Culsha v Cheese
| Jurisdiction | England & Wales |
| Judgment Date | 04 April 1849 |
| Date | 04 April 1849 |
| Court | High Court of Chancery |
English Reports Citation: 68 E.R. 97
HIGH COURT OF CHANCERY
S. C. 18 L. J. Ch. 269; 13 Jur. 802.
7 HARE, 236. CULSHA V. CHEESE 97 [236] culsha v. cheese. Feb. 22, March 2, 6, 7, 24, April 4, 1849. [S. C. 18 L. J. Ch. 269; 13 Jur. 802.] Upon the marriage of the testator and the testatrix certain estates were settled to the use of the husband for life, remainder to the wife for life, remainder to the children of the marriage, and, in default of issue of the marriage, to the use of the survivor of the husband and wife, and his or her heirs and assigns. The testator, by his will, made during the coverture (having other estates not in settlement), devised all his real estates to the testatrix for her life, and, upon her decease, to the use of A., B. and C., in trust for sale, and out of the proceeds of such sale, and the residue of his personal estate, to pay certain legacies, and, subject thereto, to stand possessed of one-fourth part of the said trust monies, for such purposes as the testatrix should appoint, and, in default of appointment, for her next of kin; and to pay and dispose of the other three-fourths equally amongst A., B. and C., their executors, administrators and assigns. The testator died in the lifetime of the testatrix, leaving no child of .the marriage. The testatrix, by her will, made in 1839, after the death of A., B. and C., reciting that she believed it was the testator's wish that the settled estates should pass by his will, and she was desirous of fulfilling his wishes, devised the settled estates to the uses, by the testator's will declared concerning the same, and, in exercise of the power of appointment given to her by the testator of the fourth of his estate, appointed the same to her trustees, upon the trusts which she declared of her own residuary estate, and directed her real estate to be sold and fall into such residue, which she bequeathed to several legatees. Held that, there being, in the events which happened, no uses declared of the settled estates by the will of the testator, the specific devise of such settled estates by the will of the testatrix was void, or incapable of taking effect. That the heir at law of the testatrix did not take the settled estates as the subject of a void or ineffectual devise; but that, under the Wills Act (7 Will. 4 and 1 Viet. c. 26), the settled estates passed by the residuary devise in the will of the testatrix, for the benefit of her residuary legatees, the case not being one in which a contrary intention appeared, within the meaning of that statute. Costs, where two estates, those of the testator and the executor, are administered in the same suit. By a settlement, made upon the marriage of John Woodhouse and Mary, his wife, certain estates in the county of Hereford were settled to the use of John Woodhouse and his assigns, during his life, with remainder to the use of Mary, the wife, for her life, for her jointure and in bar of dower, and after the several deceases of John Wood-house and Mary, his wife, and the decease of the survivor of them, then to the use of the children of the said marriage, as John Woodhouse and Mary, his wife, should jointly by deed, or the survivor of them should by deed or will, appoint, and, in default of such appointment, to the use of the said children, and, in case there should be no issue of the marriage,- or if all such issue should die in the lifetime of the survivor of the husband and wife, then to the use of such survivor, his or her heirs or assigns, for ever. [237] John Woodhouse, the husband, died in January 1820, without issue, having by his will, dated in 1816, directed that, after the payment of his debts and certain legacies, the residue of his personal estate should be invested, and the annual produce thereof paid to Mary, his wife, for her life; and that, from and after her decease, the same should be held upon the same trusts as were thereinafter declared of the monies to arise by the sale of his real estates. And the testator thereby bequeathed legacies to children of Thomas and Althea Jeffries, and children of John and Barbara Fletcher, and to several other persons; and he directed that all such last-mentioned legacies should be paid by his trustees out of the monies thereinafter provided for that purpose, at the end of twelve months next after the decease of his wife. And, after devising the estates vested in him by way of trust or mortgage, the testator devised all other his manors, messuages or tenements, farms, lands, hereditaments and premises, and V.-C. xiii.-4 98 CULSHA V...
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