Duffield and Wife, - Appellants; Duffield and Others, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1829 |
| Date | 01 January 1829 |
| Court | High Court of Chancery |
English Reports Citation: 6 E.R. 525
FROM THE COURT OF CHANCERY, ENGLAND.
Mews' Dig. xv. 413. S.C. 3 Bli. N.S. 260; in Ch. 2. Sim. and St. 544; 4 L. J. (O.S.) Ch. 189. Discussed in Percival v. Percival, 1870, L. R. 9 Eq. 393. Approved on point as to revocation in Doe d. Evers v. Ward, 1852, 21 L. J. Q.B. 145, 150. Considered on point as to interest taken under devise in Holmes v. Prescott, 1864, 33 L. J. Ch. 264.
[268] APPEAL from the court op chancery, england. DUFFIELD and Wife,-Appellants; DUFFIELD and others,-Respondents. [Mews' Dig. xv. 413. S.C. 3 Bli. N.S. 260; in Ch. 2. Sim. and St. 544; 4 L. J. (O.S.) Ch. 189. Discussed in Percival v. Percival, 1870, L. R. 9 Eq. 393. Approved on point as to revocation in Doe d. Evers v. Ward, 1852, 21 L. J. Q.B. 145, 150. Considered on point as to interest taken under devise in Holmes v. Prescott, 1864, 33 L. J. Ch. 264.] G. E. devises his estates at S. and H. to trustees, in trust, " in case there should be but one son of my daughter, who shall attain the age of 21 years, for such son, his heirs and assigns for ever; and in case there shall be two or more sons who shall attain the age of 21 years, then in trust for the second of such sons, his heirs and assigns for ever; and in case there shall be no son (of the daughter) who shall attain the age of 21 years, then in trust for such of the 525 I DOW & CLARK. DUFFIELD V. DUFFIELD [1827-1829] daughters (if any) as shall attain the age of 21 years, or before that, be married with consent of the trustees, her heirs and assigns for ever," etc. And as to the residue of the property, of whatever description', which the testator'should be possessed of or entitled to at the time of his death, in trust, to convert the whole into money, and invest the produce in the funds for the benefit of testator's daughter's children, in the manner in the will mentioned. And the testator empowered the trustees to apply what should appear to them to be a competent part of the rents, profits and proceeds of the estates and funds, for the maintenance of such of the children as should be presumptively entitled, during their minority. Testator having, after making his will, purchased some additional freehold property, executed a codicil, by which he revoked that part of his will which directed the sale of his residuary freehold property, and directed, " that the son of my daughter who shall first attain the age of 21 years, shall, on attaining that age, change his name for that of Elwes; and I devise to such son, on his attaining the age of 21 years and changing his name to Elwes, all my freehold property, lands etc., his heirs and assigns for ever." No son of testator's daughter by her said husband, during his infancy, and no daughter, during her infancy and non-marriage, entitled to the rents and profits of the S. and H. estates. [269] If the younger of the two sons should die in infancy, the elder would not be entitled to such rents and profits during his infancy, and that a third son becoming a second son would not be entitled to such rents and profits during his infancy. The rents and profits during the infancy of the sons, and the infancy and before marriage of the daughters, belong to testator's heir at law. As to the maintenance, there being two sons, infants, at the time of testator's death, the trustees should execute the power by applying part of the rents and profits of the premises first demised to the maintenance of the second of such sons during his infancy; and in case the second son died in infancy, and the elder became an only son, the trustees should apply part of such rents and profits to his maintenance during his infancy; and in case a third son should be born during the infancy of the first, the maintenance for the first son to cease, and part of the rents and profits to be applied for the maintenance of such third son; and supposing there were an only son and an infant unmarried daughter, the trustees would have no power to apply any part of the rents and profits to the maintenance of such daughter during her minority. No son of testator's daughter is entitled to the freehold estates mentioned in the codicil until his attaining the age of 21 years and assuming the name of Elwes; and until the happening of both events, the rents and profits of such estates belong to testator's heir at law. Per Lord Eldon.-I hope this will be a leading case. The late George Elwes, of High-street, Mary-let-bone, in the county of Middlesex, being seised and possessed of very considerable real and personal property in the counties of Middlesex, Berks, Suffolk, Essex, etc. in 1802 conveyed his manor of Marcham, and other hereditaments in the county of Berks, to trustees, to secure an annuity of £800 per annum to his wife, Amelia Maria Elwes, (afterwards Hicks,) for the support of herself, and the maintenance and education of his and her infant daughter and only child, Emily Frances Elwes, (afterwards Duffield,) during their [270] joint lives if they should so long continue to live together, with a proviso that in case the daughter should marry under age, or without the consent in writing of the father, the allowance for the daughter should cease, and the trust should be for securing a life annuity of £400 per annum for the wife for her separate use. In February 1810, the daughter, being then eighteen years of age, married Thomas Duffield at Gretna in Scotland, without the knowledge of her father, and was soon after married according to the English form in Mary-le-bone church. In March 1811 the father made his will, duly executed and attested, and thereby devised and bequeathed as follows : " This is the last Will and Testament of me George Elwes, of High-street, in the 526 DUFFIELD V. DUFFIELD [1827-1829] I DOW & CLARK. parish of Saint Mary-le-bone, otherwise Marybone, in the county of Middlesex, esquire: First, my will is, and I direct, that all my debts and funeral expenses, and the expenses of proving this my will, shall be paid in manner hereinafter mentioned and directed. And whereas by a settlement made previous to my marriage with my dear wife Amelia Maria Elwes, she is entitled to the dividends of £3333 6s. 8d. consolidated three per cent Bank annuities for her life in case she survives me, as or in the nature of a jointure or provision of maintenance and in lieu of dower, and the same Bank annuities are by the said settlement declared to be in trust, from and after my decease and the decease of my said wife, for the child or children of our marriage, in manner therein mentioned: and whereas under and by virtue of the limitations contained in a certain indenture of settlement, bearing date on or about the 7th day of October in the year 1802, and expressed to be made [271] between me George Elwes of the first part, my said wife Amelia Maria Elwes of the second part, and John Elwes, esquire, and Francis Wastie, esquire, of the third part, my said wife is entitled for her life to an annuity or yearly rent-charge of £400, issuing and payable out of the manor of Marcham, in the county of Berks, and divers freehold and leasehold messuages, farms, lands, tenements and hereditaments in the several parishes or places of Marcham, Frilford, Cotwell and Garford, and elsewhere, in the said county of Berks; now I do by this my will ratify and confirm the said jointure and annuity to my said wife. And I give and bequeath, unto my dear daughter Amelia Maria Frances Duffield (meaning thereby his daughter the appellant Emily Frances Duffield), the wife of Thomas Duffield, and her assigns, for and during the term of her natural life, all that my leasehold messuage or dwelling-house, with the appurtenances, situate in High-street, Mary-le-bone, aforesaid; and I do declare that the same shall, from and alter her decease, fall into the residue of my personal estate hereinafter devised: and I give and bequeatih unto my said daughter all my carriages, horses, household furniture and goods, plate, linen, china, stock of wines and other liquors, which shall be in and about the said messuage or dwelling-house, or in or about any other house or houses in which I may dwell or which I may inhabit at the time of my decease. And I give and bequeath unto' my brother John Elwes, of Portman-square, in the parish of Saint Mary-le-bone aforesaid, esquire, and Abraham Henry Chambers, of Bond-street, in the said county of Middlesex, banker (meaning the respondent, Abraham Henry Chambers), and their heirs, all that my freehold and copyhold [272] farm and estate situate lying and being in Southwood Park in the county of Suffolk, which I lately purchased from John Pytches, esquire, and the copyhold part whereof I have already surrendered to- the uses of my will, and also all that my freehold farm and estate at Haverhill in the county of Essex, to for and upon such trusts as are in and by this my will expressed and declared thereof; (that is to say) in case there shall be but one son of my daughter Amelia. Maria Frances Duffield by her present husband the said Thomas Duffield, who shall attain the age of 21 years, upon trust for such son, his heirs and assigns for ever; and in case there shall be two or more sons of the said Amelia Maria Frances Duffield, who shall attain the age of 21 years, then in triist for the second of such sons, his heirs and assigns for ever; and in case there shall be no son of the said Amelia Maria Frances Duffield by the said Thomas Duffield, who shall attain the age of 21 years, then upon trust for such of the daughters (if any) of the said Amelia Maria Frances Duffield by the said Thomas Duffield, as shall first attain the age of 21 years, or be married under that age with the consent of the trustees or trustee for the time being of this my will, and the, heirs and assigns of such daughter for ever; but if there shall not be any son of the said Aemlia Maria Frances Duffield by...
To continue reading
Request your trial
- Hume v Perpetual Trustees Executors and Agency Company of Tasmania Ltd
-
Thomas Duffield, and Emily Francis his Wife, Plaintiffs in the Court of Chancery-Appellants; Amelia Maria Elwes, Francis Const, George Law, Abraham Henry Chambers, William Hicks, George Thomas Warren Hastings Duffield, Caroline Duffield, Maria Duffield, Anna Duffield, Susan Eliza Duffield, Infants, Defendants in the same Court, by Original and Amended Bill, - Respondents
... ... issue of hisi or their bodies living at the time of his or their decease or deceases, or born within due time thereafter, then the share or shares of him, her, or them so dying and having issue, shall go and belong to his or their child or children, and shall not survive to or amongst the others or other of such two or three children : And my will is, that in case there shall be four or more children of the said Amelia, Maria Frances Duffield, by the said Thomas [269] Duffield, that the said John Elwes and Abraham Henry Chambers, and the survivor of them, his executors, administrators, and ... ...
-
Cook-Bodden v Kirkconnell
...for the defendants. Cases cited: (1) Assets Co. Ltd. v. Roihi, [1905] A.C. 176, applied. (2) Duffield v. Duffield(1829), 1 Dow. & Cl. 268; 6 E.R. 525, distinguished. (3) Frazer v. Walker, [1967] 1 A.C. 569; [1967] 1 All E.R. 649, dictum of Lord Wilberforce applied. (4) Goodtitle d. Parker v......
-
Cook-Bodden v M.I. Kirkconnell et Al
...(Revised), s. 23. Cases cited: (1) Assets Co. Ltd. v. Roihi, [1905] A.C. 176, applied. (2) Duffield v. Duffield (1829), 1 Dow. & CI. 268; 6 E.R. 525, distinguished. (3) Frazer v. Walker, [1967] 1 A.C. 569; [1967] 1 All E.R. 649, dictum of Lord Wilberforce applied. (4) Goodtitle d. Parker v.......