Doo against Brabant
| Jurisdiction | England & Wales |
| Judgment Date | 12 December 1791 |
| Date | 12 December 1791 |
| Court | High Court of Chancery |
English Reports Citation: 29 E.R. 605
LINCOLN'S INN HALL.
See Brookman v. Smith, 1871, L. R. 6 Ex. 303.
Vide S. C. in K. B. 4 T. R. 706.
3 BEO. C. C. 393. DOO V. BRABANT 605 [393] Doo against brabant. Lincoln's Inn Hall, 12th Dec, [1791]. [See Brookman v. Smith, 1871, L. R. 6 Ex. 303.] [Vide S. C. in K. B. 4 T. E. 706.}- [Devise.-Conditional Limitation.-Condition, precedent.]-[1st. A devise to A. at 21 ; and if she die under 21 to her children ; or if she die under 21, and no children, then over. A. survived 21, and had children, and then died in the life-time of the testatrix. Decided at law that A.'s children could not take; (1) the above being a condition precedent; contrary to the opinion of Lord Thurlow, C.] Sarah Counsell made her will, dated 7th August .1777, and thereby gave £1000 3 per cent, consol annuities, and other effects, to trustees, in trust for Sarah Counsell, of the age of 12 years, until she should attain her age of 21 years ; then to transfer the said sum to the said Sarah Counsell, her executors and administrators, to and for her own use and benefit: and in case the said Sarah Counsell should die under the age o/21 years, leaving any child or children of her body lawfully begotten, then in trust for all and every such child or children who should live to attain his, her, or their age or ages of 21 years, and to be equally divided between them, share and share alike, if there should be more than one such child, and if there should be but one, then in trust for such child, but in case the said Sarah Counsell should die under the age of 21, without leaving any child or children, or being such, they should all die under 21, then in trust for testatrix's three nieces, Mary, Ruth, and Sarah Ogle, equally to be divided among them. In the year 1780, Sarah Counsell married Benjamin Doo, and died in April 1790, in the life-time of the testatrix, leaving the two plaintiffs her only children, surviving her, and in the same month of April, Sarah Counsell, the testatrix, also departed this life. Mary and Sarah Ogle died also in the life-time of the testatrix, and Ruth Ogle married the co-defendant Brabant, and they claim, in her right, the trust-money mentioned in the bequest upon the contingencies, as having lapsed by the death of Sarah Doo in the life-time of the testatrix. The plaintiffs, the children of Sarah Doo, claimed also the bequest in the will, and prayed, by the bill, to have the same secured for their benefit. The cause came on to be heard in Michaelmas term last, when Mr. Mansfield, for the plaintiff, contended, that although the event of the mother's dying under 21 did not take place, yet the intent of the testator must prevail, and words must be supplied in the will to favour that intention. The children were [394] equally objects of the testator's bounty with the mother. So in real estates, if the intention can be effectuated, the heir at law shall not prevail against the will. Jones v. Westcomb, Free. Cane. 316. 'Bradford v. Foley, Doug. 63. Statham v. Bell, Cowper, 40. Mr. Solicitor General [Sir John Scott] for the defendants. It is clear that the testator only meant to give this money to the children in case the mother died under 21, but not if she lived to attain that age ; for had she survived the testatrix after that period, it is impossible to doubt but that the children could not have claimed to the prejudice of the husband. It would not then have lapsed, but been vested: and therefore the question is, whether there is any case in which a certain absolute interest has been given upon the event of a party attaining 21, and that the legatee attains 21, and then dies in the life-time of the testator, that the Court...
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