Cook v Dawson
| Jurisdiction | England & Wales |
| Judgment Date | 21 March 1861 |
| Date | 21 March 1861 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 826
BEFORE THE LORDS JUSTICES.
S. C. 29 Beav. 123; 30 L. J. Ch. 311; 3 L. T. 801; 7 Jur. (N. S.), 130; 9 W. R. 305; 30 L. J. Ch. 359; 4 L. T. 226; 9 W. R. 434. See In re Chawner's Will, 1869, L. R. 8 Eq. 570.
[127] cook v. dawson. Before the Lords Justices. March 18, 21, 1861. [S. C. 29 Beav. 123; 30 L. J. Ch. 311 ; 3 L. T. 801 ; 7 Jur. (N. S.), 130; 9 W. E. 305 ; 30 L. J. Ch. 359 ; 4 L. T. 226 ; 9 W. R. 434. See In re Chawner's Will, 1869, L. R. 8 Eq. 570.] tgage Held, A testator, after directing his debts to be paid by his executrix, gave his real and personal estate to her for life, and if she found the rents not sufficient for her maintenance and comfort, he gave her full power to mortgage the real estate so far as should be needful for her maintenance and comfort. Held, that the question, s.deo. p. &J.W. cook. v. dawson 827. whether the executrix could sell the real estate for payment of debts, was too doubtful for the title to be forced upon a purchaser. This was an appeal from a decision of the Master of the Rolls, that the executrix of Thomas Dawson was not able to make a good title to the estates devised by hia will. The testator's will, dated the 4th of July 1859, was in part as follows:- "First, I will and direct that all my just debts, funeral and testamentary expenses be fully paid and satisfied by my executrix hereafter named as soon as convenient shall be after my decease." The testator then, after giving his personal estate to hia wife for life, proceeded as follows :-" I give, devise and bequeath to my wife Hannah Dawson all and singular my real estate situate and being at, &c., and elsewhere, and that she shall receive the rents, benefits and annual proceeds thereof for and during the term of her natural life. And if my said wife finds that the net rents and proceeds of the said real estate be inadequate and not sufficient for her proper maintenance and comfort, I give her full power and authority to mortgage the said real estate as far as shall be needful for her maintenance and comfort." After the decease of his wife, the testator limited the real and personal estates to a numerous class of persons, and appointed his wife executrix. After the testator's death a creditors' suit was instituted, to which the widow was the aole Defendant. A decree was made for sale of the real estate. The objection was taken by a purchaser under the decree, that the will gave the executrix no power to sell, and [128J that therefore a good title could not be made. The Master of the Bolls held that the title was bad, and discharged the purchaser (29 Beav. 123). From this order the present appeal was brought. Mr. Eoundell Palmer and Mr. Nalder, in support of the appeal. A general direction in a will that the testator's debts shall be paid will charge them on the real estate; a direction that the executor shall pay them will not in general do so; but where there is a devise of real estate to the executor, that takes away the restrictive effect of the direction that he shall pay, and the real estate is charged, at all events all the real estate over which he has a power of disposition ; and here the executrix has a power of disposing of the fee by virtue of the authority to mortgage. Olowdsley v. Pdlham (1 Eq. Ca. Abr. 198 ; 1 Vern. 411; 2 Vern. 229) is in our favour. Finch v. Hatlersley (3 Euss. 345, n.), is on all-fours with the present case, except that in that case there were no words sufficient to give the executrix any power of dealing with the fee, which makes our case all the stronger. Rohinson v. Lowater (5 De G. M. & G. 272), shews that a charge of debts enables the executor to sell. [THE lord justice knight bruce. Lord St. Leonards has expressed a doubt as to the correctness of that decision; and a doubt from such a quarter deserves attention.] Ill IVrigky v. Si/fas (21 Beav. 337), the doctrine was perhaps carried too far. But we submit that the principle of Moliinson v. Lmouter is sound, that where...
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