Cook v Whitley
| Jurisdiction | England & Wales |
| Judgment Date | 28 February 1857 |
| Date | 28 February 1857 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 191
BEFORE THE LORD CHANCELLOR LORD CRANWORTH.
S. C. 26 L. J. Ch. 350; 3 Jur. (N. S.), 703; 5 W. R. 383. See Adney v. Greatrex, 1869, 38, L. J. Ch. 416.
[490] crook v. whitley. Before the Lord Chancellor Lord Cranworth. Feb. 25, 28, 1857. [S. C. 26 L. J. Ch. 350; 3 Jur. (N. S.), 703 ; 5 W. E,. 383. See Adney v. Greatrex, 1869, 38 L. J. Ch. 416.] A testatrix gave "to each of the present nieces of A. B. for her own absolute benefit the sum of 2000, and in case any of them shall die in my lifetime leaving a child or children who shall survive me, then and in every or any such case the legacy intended for her so dying shall go to her child or children in equal shares, if more than one." At the date of the will and death of the testatrix there was only one niece of A. B. alive, but there were several grand-nieces and great grand-nieces. 192 CROOK V. WHITLEY 7 DE 0. M. & 0. 1. Held, that the bequest was confined in its terms to the niece of the first degree, and that the children of nieces who were dead at the date of the will were not entitled to take by substitution. Ann Orred, by her will dated the 12th August 1847, after devising certain real estate to John Johnson, as to whom she declared by her will her belief that he was the nearest male relative of her late mother, through whom she had acquired considerable property, and after giving certain pecuniary legacies, made the following bequest:-" I bequeath unto each of the present nieces of Peter Eaton, late of Alton, in the county of Chester, surgeon, deceased, for her own absolute benefit, the sum of 2000, and in case any of them shall die in my lifetime, leaving a child or children who shall survive me, then and in every or any such case the legacy intended for her ao dying shall go to her child or children in equal shares if more than one." The testatrix died on the 13th September 1852. Peter Eaton, who was first cousin once removed of the testatrix, was born in 1747, and died in 1792. He had one brother and two sisters. The brother died in 1801, without having ever had any child. One of the sisters of Peter Eaton had five children-two sons and three daughters; of these daughters, Sarah Eccles was still living, the other two had died in 1829 and 1837 respectively. The other sister of Peter Eaton had issue four sons and four daughters ; the daughters had died in 1795, 1797, 1841 and 1847 respectively. At the date of the will of the testatrix, only one niece of the first degree [491] of Peter Eaton was living-namely, Sarah Eccles, then a widow, upwards of seventy-five years old. Sarah Eccles had had two children, who were both dead at the date of the will. One of these two children had left four children. At the date of the will there were living in all thirty-nine nieces, grand-nieces and great grand-nieces of Peter Eaton-only one, Sarah Eccles, of the first degree, sixteen of the second degree, and twenty-two of the third degree. The question raised in the suit was, as to the meaning to be ascribed to the...
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