Davenport v Coltman
| Jurisdiction | England & Wales |
| Judgment Date | 07 May 1842 |
| Date | 07 May 1842 |
| Court | High Court of Chancery |
English Reports Citation: 59 E.R. 1259
HIGH COURT OF CHANCERY
S. C. 11 L. J. Ch. 262; 6 Jur. 381; and at law, 9 Mee. & W. 481; 11 L. J. Ex. 114.
Will. Construction. Intestacy. Implication. Case sent to Law. Conversion.
[588] davenport v. coltman. May 4, 6, 7, 1842. [S. C. 11 L. J. Ch. 262; 6 Jur. 381; and at law, 9 Mee. & W. 481 ; 11 L. J. Ex. 114.] Will. Construction. Intestacy. Implication. Case sent to Law. Conversion. Testator being seised in fee of a house in the town of C., and of estates in the counties of H. and L,, gave pecuniary legacies to his two sons (one of whom was his heir), and also to his two daughters, M. and C. He then gave to his wife, for her life, the possession of his house, together with the use of his plate, furniture, &c., and the interest of his stock in the funds, during her life, " save and except the clauses in favour of my daughters, as already mentioned; at her decease it is my will and pleasure that M. and C. shall divide equally between them, as residuary legatees, whatever I may die possessed of, except what is already mentioned in favour of others." Held, that M. and C. took an estate in fee in remainder expectant on the death of the testator's widow, in the house in C., and an estate in fee, commencing on the widow's decease, in the estates in H. and L.; and that the widow did not take a life interest by implication in those estates, but that the heir took them by descent during her life. Testator, amongst other bequests, gave a freehold house, his furniture and certain other chattels, to his wife for life, and willed that, at her death, his two daughters should divide equally, as residuary legatees, whatever he might die possessed of, except what was already mentioned in favour of others. The question was what was the effect of the words in italics, with regard to certain real estates of the testator, which were not particularly mentioned in his will. Held, that the Court ought not, in order to determine that question, to inquire into the value and other circumstances of the real estates, nor ought those circumstances to be stated in a case made for the opinion of a Court of law upon the question. 'Testator devised his real estates to trustees, in trust to sell, and to pay the proceeds to the person or persons who, at the decease of S. M. and M. \V., was or were their heirs or co-heirs at law respectively, in equal moieties. One of the trustees was the testator's heir; and he and his co-trustees sold part of the estates shortly after the testator's death. The heir then died; and, after his death, it appeared that the persons who were the heirs of S. M. and M. W. at their respective deaths had died in the testator's lifetime; and, consequently, the trusts declared in their favour failed. Held, that the testator's real estates were riot absolutely converted by his will into personalty, but only for the purpose expressed therein, and, that purpose having failed, that they descended to his heir. Held, also, that the proceeds of that part of the estate which had been sold by the testator's heir .and his co-trustees was sold under an erroneous impression that one or more of the intended cestui que trusts might be in existence, and, consequently, that those proceeds also must be considered as part of the real estates of the heir. In pursuance of the decree made at the hearing of this cause, in February 1841, the following case was stated for the opinion of the Judges of the Exchequer. George Coltman was, at the time of making his will hereinafter mentioned, and thenceforth continued until and at the time of his death, seised in fee-simple of the house in Stanley Place, Chester, in his will mentioned, and also of a certain tenement in the county of Lincoln, and a certain other tenement in the county of Hertford. 'The said George Coltman being so seised as aforesaid, and being also possessed of 1260 DAVENPORT V. COLTMAN 12 aiM. 089. certain sums of money in the 3 per cant, and 4 per cent. Bank annuities, and of an interest in. the leasehold houses at Liverpool in the will mentioned, and of the other personal estate therein also mentioned, duly made his last will and testament, bearing date the 26th of March 1828, which was duly executed and attested as by law was then required for the devise of real estates, and which was in the words aud figures following, that is to say :- " The will of George Coltman, doctor of physic, now resident in Chester, made on the 26th day of March, [589] the year 1828 of the Christian Era. I revoke all former wills. To my son, Thomas Coltman, I bequeath my gold watch, chain and seals, my carriages, harness and horses, and cows, market cart and harness for the same, also whatever is considered as belonging to me at my new residence in Hagnaby Priory. To my daughter, Mary Newbold, I bequeath the sum of 250 per annum ; and, iu case of her death and without issue, the same sum to her husband, for his natural life, and afterwards to be equally divided between my son, George Coltman, and daughter, Charlotte Coltman. To my daughter, Charlotte Coltman, I bequeath the sum of 250 per annum; and in case she should continue unmarried or die without issue, the same shall be taken possession of by her brother, George Coltman. To my son, George Coltman, I bequeath the sum of 3000, which he is not to receive till after the death of his mother, and likewise, at her decease, all the plate which I may die possessed of, but at my decease he is to have, immediately, the whole of my library at his own disposal. That my wife, Mary Coltman, may