Davies v Fisher
| Jurisdiction | England & Wales |
| Judgment Date | 26 February 1842 |
| Date | 26 February 1842 |
| Court | High Court of Chancery |
English Reports Citation: 49 E.R. 554
ROLLS COURT
S. C. 11 L. J. Ch. 338; 6 Jur. 248. As to remoteness, see Locke v. Lamb, 1867, L. R. 4 Eq. 379.
[201] davies v. fisher. Feb. 17, 19, 26, 1842. [S. C. 11 L. J. Ch. 338; 6 Jur. 248. As to remoteness, see Locke v. Lamb, 1867, L. R. 4 Eq. 379.] A testator gave his widow the power of appointing his residuary estate. By her will, after reciting the power, she declared that, in pursuance of the power and all other powers enabling her, for the purpose of disposing of her husband's and her own estate, she made her will as follows :-She then directed her debts to be paid, and gave some legacies; and as to all the rest, &c., " of her personal estate, she bequeathed the same to A. and B. upon trust, &c. Held, that the widow (who died in 1832) had thereby appointed the residuary estate of her husband. A gift of personalty to trustees for A. for life, and after his death in trust for the children of A. "as they severally attained twenty-five years," the income to be applied during their respective minorities by their guardian for their maintenance, &c., with a gift over in case no child of A. should live to attain twenty-five. Held, to be vested, and not too remote. The testator, James Davies, by his will, dated the 18th day of September 1824, after directing payment of all his debts, and funeral and testamentary expenses, and giving divers pecuniary legacies, bequeathed all the residue of his estate, both real and personal, unto his wife, Ann Davies, deceased, her heirs, executors, and administrators absolutely, and he appointed his wife and William Powell his executors. [202] On the 20th of September 1824 the testator made the following codicil to his will:-" Whereas by my will as aforesaid, bearing date the 18th day of September in the year 1824, I have directed my wife, Ann Davies, to be my residuary legatee : in case she the said Ann Davies dies without making a will after my decease, the remainder of all my property, whatsoever it may consist in, whether bank, consolidated, funded property, houses, furniture, plate, books, linen, wearing apparel, &c., to be equally divided, share and share alike, among my brother William Davies's four children, as named-William Davies junior, James Davies junior, Martha Ann West, and Mary Davies, or to as maiiy of the aforesaid children as may be living at the decease of the said Ann Davies. Likewise I direct and appoint William Davies junior my residuary legatee instead of my wife, Ann Davies, and the forenamed William Powell." The will and codicil were unattested. The testator died in December 1824. His wife, who survived him, made her will dated in April 1832, and thereby, after reciting that the testator, James Davies, her late husband, did by his aforesaid will and codicil appoint her his residuary legatee, and direct in case of her death, without making a will after his decease, that his nephew, William Davies the younger, should be his residuary legatee, she the said Ann Davies, in pursuance of the power and authority given and reserved to her in and by the will of James Davies the elder, and of all other powers and authorities in anywise enabling her, did, for the purpose of disposing of all the estate of her said late husband, James Davies, over which she had any disposing power, and also of all SBEAV.SOS. DA VIES V. FISHER 555 her own estate and effects whatsoever and wheresoever, make her last will and testament in manner [203] following (that is to say):- First, she appointed James Fisher and William Powell executors of her said will; and after directing payment of her debts, and funeral and testamentary expenses, she bequeathed to James Davies, the younger, a legacy of 2000 three per cent, consolidated Bank annuities, and to James Fisher and William Powell the sum of 4000 three per cent, consolidated Bank Annuities upon trusts therein mentioned, for Martha Ann West and her children as therein mentioned ; and after bequeathing several annuities and legacies, and directing her executors to appropriate so much stock out of her residuary estate as would be .sufficient, in point of yearly income, to answer the same annuities, and directing that from the deeease of the respective annuitants the same should sink into and form part of her residuary estate, she bequeathed to James Fisher and William Powell her three leasehold messuages and premises, situate in Park Street, Islington, for all her estate therein, upon trust to sell the same, and apply the produce upon the same trusts aa were thereinafter declared concerning her residuary personal estate; and as to all the residue of her personal estate whatsoever, and wheresoever, and of what nature or kind soever not specifically bequeathed or disposed of by her will, she bequeathed the same unto James Fisher and William Powell, upon trust to sell, get in and convert into money the whole of her personal estate, or such part thereof as should not consist of money in the funds or on Government, or real, or leasehold securities, and out of the produce thereof to pay her debts, funeral and testamentary expenses, and pecuniary legacies, and make the appropriations necessary for answering the said annuities. And upon trust to invest the clear surplus...
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