Emily Vernon, and Others, - Appellants; William Wright, and Others, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 20 July 1858 |
| Date | 20 July 1858 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 15
House of Lords
Mews' Dig. i. 330; xiv. 848; xv. 853. S.C. 28 L.J.Ch. 198; 4 Jur. N.S. 1113; and, below, 2 Drew. 439. Considered on point as to rule in Mandeville's Case (Co. Litt. 26 b), in Allgood v. Blake, 1872, L.R. 7 Ex. 356; and Moore v. Simkin, 1885, 31 Ch.D. 99.
Will - Estate Tail - Fee Simple - "For Ever" - "Right Heirs of" - Account.
EMILY VERNON, and Others,-Appellants; WILLIAM WRIGHT, and Others,- Respondents [February 12, 15, June 2, July 20, 1858]. [Mews' Dig. i. 330; xiv. 848; xv. 853. S.C. 28 L.J.Ch. 198; 4 Jur. N.S. 1113; and, below, 2 Drew. 439. Considered on point as to rule in Mandeville's Case (Co. 15 VII H.L.C., 36 VERNON V. WRIGHT [1858] Litt. 26 6), in Allgood v. Blake, 1872, L.R. 7 Ex. 356; and Moore v. Simkin, 1885, 31 Ch.D. 99.] Will-Estate Tail^-Fee Simple-" For Ever "-" Eight Heirs of "-Account. Devise " to the right heirs of my grandfather S., deceased, by M. his second wife, also deceased, for ever :" Held, that the first words created an estate tail, which wasi not enlarged into an estate in fee by the use of the words " for ever." Trustees entered into- possession of rent and profits, and paid them over under a trust deed to* a married woman to her separate use; it afterwards appeared that she was not entitled to receive them, but that upon the true construction of a will they ought to have gone to another person. That person filed a bill and a decree was made in his favour, but an. account of the rents and profits was only ordered from the date of the filing of the bill: Held, that whether an account should be directed from the filing of the bill, or from an, anterior time, is a matter of discretion, and that in this case the discretion had been rightly exercised. The Respondent was allowed to object to' a part of the decree though he had not brought any cross appeal. [36] Sir Thomas Samwell, Bart., of Upton, in the county of Northampton (who will, for convenience' sake, be afterwards described as Sir Thomas, the grandfather) was twice married. By his first wife he had one son, Thomas, and a daughter, Mary. Thomas succeeded him in the title, and will be described as Sir Thomas, the testator. Mary married Stephen Langham, and had issue, three daughters, Millicent, Frances Ann, and Phillis. Millicent Langham married William Drought, and had issue, Thomas Fuller Drought, Frances Drought, and Juliana. Drought. Frances Ann Langham and Phillis Langham were never married. They were the testatrixes, whose wills were the subject of discussion. Sir Thomas, the grandfather, had, by his second wife, Mary, the daughter of Sir Gilbert Clarke, a son, Wenman (who. succeeded to the title on the death, without issue, of his half-brother, Thomas), and a daughter, Catherine. This daughter married Thomas Atherton Watson, and had three sons and one daughter. The sons were Thomas Samwell Watson, Wenman Langham, Watson, and Atherton Watson. The daughter, Charlotte Felicia., married Benjamin Tinley, and had issuet, two. daughters, Clarissa Felicia Tinley and Charlotte Henrietta. Tinley. The former married a Mr. Woodford, and left issue, Wenman Langham Woodford, one of the Respondents; the latter married William Wright, the other Respondent. Sir Thomas, the testator, had no lawful issue, and by his will, dated November 1st, 1778, devised the estates (which were subject to terms still unsatisfied and out-standing) to his illegitimate son, for life, with remainder to the sons of his said son in tail male, with remainder to Wenman Samwell, the testator's brother of the half-blood, for life, with remainder to his sons in, tail male-, with remainder to Thomas Samwell Watson, a son of Catherine, [37] the testator's sister of the half-blood, for life, with remainder to his sons in tail male, with remainder toi Wenman Langham Watson, another son of Catherine, for life, with remainder to his sons in tail male, with remainder toi Thomas Fuller Drought, son of Millicent Drought, a, niece of the testator of the whole blood, for life, with remainder to his sons in tail male, with the ultimate reversion to his, the testator's, own right heirs for ever. And the will directed, that Thomas Samwell Watson, and Wenman Langham Watson, and Thomas Fuller Drought, on succeeding to the estates should take the surname and arms of Samwell. The testator died in 1779. His illegitimate son took the estates and died without issue. The testator's half-brother, Wenman Samwell, succeeded to the title, and afterwards to the estates. On the death of Wenman Samwell without issue, the title became