Dowding v Smith
| Jurisdiction | England & Wales |
| Judgment Date | 09 March 1891 |
| Date | 09 March 1891 |
| Court | High Court of Chancery |
English Reports Citation: 49 E.R. 213
ROLLS COURT
S. C. 10 L. J. Ch. 235.
[541] dowding v. smith. Feb. 26, March 9, 1891. [S. C. 10 L. J. Ch. 235.] Bequest "to A. and to the children of B., to be equally divided." Held, that they took per capita. The question in this cause was, in what shares the residuary estate of the testator was to be distributed as between the residuary legatees. The testator by his will, dated in 1825, gave a number of legacies, and among them specific legacies, and £400 a year to his wife, and a legacy of £500 consols to the children of Mrs. John Stockdale. He afterwards added a memorandum as follows:-" No legacies to be paid till after the decease of my dear wife Mrs. Nancy Stockdale, and then the residue of the property do devolve to my niece Miss Mary Stockdale of Piccadilly, and to the children of Mr. John Stockdale to be equally There were five children of John Stockdale, one of whom was born after tha decease of the testator, but in the lifetime of his widow. The testator's widow died in 1839, and the question, which arose between Miss Mary Stockdale and the five children of John Stockdale, was, whether the former took a moiety of the residue, or one-sixth part thereof only. [542] Mr. Koe, for Mary Stockdale, contended that she was entitled to a moiety of the residue; and that, at all events, those children only, who were born in the lifetime of the testator, were entitled to share in the residue. Mr. Roupell, contra, contended that the five children were entitled to share equally with Mary Stockdale, as the gift was to a class after the death of the widow. Mr. Pemberton and Mr. Wood, for other parties. the master of the rolls. I think there are several authorities bearing on this question which have not been cited, my difficulty arises from the repetition of the word to. The residue is to devolve to A. and to the children of B., to be equally divided. March 9. The case was again heard, when Mr. Koe, for Mary Stockdale, argued as before; and also contended that the words " equally to be divided " applied to both parties, and meant that the property was to be equally divided between Mary Stockdale and a class consisting of the children of John Stockdale, so that Mary Stockdale was entitled to a moiety. Mr. Roupell, for the children of John Stockdale, admitted that the words, "equally to be divided," applied to both parts of the sentence...
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