Cartwright v Shepheard
| Jurisdiction | England & Wales |
| Judgment Date | 21 December 1855 |
| Date | 21 December 1855 |
| Court | High Court of Chancery |
English Reports Citation: 51 E.R. 1049
ROLLS COURT
[301] CARTWRUiHT V. SHEPHEARD. July 7, 1853. The testator appointed A., B. and C. his executors and trustees, aud devised and bequeathed to them his real and personal estate in trust. By a codicil, he desired that A., named in his will as " executor," be no longer such, and he nominated D. 1050 FORD V. BATLEY 17 BEAV. 302. to succeed him, but he made no alteration in the devise. Held, that A. still remained a trustee of the will. The testator appointed A., B. and C. to be trustees and executors. He revoked the appointment of C. as executor and trustee by his first codicil. By a second codicil he revoked the appointment of B. and C. as executors, but ratified his will except aa altered thereby. Held, that the first codicil was not revoked, and that C. was not a trustee. The testator, by his will, appointed Shepheard, Cartwright and Kinder, trustees and executors of his will, to whom he bequeathed a legacy for their trouble. And he devised and bequeathed his real and personal estate to them upon certain trusts. By his first codicil, after reciting his will, he revoked the appointment of Kinder aa executor and trustee, and he devised and bequeathed his real and personal estate to Shepheard, Cartwright and Newport, upon the trusts declared by his will, and he appointed Newport one of his executors. By a second codicil, he expressed himself thus : I desire Samuel Cartwright and William Kinder, named [302] in my will as my executors, be no longer regarded as such, and in their place I nominate C. Cave and R. Ellis to succeed them." " And I ratify and confirm my said will, except as the same is altered hereby." The question was, whether the Plaintiff Cartwright, though his appointment as executor had been revoked, was still a trustee of the will. Mr. Bevir, for the Plaintiff, argued that the revocation was limited to the office of executor, and that the character of trustee remained. He cited Graham v. Graham (16 Beav. 550). Mr. E. Palmer, Mr. Roupell and Mr. Renshaw, contr&, contended that the Plaintiff was neither executor nor trustee; that the two characters were inseparably connected; and that the testator had, in a short way, expressed his intention of excluding him from both offices. Mr. Dickinson and Mr. Giffard, for other parties. the MASTER OF the rolls. Your argument must go to this extent, that the second codicil revoked the devise to the Plaintiff. I am of opinion that...
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... ... ] MLJ 143; [1962] AC 294; [1962] 1 All ER 494 (distd) Scawin v Scawin (1841) 1 Y & CCC 65; 62 ER 792 (refd) Shepherd v Cartwright [1955] AC 431 (folld) Warren v Gurney [1944] 2 All ER 472 (refd) ... K A O'Connor (Drew & Napier) for the plaintiff ... C H Smith ... ...
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