Doe D. Todd v Duesbury
| Jurisdiction | England & Wales |
| Judgment Date | 26 May 1841 |
| Date | 26 May 1841 |
| Court | Exchequer |
English Reports Citation: 151 E.R. 1142
EXCH. OF PLEAS.
S. C. 10 L. J. Ex. 410. Referred to, Brookman v. Smith, 1872, L. R. 7 Ex. 277.
doe D. todd v. d(je,seury, Exch. of Pleas. May 26, 1841.-Devise to T. D. and his assigns during his natural life, and from and after his decease unto all and every his child and children ; if only one child, then to such child, his or her heirs, executors, administrators, or assigns; but if more such children, then equally to be divided amongst them share and share alike, and to the heirs, executors, administrators, and assigns of such children respectively, aa tenants in common, and not as joint tenants ; but in ca.se the said T. D. should happen to die without leaving lawful issue, then to R. T., E. D., and M. D., and to their heirs, executors, administrators, and assigns, as tenants in common, and not as joint tenants, charged with the payment of 10001. in that case given and bequeathed to E. H., to be paid to her at the end of twelve months after the said E. T., E. D. and M. D., their heirs, &c., should come into the possession of the same premises. At the time of the testator's death, T. D. and several of his children were living:-Held, that the limitation over to E. T., E. D., and M. I)., did not operate by way of executory devise, nor vest in them a remainder in fee. [S. C. 10 L. J. Ex. 410. Eeferred to, Brookman v. Smith, 1872, L. E. 7 Ex. 277.] Upon ejectment brought, and issue joined therein, the following ease was, under an order of Lord Abinger, C. B., stated for the opinion of this Court:- The premises in question in this action are parcel of certain estates situated at Hunsley, Eiplingham, and Rowley, in the East Riding of the county of York, of all which estates Mrs. Catherine Younge, widow, before and at the time of the execution of her will hereinafter mentioned, and thenceforth continually until and at the time of her death also hereinafter mentioned, was seised in fee-simple. By will dated 17th .July, 1796, duly executed and attested as is by law required for the devising of estates of inheritance, Mrs. Catherine Yrounge devised certain premises, not now in question, to her cousins, Esther Duesbury and Mary Dueabury, the daughters of her late uncle, Matthew Dueabury, their heirs and assigns for ever, as tenants in common, and not as joint tenants; and among various other clevisus, the said Catherine Younge thereby devised her said premises at Hunsley, Riplingham, and Rowley, together with other property, to certain trustees, for a term of 2t years, to commence, as to the said pre-[515]-mises at Hunsley, Riplingham, and Rowley, from and immediately after her decease, upon trust to provide for and secure the payment of certain legacies and annuities therein mentioned ; and from and after the end or sooner determination of the said term, and in the mean time subject thereto, she devised the said premises at Hunsley, Kiplingham, and Rowley, by the words following;-" I also give, devise, direct, limit, and appoint all my said freehold S M. & W. 016. DOE V. DUESBURY 1143 messuage, farm, closes, lands, and hereditaments, with the appurtenances, situate at Lower Hunsley, and also my oxgang of freehold land, with the appurtenances, in Jtipliiightttti fields, in the parish of Kowley aforesaid, now or late in the tenure, Ac. ; also all those my said messuages, farms, closes, lands, tenements, and hereditaments, situate at Eiplingham aforesaid, with the appurtenances, in the occupation, &c.; and also all other my freehold, leasehold, and other real estates not hereinbefore disposed of, from and immediately after the end or sooner determination of the said term of twenty-one years, and in the mean time subject thereto, unto and to the use of Thomas Duesbury, the son of my cousin William Duesbury, and his assigns, during his natural life ; and from and after the decease of the said Thomas Duesbury, I give, devise, limit, direct, and appoint the said messuages, lands, hereditaments and premises last mentioned, and so situate at &c., unto all and every the child and children of the said Thomas Duesbury, if only one child, then to such child, his or their heirs, executors, administrators, or assigns, but if more such children, then equally to be divided amongst them, share and share alike, and to the heirs, executors, administrators, and assigns of such children respectively, as tenants in common and not as joint tenants; but in case the said Thomas Duesbury shall happen to die without leaving lawful issue, then I give, devise, limit, direct, and appoint all arid every & ;., (the same premises), unto Kebecca Thornton, the sister of the said Thomas Duesbury, and to the