of those he had by any deed appointed. If the case rested here, I should think clearly that nothing had been done to defeat the intention of the testator in the will of 1735 ; but the subsequent acts, which appear to have been done ex abundanti cautela, make the greater difficulty. The question therefore is, Whether these new declarations, by reason of their particular penning, amount to a revocation ? It would be hard, with respect to the intention of the testator, if what he did with a view to carry on the same intention, and to preserve the estate in the same manner he had settled it by his will, should work an alteration of it but if the rule of law has such an effect upon it, this Court cannot help it. The testator might have made a writing of disposal which would have been irrevocable, and then it had been out of l. CARTE V. CA&TE 17 his power to defeat it: he has not done so, but made the disposition by will, which in its nature is a revokable act. The question then is, Whether the words [31] in the declaration of trust, " after the death of Samuel Carte, then to such uses, &c., as the said " Samuel Carte shall by will appoint," shall be referred to the operation of the will made antecedent to it, or to a will to be made subsequent 1 (Ward v. Ward, 25 & 26 Feb. 1756, post, 299.) If they shall refer to the former, that is to the operation of the will, as it cannot take effect till the death of the testator, the declaration is well referred; but there is no case to warrant that construction, how reasonable soever it may be ; and I am very unwilling to determine against it; for it may affect copyhold estates surrendered to the use of a will: I have more doubt on this question than on the others, but am not under any necessity to determine it; for whether they have reference to the operation of the antecedent will, or to a will to be made subsequent, if there is a sufficient republication of the will since the time of renewing the lease, and the declaration of trust made thereof, it will discharge me from giving any opinion on that question. It has been said, this Court will follow the rules of law as to revocation of wills by acts contrary to the intention of the testator. The point on which it was put is, that a court of equity will follow the rules of property at common law, and determine on the equitable interest on the same rules as courts of law do as to the legal estate ; but that rule is misapplied : as to the manner of conveyancing, many acts will pass a trust estate that will not pass a legal, such as a declaration, &c. Suppose A. devises his real estate, a feoffment in fee to the use of himself subsequent to the will is a revocation of it (see in Parsons v. Freeman, post, 118, 120, and Sparrow v. Hardcastle, post, 226, and note); but a subsequent mortgage would not be a revocation in this Court, because it is only a security for a debt, and the devisee would take the legal estate subject to that charge. (Sparrow v. Hardcastle, post, 227.) As to 3d question-I am of opinion here is sufficient evidence of a republication. The clause inserted appears to have been so done subsequent to the renewal of the lease, and has been proved in Doctors' Commons as part of the will; and though there are instances of wills being sent to Doctors' Commons to be returned with a more particular probate, yet as this clause or codicil (for so it has been called) has no date to it, it would be...
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