Catherine Martha Mellish against William Mellish, Edward Mellish, and Thomas Mellish
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1824 |
| Date | 01 January 1824 |
| Court | Court of the King's Bench |
English Reports Citation: 107 E.R. 477
IN THE COURT OF KING'S BENCH.
S. C. 3 D. & R. 804; 2 L. J. K. B. O. S. 45.
catherine martha mellish against william mellish, edward mellish, and thomas mellish. 1824. A. being seised in fee of an estate called H., subject to a mortgage for years, by his will, (in which there was a statement in figures of the amount of the estimated value of his entire property, of the sum which his wife had brought him on his marriage, and of the sum which he himself had settled upon his marriage, and of the estimated value of the estate at H.,) directed that his daughter C. M. should have the disposal of the sum which he himself had settled on his wife, and in case she did not dispose of it, that it was to go to certain persons therein named. He then desired that H. should go to his daughter C. M. as follows : in case she married and had a son, to go to that son ; in case she had more than one daughter at her husband's or her death, and no son, to go to the eldest daughter ; but in case she had but one daughter or no child at that time, he desired it might go to his brother W. M. He then gave specific legacies nearly to the amount of the sum which remained, after deducting the money settled on his marriage and the value of the estate at H. And he directed that his daughter should pay an annuity to a person therein named for life ; and then he made his brother W. M. his sole legatee : Held, that C. M. 478 HELLISH V. HELLISH ,2B. & C, 521. took an estate in tail male in H., with a reversion in fee, subject to the other estates created by the will. [S. C. 3 D. & K. 804; 2 L. J. K. B. 0. S. 45.] This case was sent by the Lord Chancellor for the opinion of this Court. John Mellish being seised to him and his heirs in fee simple of a capital messuage and other hereditaments, situate in the county of Hertford, arid known by the general name of Hamels, subject to a mortgage for a term of years, made his will, which was duly executed by him, and of which the following is an exact copy and imitation, both in words and figures : that is to say, Marriage settlement, 12,500 C. P. 120,000 Do. 25,000 J. M. 120,000 37,500 80,007 Hamels 43,000 40,000 80,500 [521] Catherine Mellish to have the disposal of the 25/m.; in case she does not dispose of it, I wish it to go to as follows; 5/16 W. M., 5/16 E. M., 3/16 T. M., 3/16 A. G-. The mortgage on Hamels to be paid off as soon as William Mellish can do it without prejudice to the business. Hamels to go to my daughter Catherine Mellish as follows : in case she marries and has a son, to go to that son ; in case she has more than one daughter at her husband's or her death, and no son, to go to 'the eldest daughter ; but in case she has but one daughter, or no child at that time, I desire it may go to my brother William Mellish. * C. H. M. 5,000 (3,000.) W. M. 10,000 * These initials E, M. 7,000 mean my daughter, A. G. 5,000 my three brothers, J. M. 5,000 and my sister. 30,000 * 500 J. L. Bonhote. I give as follows : 200 Dessoulary. 200 Mouchet. 40 40 Bentley, Miss S. Salmon 200. 50 J. Bonhote. 20 Macdonald. 1,010 * I desire that one thousand pounds of the three thousand pounds left her may be paid to my daughter, immediately on my decease. Mrs. Pinfold to receive 2001. a year from Catherine Mellish, during the life of Mrs. Pinfold ; a year's wages to all my household servants, and likewise to Webster, and I desire mourning may be given to all my servants, the same as at my dear wife C. M.'s death. I leave' my dear brothers W. M., E. M., and J. M., my sole executors and guardians of my child Catherine Mellish, and I leave my brother, William Mellish, my sole legatee. The testator departed this life on or about the 9th day of the month of April, 1798, without having re-[522]-voked or altered his said will, leaving the said Catherine Martha Mellish, in the said will called Catherine Mellish, the plaintiff, his only child, and heir at law. The question was, what estate and interest the said Catherine Martha Mellish took in Hamels. Preston, for the plaintiff. Catherine Mellish took, under the will, an estate in tail male in Hamels. This construction will best answer the general intention of the testator; any other construction would place this property in a line of enjoyment contrary to his will. The first object of the testator's bounty is his own daughter. In contemplating her marriage he also provides for a son of the daughter; he does not name that son as an individual, but as a class, the word son being descriptive of all 2B.&C.523. HELLISH V. HELLISH 479 the male line. If the daughter take only an estate for life, it would follow as a consequence, that if she had one son and several daughters, and, during her life, the son died, leaving a son, the grandson would be excluded by a daughter; and if the inheritance be suspended until her death, and is to vest only at that period, and she left a grandson and no son, then the grandson could not take ; and if there be more than one daughter, at her husband's death, or her own death, and no son, the property would go to the eldest daughter, in exclusion of a grandson; and if there be only one daughter, and no son at that period, the estate would go to William Mellish. Therefore, if Catherine Mellish had several daughters, and one son, and he had a son, and died in his mother's life-time, the eldest of the daughters would take in preference to the grandson ; and if Catherine Mellish had, at her death, only one daughter, but a grandson, descending from a son, William Mellish would [523] take, and the grandson be excluded. Such an intention is not to be imputed to the testator, unless the Court are, by the express language of the will, compelled to give that effect to the will. It may be laid down as a general rule, that where a man...
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