Dunne v Dunne
| Jurisdiction | England & Wales |
| Judgment Date | 19 April 1855 |
| Date | 19 April 1855 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 81
BEFORE THE LORDS JUSTICES.
S. C. 3 Sm. & G. 22; 1 Jur. (N. S.), 1056; 3 W. R. 380. See Stanford v. Roberts, 1882, 52 L. J. Ch. 51.
[207] dunne v. dunne. Before the Lords Justices. April 19, 1855. [S. C. 3 Sm. & G. 22 ; 1 Jur. (N. S.), 1056 ; 3 W. R. 380. See Stanford v. Roberts, 1882, 52 L. J. Ch. 51.] A testator devised lands to a married woman for life, with remainder to her son C. D. and his assigns for life (" he or they " not committing waste), with remainder to trustees to preserve contingent remainders, with remainders to the first and other sons of C. D. successively, with remainders over, and a proviso that the person or persons entitled in possession should with "his or their" family or 82 DUNNE V. DUNNE T DB 0. M. & 0. 208. families while " he or they" should continue so entitled, reside at the mansion-house, and make it " his or their " principal place of abode, or in default thereof, that the devises to "him and them" should cease, but not so as to prevent the remainders limited to " his or their" son or sons from taking effect, the testator declaring that the limitations to trustees to preserve contingent remainder should take effect after any cesser for nan-compliance with the condition. The testator gave the residue of his personal estate to trustees, to be invested in the purchase of lands to be settled to the uses of the devised lands. Held, that the proviso as to residence applied to the married woman, and was sufficiently distinct to create a forfeiture on her refusing to reside after she became a widow. Held, also, that the Court could not direct a portion of the residuary personal estate to be applied in improving the mansion-house. These were two appeals from a decision of Vice-Chancellor Stuart, reported in the 3d Volume of Messrs. Smale and Gift'ard's Reports (page 22), upon the construction and effect of the will of James Amphlett Grove, dated the 3d of May, 1842, whereby he devised lands to trustees and their heirs, to the use of Ann, the wife of Thomas Dunne, and her assigns for her life, and after her decease to the use of Charles Dunne (the youngest son of the said Thomas Dunne and Ann his wife) and the assigns of the said Charles Dunne for his life, he and they not committing any waste by felling any of the timber or trees growing on the devised estates, nor by suffering the several messuages, buildings, pleasure-ground and premises to go out of repair, and from and after the determination of that estate by forfeiture or otherwise to the use of Thomas Dunne, James Milnes and William Grove, and the survivors and survivor of them, his heirs and assigns, during the life of Charles Dunne, upon trust to support the contingent [208] uses and estates thereinafter limited from being destroyed, and from and immediately after the decease of Charles Dunne to the use of the first and every other son of Charles Dunne successively in tail general, with similar remainders to the use of Thomas Dunne (the eldest son of the aforesaid Thomas Dunne and Ann his wife) for life, with remainders in tail and ulterior limitations for life and in tail successively, with the interposition of limitations to trustees during the lives of the tenants for life to support the subsequent contingent uses, with an ultimate remainder to the testator's right heirs; and the will contained a name and arms clause, which was expressly made applicable to all and every the person and persons to whose use the estates were by the will devised or limited " in remainder from and after the decease of Ann Dunne." It also contained a proviso, which was as follows:-" Provided always, and my will is, that all and every the person or persons, who by virtue of the several devises and limitations hereinbefore contained, or of this proviso, shall become entitled to the possession of the several messuages, lands and other hereditaments hereinbefore by me devised in strict settlement as aforesaid, and shall be of the age of twenty-one years or upwards, do and shall, with his or their family or families, after becoming and while he or they shall continue so entitled, reside and dwell in my said capital messuage or mansion-house at the Four Ashes aforesaid, and make the same premises his or their principal place of abode; and that in case any such person or persons shall refuse or neglect to, or ahall discontinue to, reside and dwell at my said capital messuage or mansion-house at the Four Ashes aforesaid, then and in every such case and from thenceforth the devise and limitation or devises and limitations hereinbefore made and continued to him or them who shall so refuse, neglect or discontinue, of and concerning the messuages, lands and other hereditaments [209] hereby devised in strict settlement as aforesaid, shall cease, determine and become utterly void, and all the same messuages, lands and other hereditaments shall in such case immediately thereupon go to the next person in remainder under the devises and limitations by me hereinbefore made thereof, in the same manner as if the person or persons being tenant or tenants for life was or were actually dead, or being a tenant or tenants in tail was or were dead, without having any heir or issue inheritable to the estate tail then rested in the person or persons who shall so refuse, neglect or discontinue to make such residence as aforesaid; and provided also, that any such cessation or determination of the estate of any tenant for life shall not operate to exclude, 7DE 6. M. ttO.no. DUNNE V. DUNNE 83 prevent, destroy or prejudice any of the contingent remainders hereinbefore limited to his or their son or sons, or other person or persons, but that the remainders limited to the said Thomas Dunne the elder, James Milnes and William Grove, and their heirs, during the lives of such tenant for life, shall after such cessation or determination take effect and continue for preserving such contingent remainders, and giving them effect as they shall arise, and that such trustees and their heirs shall after such cessation or determination of any such estate for life, and during the suspension or contingency of any then next expectant remainder, but no longer, receive, pay and apply tho rents and profita of the same estates which would belong to such tenant for life, if such cessation or determination had not taken place, unto such person or persons, or for such intents and purposes, and in the same manner as under...
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