Elizabeth Pollard's Estate, and of the South-Eastern Railway Company's Acts
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1863 |
| Date | 01 January 1863 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 746
BEFORE THE LORDS JUSTICES.
S. C. 32 L. J. Ch. 657; 8 L. T. 710; 2 N. R. 404; 11 W. R. 1083.
By a will made before the 1st of January 1838 a testatrix, as to the "estates" wherewith it had pleased God to bless her, gave, devised and disposed thereof in manner following, that was to say : - First, she gave and devised to A. and B., and their heirs, certain specified hereditaments of gavelkind tenure (not using the word " estate "), to hold the said several premises, with their appurtenances, unto the said A. and B., their heirs and assigns, to and for the several uses, " estates," intents and purposes thereinafter expressed, limited and declared of and concerning the same (that was to say), to the use of her grandson S. for his life, and from and after the determination of that estate, to the use and behoof of the said A. and B., and their heirs, during the life of S., in trust to preserve the contingent uses and remainders thereinafter limited; and from and immediately after the decease of S., to the use of all and every of the child and children, if more than one, of his body lawfully begotten or to be begotten (without any words of inheritance), but if he should die without leaving such issue, then to the use and behoof of her grandson C. for his life. Then there were trusts to preserve contingent uses and remainders, and then the property was to go to the children of C. in precisely the same terms, without any words of inheritance ; but if C. should die without leaving such issue, then to the use and behoof of the testatrix's three granddaughters D., E. and F., their heirs and assigns for ever, as tenants in common. These dispositions were followed by a devise of other lands to A. and B., to uses in favour first of C. and his children, and then of S. and his children in precisely the same terms mutatis mutandis. But beyond what is stated, there was no devise of real estate in the will. S. died leaving children who survived him, but there was no child either of S. or C. at the date of the will or of the testatrix's death. Held, that the children of S. took only life-estates in joint-tenancy in the specified hereditaments, and that, subject to such life-estates, the beneficial inheritance descended as undisposed of to the testatrix's gavelkind heirs, the gifts over to C. and his children, and to D., E. and F., their heirs and assigns, having failed by reason of S.'s death leaving children. Per the Lord Justice Turner. Where, in a will operating under the old law, there is a devise of lands without words of limitation followed by a devise over, the question whether the first devisee takes in fee is one which in each case must depend upon the intention to be collected from the will ; and the devise over upon a contingency, as part of a continued series of limitations in the above will, was not sufficient to manifest an intention to give the fee to the children of S. One of S.'s children mortgaged his interest in the property. Held, that thereby the joint-tenancy so far as it affected that share was severed, and the intestacy as to it after his death was accelerated. This was a petition which came on to be heard originally before their Lordships in consequence of Vice-Chancellor Kindersley having advised, when [542] counsel, on the construction of a will on which the question arose. The petition was that of the personal representative of Samuel Lewin the younger for the payment to her of one-fifth part of a fund in Court, which had arisen from moneys paid in by the Soufch-Eastern Railway Company under the provisions of their Acts as the purchase-money of some lands in Kent of gavelkind tenure taken by them for the purposes of their railway. The lands thus taken by the company formerly belonged to Elizabeth Pollard, and when taken by the company they were in the possession of the devisees under her will. By her will, dated the 16th October L7H9, she had disposed as follows: - " And as to the estates wherewith it has pleased Uod to bless me, 1 give, devise and 3DBG. J. ft 8. 543. IN BE POLLARD'S ESTATE 747 dispose thereof in manner following (that is to say): First, I give and devise unto my daughter Mary Miller Lewin and Richard Jamea of Ightham aforesaid, esquire, and their heirs,"-then there followed an enumeration of several manors (including the manor,of Hawkewell), lands, tenements and hereditaments, not using the word " estate "-" To hold the said several messuages, tenements, farms, lands, hereditaments and premises, with their appurtenances, unto the said Mary Miller Lewin and Richard James, their heirs and assigns, to and for the several uses, estates, intents and purposes hereinafter expressed, limited and declared of and concerning the same (that is to say): To the use of my grandson Samuel Lewin for and during the term of his natural life, he keeping the same in good repair and doing or committing no manner of waste or spoil thereupon. And from and after the determination of thit estate, to the use and behoof of the said Mary Miller Lewin and Richard James and their heirs, for and [543] during the natural life of the said Samuel Lewin, in trust to preserve the contingent uses and remainders hereinafter limited; and from and immediately after the decease of the said Samuel Lewin, to the use of all and every of the child and children, if more than one, of his body lawfully begotten or to be begotten "-without any words of inheritance ; " but if he shall die without leaving such issue, then to the use and behoof of my grandson Charles Devereux Lewin for his life." . Then there were trusts to preserve contingent uses and remainders, and then the property was to go to the children of Charles Devereux Lewin in precisely the same terms, without any words of inheritance ; and then the will continued thus :-" But if he shall die without leaving such issue, then to the use and behoof of my three granddaughters, namely, Elizabeth, Henrietta and Sophia Jane, their heirs and assigns for ever, as tenants in common, and not as joint-tenants." These dispositions were followed by a devise of other lands to Mary Miller Lewin and Richard James to uses in favour first of Charles Devereux Lewin and his children, and then of Samuel Lewin and his children in precisely the same terms mutatis mutandis. But beyond what has been stated there was no devise of real estate in the will. Elizabeth Pollard died in the year 1791, leaving her daughter Mary Miller...
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