Doe, on the demise of John Dolley, against Ward and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1839 |
| Date | 01 January 1839 |
| Court | Court of the Queen's Bench |
English Reports Citation: 112 E.R. 1332
IN THE COURT OF QUEEN'S BENCH
S. C. 1 P. & D. 568; 8 L. J. Q. B. 154. Distinguished, Newman v. Newman, 1839, 10 Sim. 57.
[582] doe, on the demise of john DoLLEY, against ward and others. 1839. Devise of freehold to testator's daughter Sarah for life, and from and after her decease to " such of her children as she now has or may have, if a son or sons, at his or their ages of twenty-three;" if a daughter or daughters, at her or their ages of twenty-one, in fee; and, in case of the death of any son or daughter of Sarah under the prescribed age, his or her share to go to the survivors and survivor of them on attaining the prescribed age, in fee; and, if Sarah should have but one child who should attain the prescribed age, all the premises to go to such only child, so attaining such age, in fee: the reuts and produce of the devised premises to be applied by trustees to the maintenance of the said grandchildren (a) In re Leeming v. Fearnley, 5 B. & Ad. 403. 9 AD. ft E. 583. DOE V. WARD 1333 till they should attain the above ages. Devise over, to a son and other daughters of the testator, and their children, if all the children of Sarah should die under the prescribed ages; and a further clause directing the rents and profits to be applied for the maintenance of the children of Sarah, or of the son's and other daughters' children, "until they become respectively interested as before mentioned." Devise over (after some intermediate clauses), if all the testator's grandchildren then born or thereafter to be born should die under the prescribed ages " without leaving any child or children them or any of them surviving." Sarah survived the testator, and died, leaving children. Held, that, by the will, such children took a vested interest on Sarah's death, and, consequently, that the devise to them was not void for remoteness. [S. C. 1 P. & D. 568; 8 L. J. Q. B. 154. Distinguished, Newman v. Newman, 1839, 10 Sim. 57.] A case was stated for the opinion of this Court, under stat. 3 & 4 W. 4, c. 42, s. 25, in substance as follows. Thomas Dolley, being seised in fee of the freehold and possessed of the leasehold premises after mentioned, made his will on June 12th, 1819, whereby, after disposing of certain freehold and leasehold estates in favour of his son (the lessor of the plaintiff)x and the son's children, and after certain other devises in favour of the testator's own children, he devised as follows. "I give to the said Thomas Challis and John Brogden (a) all those my five freehold houses in Harp Court" (describing them), " nine freehold houses in Black Horse Court " (describing them), "and my leasehold house (describing it), "with all rights and appurtenances," &c.: " also ten shares in the Eagle Insurance, London : to hold all the said last-mentioned freehold and lease-[583] hold premises and Eagle Insurance shares unto the said T. C. and J. B., their heirs, executors, administrators, and assigns, according to the nature thereof respectively, during the natural life of my said daughter Sarah Ward : upon trust that they," or the survivor of them, &c., "do pay, or permit my said daughter S. W. from the quarter-day next after my decease to receive and take, the rents, issues, interest, and annual profits thereof respectively for and during the term of her natural life," to her own sole use, independently of any husband, " if my estate and interest in the leasehold part so long continue " (her receipts to be good discharges for rent, &c.; she keeping the premises in repair, &c.): "and, from and after the decease of my said daughter S. W., I give the said last-mentioned freehold and leasehold premises and Eagle shares unto such of her children as she now has or may have, if a son or sons, at his or their age or ages of twenty-three years, and, if a daughter or daughters, at her or their age or ages of twenty-one years, their respective heirs, executors, administrators, and assigns, according to the nature thereof, as tenants in common : and, in case of the death of any child or children of her my said daughter, if a son or sons, under the age of twenty-three years, and a daughter or daughters, under the age of twenty-one years, the share or shares of each such child, son or daughter, so dying, to go to the survivors and survivor of such child and children, being a son or sons, on his or their attaining the said age of twenty-three years, and, if a daughter or daughters, on her or their attaining the age of twenty-one years, and their heirs, executors, administrators, and assigns, in equal shares, as tenants in common : and, in case my said last-[584]-named daughter has only one child, if a son, that shall live to the age of twenty-three years, and, if a daughter, that shall live to the age of twenty-one years, I give all the said last-mentioned premises and Eagle shares unto