Coape v Arnold Arnold v Coape
| Jurisdiction | England & Wales |
| Judgment Date | 15 January 1855 |
| Date | 15 January 1855 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 631
BEFORE THE LORD CHANCELLOR LORD CRANWORTH.
S. C. 24 L. J. Ch. 673; 1 Jur. (N. S.), 313; 3 W. R. 187.
[574] coape v. arnold. arnold v. coape. Before the Lord Chancellor Lord Cranworth. Dec. 14, 15, 16, 18, 1854; Jan. 15, 1855. [S. C. 24 L. J. Ch. 673; 1 Jur. (N. S.), 313 ; 3 W. R. 187.] A testator by his will devised all his real estate to A. B., his eldest son, for ninety-nine years, if he should so long live, and subject thereto to trustees and their heirs 632 CO APE V. ARNOLD 4 DE 0. M. ft 0. J75. during A. B.'s life, in trust only to support contingent remainders, with remainder to the heirs of the body of A. B., and for want of such issue to his second son in like terms. By a codicil, the testator, after confirming his will, devised his real estate to trustees upon certain trusts for the payment of debts and securing a jointure for his wife. Held, that the trustees were bound, after providing for the jointure and debts, to convey the estates to the same uses as those declared by the will; that the heirs of the body of A. B. took by purchase, and that no equitable freehold resulted to A. B., so aa to attract the operation of the rule in Shelley's case, and create an estate tail in A. B. Semble, the rule in Shelley's case applies only where the remainder is created by the same instrument which creates the particular estate. This was an appeal from the decision of the Vice-Chancellor Stuart. The case is reported before His Honour in the second volume of Messrs. Smale & Giffard's Reports, page 311, from whence this statement is extracted. George Arnold of Ledgers Ashby in the county of Northampton, by his will dated the 14th May 1794, after making certain dispositions immaterial to the present question, devised as follows :- " And as to all the rest of my real estates situated within the county of Warwick and the county of the said city of Coventry or elsewhere within the kingdom of Great Britain which I have power by this my will to dispose of, I devise the same chargeable with any mortgage or mortgages which now do or hereafter may affect the aame unto my eldest son George Harry Arnold for the term of ninety-nine years; and in case he shall so long live, and subject to the said term, I devise the same unto Henry Hoare of Mitcham in the county of Surrey, Esquire, and Thomas Gilbert of Collin in the county of Derby, Esquire, and their heirs during the life of my son in trust only to support the contingent remainders hereinafter limited ; and after the determination of the said estates then I give [575] all the said hereditaments and premises subject as aforesaid unto the heirs of the body of my said son G. H. Arnold ; and for want of such issue, I devise the same subject as aforesaid unto my second son Edward Richard John Arnold for the term of ninety-nine years, if he shall so long live, and subject to the said term, I devise the same unto the said H. Hoare and T. Gilbert, and their heirs during the life of my said son E. R. J. Arnold, in trust only to support the contingent remainders thereinafter limited; and, from and after the determination of the said estates, then I devise the same unto the heirs of the body of my said son E. R. J. Arnold," The testator then in default of such issue devised the same to his wife if she remained unmarried; and, in case of her death or marriage, as his eldest son should appoint; and, in default of appointment by his eldest son, as his second son, and in default thereof as his wife should appoint. The testator also gave each of his sons power to jointure, and raise portions for the younger children not exceeding amounts specified in the will. There was an ultimate trust in favour of Edward Morrison and his heirs for ever. By a codicil dated the 27th June 1806, the testator devised to his wife Henrietta Jane Arnold, Henry Peters, Henry Hoare, and Lieutenant-General Edward Morrison, all his "freehold and copyhold estates situate in the parish of Ledgers Ashby, in the said county, &c., or elsewhere in the kingdom of Great Britain, to hold the same to the use of H. J. Arnold, H. Peters, H. Hoare, and E. Morrison, their heirs and assigns for ever, upon trust that they the said H. J. Arnold, H. Peters, H. Hoare, and E. Morrison, or the survivor of them, his or her heirs or assigns, do and shall with all convenient speed after my decease, by such conveyances aa counsel shall ad-[576]-vise, convey and assure unto the trustees named in the articles made previously to my marriage, such part and so much of the said estate as they in their discretion and of their own proper authority shall think fit, and together with the provisions in the said articles mentioned or referred to will make up the yearly rent-charge or sum of 1200 as the jointure for my dear wife Henrietta Jane, to be paid at the time and in my manner in the said articles mentioned. And I hereby empower my said trustees to sell, convey and exchange, or to mortgage all or any part of my said estates. And I declare that their receipts shall be sufficient discharges to purchasers and mortgagees, who shall not be bound to see to the application of the purchase or mortgage monies. 4DEO.M.*O.W7. COAPE V. ARNOLD 633 I hereby charge and make chargeable all and singular my said estates with the payment of my }ust debts and particularly of all such sums of money as by the permission of John Caldecott, Esquire, I have received from all or any of my trust estates and which are unaccounted for by me to him. In witness, &c." The testator made a second will dated in 1806, which was inoperative as to the realty, and died in October 1806, having had no children by his first wife, but leaving three sons by a second wife; G. H. Arnold his eldest son and heir at law, E. R. J. Arnold, and James William Arnold, his only other children. G. H. Arnold died in October 1844, leaving one daughter Georgiana who intermarried with William Coape since deceased, and is the mother of the infant Plaintiff. In 1836 he executed a disentailing deed and subsequently devised the estates to the Defendant. The bill in the first suit was filed on the 10th No-[577]-vember 1851, by Henry Fraser James Coape the infant son of Georgiana, only child of G. H. Arnold, by James Coape his father as his next friend, claiming to be entitled to certain estates in the counties of Northampton and Warwick, of which George Henry the testator died seised under the limitations contained in his will. The second suit was instituted on the 12th July 1852, by the Defendant in the original suit claiming to be entitled to the same estates by virtue of the disentailing assurance executed by G. H. Arnold, and also claiming an estate called the Mirrables in the...
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