Carter v Carter
| Jurisdiction | England & Wales |
| Judgment Date | 05 December 1748 |
| Date | 05 December 1748 |
| Court | High Court of Chancery |
English Reports Citation: 27 E.R. 961
HIGH COURT OF CHANCERY
[168] garter v. garter, Nov. 26, 1748. Devise to trustees from and immediately after determination of precedent estates, to use of A. in fee, charged and chargeable with legacies, to be paid in twelve months : they run over all the precedent estates as well as the fee.-[Supplement, 96.] John Carter, January 6, 1743, made his will devising the premises to trustees, their heirs and assigns, to receive the rents and profits, and to pay them to his wife from time to time, as they became due, whether covert or sole, to her sole and separate use, and that her receipts should be a sufficient discharge and on further trust to permit her to charge the premises with 200 for such use, &c., or person, &c., as she, whether covert or sole, shall, by her last will, or any writing purporting a will, limit, direct, or appoint: and after her death to the use of a brother for life, and afterwards to another brother for life charged and chargeable as aforesaid ; and immediately from and after the determination of those estates, to the use of his nephew, his heirs and assigns for ever, charged and chargeable with 100 a-piece to his six nieces, to be paid to them respectively within twelve months after his decease, and to be raised by the trustees in like manner. The testator being dead above twelve months, the nieces bring a bill for their legacies, and the question was, what estate was charged therewith ; whether only the limitation in fee to his nephew, or whether they run over all the estates for life as well as the fee 1 Lord Chancellor. This is a matter of some doubt on the construction of the will. It is oddly expressed: and there are words favouring the construction restraining it to the last limitation in fee : and yet if a particular reason can be shewn on the intention of the testator and frame of the will for dividing this charge from the other, it may answer the objection for the defendant. The general rule is, that charged and chargeable runs over all the estate, as well particular, as the fee ; as suppose, at the end he had said, charged with all my debts; it would be a charge on all, and the direction within twelve months is an argument in favour of that intent; and shews, he intended these legacies should take place in some way before the reversion in fee to his nephew ; and therefore they cannot be put on a level, as he has not said it. One or other of these constructions must...
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