be left in as comfortable a situation as possible, I bequeath to her, for her natural life, the possession of my house in Stanley Place, Chester, together with the use of the plate, china, linen and household furniture, and all the joint property in houses in Liverpool, and likewise of interest of money, as often as due, arising from the three and four per cents., and to have and to hold the same during her natural life, save and except the clauses in favour of my daughters, as already mentioned. At her decease it is my will and pleasure that Mary Newbold and Charlotte Coltman shall divide equally between them, as residuary legatees, whatever I may die possessed of, except wltat is already mentioned in favour of others. I give and bequeath the small sum of 50 to my much-[590Testeemed friend, John Eden, Esq., attorney-at-law, of Liverpool. To Betty Moffitt I give and bequeath the sum of 18 per annum for her natural life. This is done as a small token of friendship for her long and important services in my family. That the intention of this my will may be carried into execution, I appoint my wife my executrix, John Eden, Esq., and my son, Thomas Coltman, executors. As for the houses in Liverpool, they may dispose of any one or the whole of them, whenever the same may be thought advisable for the benefit of the parties concerned; but the house in Chester must not be sold as long as my wife lives." The said testator, George Coltman, died on the 3d day of August 1828, without having in any manner revoked or altered his said will, leaving his wife, the said Mary Coltman, and also the four children named in his said will, that is to say, Thomas. Coltman, who was his eldest son and heir at law, George Coltman, Mary Newbold (since deceased), and Charlotte Coltraan, who has since become the wife of John Davenport the younger, his only next of kin, him surviving. The questions for the opinion of the Court are:- First, what estate, if any, did the said Mary Coltman, the wife of the said testator, George Coltman, take in the said tenements in the counties of Lincoln and Hertford under the will of the said testator; Secondly, what estate, if any, did the said Mary Newbold and Charlotte Davenport, the daughters of the said testator, or either and which of them, take in the said tenements in the counties of Lincoln and Hertford under the said will; and [591] Thirdly, what estate, if any, did the said Mary Newbold and Charlotte Davenport, or either and which of them, take in the said house or tenement in Stanley Place, Chester, under the same will 1 The case was argued in Michaelmas term 1841, and on the 31st of January 1842 the Barons of the Exchequer certified, First, that Mary Coltman, the wife of the testator, took no estate in the tenements, in the counties of Lincoln and Herts. Secondly, that Mary Newbold and Charlotte Davenport took an estate, as tenants. 12BIM. BM. DAVENPORT V. COLTMAN 1261 in common in fee-simple, in the tenements in Lincolnshire and Herts, under the said will, commencing at the death of the said testator's widow.(l) Thirdly, that the said Mary Newbold and Charlotte Davenport took an estate as tenants in common in fee-simple in the Stanley Place house in remainder expectant on the life-estate of the widow. (See 9 Mees. & Wels. 481.) [592] The cause now came on to be heard on the equity reserved. Mr. Bethell and Mr. Willcock, for the Plaintiff, the testator's daughter, Charlotte Davenport, supported the certificate. They cited Hmtep v. Brooman (1 Bro. C. C. 437); Hopewell v. Ackland (1 Salk. 239); Pitman v. Stevens (15 East, 505); Hyley v. Hyley (3 Mod. 228); Tanner v. Morse (Ca. temp. Talb. 284); Monk v. Mawdsley (ante, vol. i. 286); Murry v. Wyse (2 Vern. 564); Doe v. Tofield (11 East, 246); Wike v. mice (7 Bing. 664); Noel v. Hoy (5 Madd. 38); Barnes v. Patch (8 Ves. 604); Thomas v. Phtlpt (4 Russ. 348). Mr. Koe, for Francis George Newbold, the heir at law of testator's daughter, Mary Newbold, also supported the certificate; he cited Doe v. Lainchbury (11 East, 290), and Doe v. Langlamds (14 East, 370). Mr. G. Richards and Mr. Lee, for Thomas Coltman, the testator's heir at law. The testator's Hertfordshire and Lincolnshire estates were of very considerable value; and it is but reasonable to suppose that the testator, if he had intended to dispose of them, would have mentioned them specifically...
To continue reading
Request your trial
-
Re Arrowsmith's Trusts
...which, by the will, was not expressly disposed of during her life; Doe v. Brasier (5 B. & Aid. 64); Davenport v. Colt-man (9 M. & W. 481 ; 12 Sim. 588). The legacies in the codicil shew that it was not intended to give the wife a life interest in the whole estate. But suppose it was so inte......
-
Windus v Windus
...all the property, and that the testator was merely directing how the residuary legatee was to take. In the case of Davenport v. Coltman (12 Sim. 588), the words were, "shall divide as residuary legatee whatever I may die possessed of." The question was very much of the same character, wheth......
-
Molyneux v Rowe
...(23 L. J. N. S. 283, C. B.); Doe v. Dring (2 Mau. & S. 448); Roe v. Yeud (2 B. & P. N. R. 214); Davenport v. CoUman (9 Mee. & W. 481, and 12 Sim. 588); Stokes v. Salomons (9 Hare, 75); Warner v. Warner (15 Jur. 141); Brockelbank v. Johnson (20 Beav. 205); Doe v. t7Aap-[374]-nwn (1 H. Bl. 22......
-
Hill v Rattey alias Potts
...the thing excepted must be a fee or an absolute interest: Doe dem. Knott v. Lawton (4 Bing. N. C. 455, 461, 462), Davenport v. Coltman (12 Sim. 588), Hotham v. Button (15 Ves. 319), Marshall v. Hopkins (15 East, 309). The bequest to the Plaintiff is in effect, therefore, a bequest of so muc......