such only child so attaining such age, his or her heirs, executors, administrators, and assigns for ever, or during my estate in the leasehold part; and direct that the rents, issues, interest, and annual produce shall, until my said grandchildren attain such ages as aforesaid, be paid and applied for and towards their maintenance and education. And further, in case all the children of my said daughter Sarah, if a son or sons, shall die under the age of twenty-three years, or, if a daughter or daughters, shall die under the age of twenty-one years, then I give all the said last-mentioned premises and Eagle shares unto the said Thomas Challis and John Brogden, their heirs, executors, and administrators, during (a) These trustees were also named executors. ] 334 DOE V. WARD 9 AB. ft B. MB. the respective lives of my said son John Dolley and daughters Ann Dollay and Elizabeth Maria Dolley, upon trust to pay, or permit my said son and two daughters to receive and take, the rents, profits, interest, or other the annual income thereof for and during their respective natural lives in equal shares," the daughters' shares for their separate uses, independent of husbands, "if my estate iti the leasehold part so long continue; .and, upon the decease of my said son and two daughters, I give the share of such of them so dying unto his or her children, if a son or sons, living to the age of twenty-three yeirs, and, if a daughter or daughters, living to the age of twenty-one years, his, her, and their heirs, executors, administrators, and assigns, if more than one iti equal shares, and, if only one child, to such only child, his or her heirs, executors, administrators, and assigns. And further, in case of the death of my said son, or of either of my said [585] two daughters without leaving a child, if a son, who shall live to the age of twenty-three, or, if a daughter or daughters, who shall live to attain to the age of twenty-one years, I give the part and parts such child or children, sons or daughters, would have had and been entitled unto as aforesaid unto the child or children of my said son and two daughters having issue, son or sons, daughter or daughters, living to attain the ages aforesaid, if two of my said last-named children have such children or child, to them, her, or him as taking in equal shares from his, her, or their father or mother, his, her, and their heirs, executors, administrators, and assigns: and, if only one of them, my said son and two daughters, leaves issue that lives to attain the age or ages aforesaid, then I give the whole of such freehold and leasehold premises and Eagle shares unto such issue, if more than one, in equal shares, their heirs, executors, administrators, and assigns, as tenants in common ; and, if only one, to such one, his or her heirs, executors, administrators, and assigns. And it is also my will that the rents, profits, and interest of the said last mentioned premises and shares shall, after all necessary outgoings for repairs, ground-rent, and insurance, be applied for and towards the maintenance of the children of my said daughter Sarah, or of my said son and two other daughters' children, until they become respectively interested as before mentioned " (a). (a) By the terms of the special case, either party was to be at liberty to refer to any part of the will. The following clauses (subsequent to the above, and preceding the clause next cited in the text) were not set out in the case, but were referred to in argument. "I give to the said Thomas Challis and John Brogden, their executors and administrators, until my grandson William Ward attains his age of twenty-three years, if he so long lives, my leasehold house and premises in Walbrook Place, Hoxton, in the parish," &c. " held by me for a long term of years, subject to the rent and covenants in the leae, upon trust to receive and pay the net rent thereof unto my said grandson until he attains that age, on his own receipt for the same; and, on bis attaining the -age ol twenty-three years, I give the said leasehold house and premises unto him my said grandson, his executors, administrators, and assigns, for all the then residue of the said term, subject as aforesaid : but, in case of his death under that age, I give the said house and premises unto my said trustees, their executors and administrators, until his eldest brother or eldest sister for the time being shall live to attain his or her age of twenty-three years, at which time I give the said bouse and premises unto such brother or sister first living to attain his or her age of twenty-three years, his or her executors, administrators, and assigns, for all the residue of the said term, subject as aforesaid, and direct and authorize my said trustees, their executors or administrators, to receive and pay the rents and profits of the said house and premises to such brother or sister of my said grandson as may for the time being be his eldest brother or eldest sister, until he...
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