Elizabeth Sheriff Russel v Robertson Buchanan, Nathaniel Nicholls, and Frances Russel, Spinster, Mary Russel, Spinster, Elizabeth Russel, Spinster, Ellen Russel, Spinster, and Jane Russel, Spinster, Infants under the Age of Twenty-one Years, by Andrew Buchanan, their Guardian
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1834 |
| Date | 01 January 1834 |
| Court | Exchequer |
English Reports Citation: 149 E.R. 883
EXCH. OF PLEAS.
S. C. 4 Tyr. 384; 3 L. J. Ex. 194; S. C. in Equity, 7 Sim. 628. Referred to, Lushington v. Penrice, 1868, 18 L. T. 599. Distinguished, In re Wrightson, [1904] 2 Ch. 95. Applied, Festing v. Allen, 1843, 12 M. & W. 279. Explained, Taylor v. Frobisher, 1852, 5 De G. & Sm. 201.
exchequer of pleas. elizabeth sheriff russel v. robertson buchanan, nathan iel nicholls, and frances russel, Spinster, mary russel, Spinster, elizabeth russel, Spinster, ellen kussel, Spinster, and jane russkl, Spinster, Infants under the Age of Twenty-one Years, by andrew buchanan, their Guardian. 1834. -R. B. devised certain freehold premises to his wife during widowhood, and after her death or marriage to his nephew R. B. R. for life, and after his decease " unto and equally between all and every the children of his said nephew R. B. R., their heirs and assigns respectively, as tenants in common, if more than one, and if there should be but one child, then the whole to such only child, his or her heirs and assigns ; but in case there should be no child or children of his said nephew R. B. R. living at the time of the decease or marrying again of the testator's said 884 : KUSSET, V. BUOHANAN 2 C. & M. 562. wife, then over;" and he devised the residue of his real estate to certain other persons in fee. By a codicil, bearing the same date as the will, and executed at the same time, the testator directed " that neither the said R. B. R., nor any or either of hia issue, shall, by virtue of this my will, take or he considered as entitled to a vested interest or interests, unless and until they shall respectively attain the age of twenty-one years." The testator's widow died in the lifetime of R. B. R., who, (having attained twenty-one), upon her decease, entered into possession of the devised estate, and after-wards died, leaving several children him surviving, all under the age of twenty-one years :-Held, that the devise to the children, and the substituted devises over, failed of effect, and that the devised estate descended to the testator's heir-at-law. [S. C. 4 Tyr. 384; 3 L. J. Ex. 194; S. C. in Kquity, 7 Him. 628. Referred to, Lwhingtun v. Penrke, 1868, 18 L. T. 599. Distinguished, In rt, WritjUxtm, [1904] '2 Ch. 95. Applied, Ft sting v. Allen, 1843, 12 M. & W. 279. Explained, Taylor v. frobishcr, 1852, 5 De Q. &'Sm. 201.] By order of the Vice-Chancellor, the following case was sent for the opinion of this Court: - Kobert Brown, late of Streatham, in the county of Surrey, Ksq., deceased, was at hia death possessed of a very [562] large personal estate, and was also in his lifetime, and at the time of making his wilt hereinafter mentioned, and from thenceforth, and at the time of hia death, seised in fee simple in possession of and in divers hereditaments and premises, and amongst others of and in a certain mansio house, and certain messuages, lands, and hereditaments situate at Streatham aforesaid, and hereinafter mentioned ; and, being so seised, the said Robert Brown did, when he was of sound and disposing mind, memory, and understanding, and on the 12th day of March, 1814, duly make and publish his last will arid testament in writing of that date, and which was executed by him and attested so as to pass freehold estates of inheritance, whereby, after certain bequests, he gave and devised to his wife, Susanna Brown, all that his capital mansion-house, with the lands, tenements, and hereditaments thereunto belonging, and wherein he then resided, situate at Streatham, in the county of Surrey, which ,he had purchased of Lord William Russell, together with all the new buildings and additions made thereto, arid all other his messuages, lands, tenements, and hereditaments whatsoever, at Streatham aforesaid, to hold the same unto his said wife and liar assigns for and during the term of her natural life; provided always, that in case his said wife should at any time after his decease many again, then the said testator did thereby absolutely revoke, annul, and make void all and every the devises and bequests in his said will contained in her favour, and instead and in lieu thereof he gave and bequeathed to the executors of his said will, and the survivor of them, his executors and administrators, for and during the term of the natural life of his said wife, the annuity in the said will mentioned ; and from and immediately after the decease or marrying again of his said wife, the said testator gave and devised to his nephew, Robert Brown Russel, all those his said capital and other messuages, lands, tenements, hereditaments, and premises [563] thereinbefore mentioned, situate and being at Streatham aforesaid, with their appurtenances, to hold to his said nephew Robert B. Russel, and his assigns, for and during the term of his natural life; and from and after the decease of his said nephew R. B. Russel, the said testator1 gave and devised the said capital and other messuages, lands, tenements, hereditaments, and premises at Streatham aforesaid, with their appurtenances, unto arid equally between all and every the children of his said nephew R. B. Russel, lawfully begotten, their heirs and assigns respectively, as tenants irr common, and not as joint tenants, if more than one, and if there should be but one child, therr the whole to such only child, his or her heirs and assigns; but in case there should be no child or children of his said nephew, R. B. Russel, living at the time of the decease or marrying again of his the testator's said wife, then he gave and devised the said capital arid other messuages, lands, tenements, hereditaments, and premises at Streatham aforesaid, unto his said executors, and the survivor of them, his executors and administrators, in trust and for the sole;and separate use and benefit of his the testator's niece, Mary Russel, exclusive and independent of the control, debts, or engagements of any husband or husband, she might happen to marry; and from and after the decease of his said niece, Mary 20. &M.B64. RUSSEL V. BUCHANAN 885 Jiussel, in trust for all and every her child and children lawfully to be begotten, if more than one, their respective heirs and assigns, as tenants iti common, and not as joint tenants, and if but one child, then in trust for such only child, his or her heirs or assigns; and in case of the respective deceases of the said Robert B. Kussel and Mary Rnssel, without leaving any child or children who should be living at the decease or marrying again of his the said testator's said wife, then he gave and devised his said capital knd other messuages, lands, tenements, hereditaments, and premises, with the appurtenances, at Htreatham aforesaid, unto and equally be-[564]-tvveen Kobert Coster, John Coster, and Mary Ann Squarrey, the children of Kobert Coster and Hannah Coster, their heirs and assigns respectively, as tenants in common, and not as joint tenants; and the said Robert Brown, by his said will, gave and bequeathed the rest, residue, and remainder of his estate and effects whatsoever and wheresoever, and of what nature or kind soever, from and after the decease or marrying again of his said wife, the said Susanna Brown, which should first happen, unto and between his said nephew Kobert Brown Kussel, and his said niece Mary Kussel, spinster, in equal shares and proportions, share and share...
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