Davis v Angel
| Jurisdiction | England & Wales |
| Judgment Date | 07 July 1862 |
| Date | 07 July 1862 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 1287
BEFORE THE LORD CHANCELLOR LORD WESTBURY.
S. C. 31 Beav. 223; 31 L. J. Ch. 613; 10 W. R. 722; 8 Jur. (N. S.), 1024; 6 L. T. 880. On the point of having sufficient interest to maintain a suit, see Clowes v. Hilliard, 1876, 4 Ch. D. 418; Peacock v. Colling, 1885, 54 L. J. Ch. 745: In re Parsons, 1890, 45 Ch. D. 60.
[524] da.vis *. angel. Before the Lord Chancellor Lord Westbury. Julyl,l8'2. [S. C. 31 Beav. 223; 31 L. J. Ch. 613 ; 10 W. R. 722 ; 8;.Iur. (N. S.), 1024 ; 6 L. T. 880. On the point of having sufficient interest to maintain a suit, see Clowes v. Hilliard, 1876, 4 Ch. D. 418; Peacock v. dolling, 1885, 54 L. J. Ch. 745: In re Parsons, 1890, 45 Ch. D. 60.] A testator by his will gave a share of his residuary estate in case a specified nephew should marry a specified niece of the testator, in trust for the nephew for life, subject to the proviso thereinafter contained, and after his decease for his eldest or only child (if any) who should attain twenty-one, but if the nephew should not marry the niece, the testator directed that the bequest to the nephew should not take effect, but that such share should fall into and become part of the general residuary estate for the benefit of the other legatees. The nephew in the testator's lifetime, and with his assent, married another person than the niece. The testator died leaving the nephew, the nephew's wife and a son of the nephew, and also leaving the niece, who was still unmarried, him surviving. Held,- 1. That the condition being precedent, could not be removed by the assent. 2. That it applied to the whole interest in the share and not only to the nephew's life interest. 3. That the possibility of the nephew marrying the niece was not sufficient to entitle his son to file a bill to have the share secured. The other shares in the residue were to be held in trust for other nephews or nieces for life and afterwards to their respective eldest or only children who should attain twenty-one, with a direction that such of the shares as should not vest absolutely should be added to the other shares, so that the number of the shares should be the same as the number of nephews and nieces who should have a child who should attain twenty-one. Held, that the last-mentioned nephews and nieces were nephews and nieces who could take under the preceding trusts, and did not include the nephew first mentioned. 1288 DAVIS V. ANGEL 4 DE 0. F. & J. 535. This wag an appeal from the decision of the Master of the Rolls dismissing the Plaintiff's bill. The questions in the cause turned on the construction and effect of the will of Moses Crawcour, dated in September 1854, whereby, after directing his residuary estate to be divided into fifteen parts, he directed that one equal fifteenth part or share of the trust estate should be held upon trusts expressed as follows:-- "In trust for my nephew Isaac Davis, son of David and Annie Davis, in case he should marry my niece Esther Godfrey, during his life, subject to the proviso hereinafter contained; and from and after his decease in trust for the eldest or only child (if any) of the said Isaac Davis who shall be living at his decease and shall have attained or shall live to attain the age of twenty-one years, and the heirs, executors and administrators of such eldest or only child ; but in case the said Isaac Davis [525] shall not marry my said niece Esther Godfrey, then I do direct that the bequest to the said Isaac Davis shall not take effect, but that such share shall fall into and become part of my general residuary estate for the benefit of the other legatees named in this, my will." The testator directed the other fourteen shares of his residuary estate to be held in trust for other nephews and for nieces and their respective eldest children who should attain twenty-one, and that all such of the said parts or shares (if any) as should not under the trusts before declared become absolutely vested in any person or persons, and all accretions (if any) to such shares respectively should be added to the others of the said shares so that the number of shares into which his trust estate should be ultimately divided should be the same with the number of his said nephews and nieces who should respectively attain twenty-one years, and so that each such child should, subject to the life interests thereby given, be entitled to one of the same shares. At the date of the testator's will Isaac Davis therein named was a bachelor, but during the testator's lifetime, and, as it was stated, with the testator's privity and consent, he married one Isabella Russell. The testator died in 1858, leaving Isaac Davis and his wife, an infant son of Isaac Davis by Isabella his wife, and Esther Godfrey, who was still unmarried, and several other nephews and nieces him surviving. The suit was instituted by the infant son, and the bill prayed that the rights of the Plaintiff might be declared and that the above-mentioned share in the testator's residuary estate might be ascertained and secured. The Master of the Rolls held, that the fact of marriage of Isaac Davis having taken place with the consent of [526] the testator did not remove the condition precedent annexed to the bequest of the share in which a life interest was given to Isaac Davis, and that the Plaintiff had riot such an interest under the will as to entitle him to call on the Court to protect the funds until Isaac Davis had performed the condition. His Honour referred to Lord Redesdale's proposition (Mitf. (4th ed.) 156), that where the Plaintiff shews only the probability of a future title upon an event which may never happen he has no right to institute any suit concerning it; a rule which His Honour held applicable generally to all contingent interests without reference to the degree of the probability. The case is reported in the 31st Volume of Mr. Beavan's Reports (page 223). Mr. Baggallay and Mr. W. Pearson, for the Appellant. They referred to Smith v. Cowdery (2 Sim. & St. 358); SMholme v. Hodson (3 P. Wms. 300); Wheeler v. Warner (1 Sim. & St. 304); Clarke v. Berkeley (2 Vern. 720); Governesses' Institution v. Rusbridger (18 Beav. 467); Flight v. Cook (2 Yes. sen. 619); Randal v. Payne (1 Bro. 0, C. 55); Roberts v. Roberts (2 Phil. 534); Andrew v. Wrigley (4 Bro. C. C. 125). Mr. Cole and Mr. C. Swanston, for the Respondents, were not called on. the lord chancellor. I have had little doubt upon the points that have been argued, and very ingeniously argued, in this case. [527] In the decision of the case first of all I take that which has been conceded, and which of course is the basis of all argument, that this1 is a precedent condition. That is granted. But then it is argued that the condition applies only to the life interest of...
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