Easements–‐The Right to Wander and to Picnic
| Date | 01 November 1955 |
| Author | D. G. Valentine |
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00328.x |
| Published date | 01 November 1955 |
Nov.
1966
NOTES
OF
CASES
599
Justice Harman in
Re Midgley, decd., Barclays Bank Ltd.
V.
Midgley,
the better view, on the authorities, was that,
if
the
undisposed-of share was subject to an express trust for sale in the
will, it bore only a rateable part; in the absence of an express trust
for sale,
it
bore all the pecuniary legacies. This view, supported by
Re Beaumont
[1955] Ch. 462, was based on the wording of section
83
of the Administration of Estates Act, 1925, as interpreted in
Re McKee
[I9311 2 Ch. 145:
it
was, briefly, that section 33 (2) is
the only place in the Act which directs the payment of pecuniary
legacies out of undisposed-of property, and that
it
applies only
where there is no express trust for sale in the will;
so
that, where
there is such an express trust for sale, section
33
(2) is excluded,
and the pre-1925 rules apply. The rule
his Lordship has adopted is that undisposed-of property always
bears the whole of the pecuniary legacies. This rule is based on
Part
I1
of Schedule
I
to the Act which sets out the order of
application of assets for payment of debts where the estate is
solvent. Paragraph
1
reads
:
“Property of the deceased undisposed of by will, subject
to the retention thereout of a fund sufficient to meet any
pecuniary legacies.
”
His Lordship interpreted this as meaning that in every case a fund
for pecuniary legacies must be retained. Counsel’s argument does
not appear in the reports
so
far available,’ and
so
it
is
not yet clear
whether it was argued that “subject to the retention” means
“
subject to the retention where this is necessary.”
Until the Court of Appeal have pronounced on the matter, the
true rule remains uncertain. Executors are bound to seek an
order of the court in almost every case, and cannot safely rely on
Re Beaumont
or
Re Midgley.
Mr.
Justice Harman’s decision has upset that view.
D.
C.
P.
EASEMENTS-THE RIGHT
TO
WANDER
AND
TO
PICNIC
CERTAIN
aspects of the law of easements that one believed had been
settled for over a century have been disturbed by the decision of
Danckwerts
J.
in
Re Ellenborough Park
[1955] 3 W.L.R. 91;
[1955] 2 All E.R. 38.
In
1855
a
vendor sold land surrounding Ellenborough Park as
building plots and granted to
J.
P.
“the full enjoyment
. . .
at
all times hereafter in common with other persons to whom such
easements may be granted of the pleasure ground
. . .
called
Ellenborough park.’’ This action was brought by a successor in
title to
J.
P.
to determine whether the
1855
grant created merely
a personal covenant
or
a legal easement.
Danckwerts
J.
held that the grant of “the full enjoyment
of
the pleasure ground” meant the right “to enjoy the ground in
The relevant facts are very simple.
1
[1955]
Ch.
576;
[1955]
3
W.L.R.
119; [1955] 2
All
E.R.
625.
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