said Esther Dues-[516]-bury and Mary Duesbury, and to their heirs, executors, administrators, and assigns, as tenants in common and not as joint tenants, according to such estates or interests as I myself have respectively therein, charged nevertheless with the payment of the legacy or sum of ,1000, which I do hereby iu that case give and bequeath to Elizabeth Harrison, the other daughter of the said Matthew Duesbury, the same to be paid to her at the end of twelve calendar months next after the said Kebecca Thornton, Esther Duesbury, and Mary Duesbury, their heirs, executors, or assigns, shall come into the possession of the same premises, and also charged with and subject to such annual and other payments as hereinafter expressed." And the testatrix thereby directed the said trustees, out of the rents and profits of the said estates so vested in them for tweuty-one years, and out of the rents, and arrears of rent, debts, and sums of money due and owing to the testatrix at the time of her death, and also out of the money to arise by certain sales therein directed, to pay and discharge the several debts, sums of money, expenses, annuities, and other charges thereinafter mentioned, certain of which said several annuities were to continue to be paid until the end or other sooner determination of the said term ; and after payment of the said annuities, to pay and apply the surplus for and towards payment of the several legacies or sums of money thereinafter given, bequeathed, or directed to be made, in such order, manner, and priority of payment, as the same were thereinafter set down or expressed, and when and so soon as sufficient money was received for the payment of the same, or of any of them, according to such priority, that is to say, to divers persons therein successively named, the Respective fcums therein mentioned, many of which are small sums, for rings and mourning, and amongst which is a legacy in the following words :-" To such of the children of the said Elizabeth Harrison as shall be living at the decease of their mother, the legacy or [517] sum of 20 apiece ;" and also a legacy of =400 to Emma Kirk, and last in succession, to the said Esther Duesbury and Mary Duesbury, the legacy or sum of 750 apiece, and to the said Kebecca Thornton, a legacy or sum of $00: and the testatrix thereby directed, that when and as soon as the said legacies or sums of money before mentioned should be raised, levied, and satisfied, the said term, or the residue thereof unexpired, should cease, and that from the end or sooner determination of the said term of twenty-one years, certain annuities atid legacies specified should, if not before extinguished, be charged on the estates devised to the use of the said Thomas Duesbury and his assigns as aforesaid ; and that in case the said Emma Kirk should happen to die before the said legacy should become payable, leaving lawful issue, then she directed, limited, and appointed that the said legacy or sum of 400 so giveti or directed to be paid to her, should go and be paid to all and every the child and children of the said Emma Kirk, who should be living at her decease; if only one child, then to such child; but if more than one, then to and equally amongst such children, share and share alike, at their zpespective ages of twenty-one years ; atid if it should happen that the said Emma Kirk should die before the said legacy should become payable, without leaving lawful issue, then she directed that the said legacy 1144 DOE V. DUESBURY 8M. &W.518. skould sink, lapse, and not be raised ; and she also thereby directed that in ease the said Rebecca Thornton should happen to die before her said legacy should become payable, leaving lawful issue, then and in such case the legacy or sum of 800 so given or directed to be paid to her should go and be paid to all and every the child atid children of the said Rebecca Thornton which should be living at her decease ; if one only child, then to such only child, but if more than one, then unto and equally to be divided among such children, share and share alike, at their respective ages of 21 years, and also that the said sum of 800 should in that case be placed out at in-[518]-terest by the said trustees from and immediately after the time the same would have been payable to the said Rebecca Thornton, and the interest thereof applied by them towards the maintenance and education of such child or children as last mentioned : and if it should happen that the said Rebecca Thornton should die before the said legacy should become payable, without leaving lawful issue, then that the said legacy of 800 should lapse, and not be raised and paid by the said trustees. And the testatrix also directed, that in case the said...
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