Davis v Gardiner
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1723 |
| Date | 01 January 1723 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 693
LORD MACCLESFIELD.
Case 48.-davis versus gardiner. [1723.] Lord Macclesfield. 2 Eq. Ca. Ab. 499, pi. 24. A will says in the beginning, " after testator's debts and legacies paid," and then the will gives several legacies and portions to the testator's daughters ; and then says that " after legacies paid," the surplus of the personal estate shall go to the son. After which follows a devise of land to the son ; but if he dies without issue in the life of any of the daughters, then to the daughters. There is out of the personal estate a sufficiency to pay great part, though not all of the legacies : in such case the deficiency is not chargeable upon the land. Mr. Gardiner of Pishobury in Hertfordshire made his will, wherein he began thus : as to my worldly estate I dispose of the same as follows, after my [188] debts and legacies 694 DAVIS V. GARDINER 2 P. WMS. 189. paid ; then he gave several legacies ; after which he bequeathed 1500 a-piece to his five daughters, payable at twenty-one or marriage, if with consent of his executors ; and then followed these words, after all my legacies paid, I give the residue of my personal estate to my son (having one only son); then he devised his fee-simple lands to his son and his heirs, and if his son should die without issue in the life-time of any of his daughters, he devised his real estate to his daughters, to whom he ordered interest to be paid at 5 per cent, by his executors for their portions, until the same should become due, and appointed his son, and one Serle, executors. The personal estate was not sufficient to pay all the portions, but was enough to pay much the greatest part of them. Upon which it was objected, that the real estate ought to be charged therewith, because by the words of the will, his debts and legacies were to be paid, and the devise to the son of the lands in fee followed afterwards. That portions for children ought to be favoured ; and if the words would bear a construction whereby these portions might be charged on the land (as they would well do in the present case), they ought to be taken in that sense. Lord Chancellor. As plain words are necessary to disinherit an heir, so words equally plain are requisite to charge the estate of an heir; for a charge, so far as the value of it amounts, is, pro tanto, a disinherison. [189] In tne present case, as to the expression after my debts and legacies paid I dispose of the same as...
To continue reading
Request your trial
-
Williams v Chitty. Chitty v Chitty
...unless there were words shewing, the testator meant the disposition, he subsequently made, to be subject to the debts. Davis v. Gardiner, 2 P. Wms. 187. Kightley v. Kightley, 2 Ves. jun. 328. [551] Reply. In the case in Forester there was great reason to think, the testator had in view only......
-
Algernon Greville, - Appellant; Anne Browne, - Respondent
...appealed to as justifying the decision of the Court below. The chief cases are all the other way. The first is that of Davis v. Gardiner (2 P. Wms. 187), where the personal estate not being sufficient to1 pay all the charges, the deficiency was held not to be chargeable on the land. The wor......