extinct. Thomas Samwell Watson then took the estates under the testator's will, and assumed the name and arms of Samwell, and will, in the course of the case, be called Colonel Samwell. He died without issue. Each of the other persons named as a tenant for life succeeded in turn to the estates, and also, died without issue; and no one of the successive tenants for life ever did any act to bar the entail. On the '[16 VERNON V. WRIGHT [1858] VII H.L.C., 38 death, without issue, of Sir Thomas, the testator, his nieces, Millicent, Frances Ann, and Phillis, became his co-heiresses;, entitled to the ultimate remainder given by his will, subject to the special limitations therein contained. While Colonel Samwell was in possession of the estates, under the will of Sir Thomas, the testator, namely in April 1827, Frances Ann Langham and Phillis Lang-ham made their wills;. Each will, with the exception of the name of the testatrix, and of the first devisee, was in precisely the same terms. Each testatrix gave all her property, in the [38] first instance, to her sister for life; then to trustees, " in trust, for my two- nieces, Frances Drought and Juliana Drought, daughters of my late sister, Millicent Drought, for and during their lives, and the longest liver of them. And, from, and after both their decease, for all and every the child and children, of my said nieces, and the daughter and daughters of my nephew, Thomas Fuller Drought, equally between them, share and share alike," etc. After certain other provisions, unnecessary to mention, the will concluded thus:-" And for default of all such issue, then upon, trust for the right heirs of my grandfather, Sir Thomas Samwell, Baronet, deceased (the father of my late uncle, Sir Thomas Samwell), by Mary, his second wife, also deceased, who was the daughter of Sir Gilbert Clarke, Knight, for ever." Phillis Langham died in 1828 and Frances Anne Langham in 1830; Juliana Drought died in 1845; and Frances Drought in 1849; all of them without ever having been married. Colonel Samwell (the second tenant fo r life under the will of Sir Thomas1, the testator) made a will by which he devised all his estates whatsoever, etc., to hisi wife. He died in 1831, and his widow devised all her estates to Emily Yemen, under whom the Appellant now claimed. Thomas Fuller Drought, the last of the persons named as tenants for life in the will of Sir Thomas, the testator, died in 1843, without issue, and the Samwell estates then devolved upon Atherton Watson (who had not been named in the will) as right heir of Sir Samwell, the testator; and, on his death, without issue, in 1851, the question arose as to the construction to be given to the ultimate limitation in the wills of Frances Ann and Phillis Langham, whose title to their undivided two-third shares of the property had then taken effect in possession. [39] The trustee named in the will of the widow of Colonel Samwell took possession of the estates on the death of Atherton Watson. In 1851, Charlotte Henrietta, the wife of the Respondent, Wright, executed a disentailing deed as to her undivided moiety of the estates devised under the wills of Frances Ann and Phillis Langham, and limited the same, in the event of her death, to her husband. She died shortly afterwards, and he became her personal representative. An action, of ejectment was brought by Wright, but it was then found that there were outstanding terms, and so the action was abandoned, and a bill was, on the 9th August 1852, filed in the Court of Chancery. The bill set forth the facts already stated, and prayed that it might be declared tha,t the Plaintiff, Wright, was entitled to one-third part of the Samwell estates, and that an account of the rents thereof, received since the death of Atherton Watson, might be ordered. Answers were put in, and the cause was heard before Vice-chancellor Kindersley, who- held that the words in the will created a limitation in tail (2 Drewr. 439). This was an appeal against that decision. The case was partly argued in the beginning of the session ; it was then adjourned to be heard before the judges, who were accordingly summoned. Mr. Justice Coleridge, Mr. Justice Crompton, Mr. Justice Crowder, Mr. Justice Willes, and Mr. Baron Watson attended. The Attorney-General (Sir R. Bethell) and Mr. Swanston for the Appellant.- The decision of the Court below was wrong in treating Colonel Samwell merely as one of a series of successive tenants in tail. Two propositions may be contended for: First, the words of the devise, excluding for the present the words " for ever," may be taken as simply equivalent to a [40] designatio personae, and operate only as words of description. They denote a special heir, and if not accompanied with wordsi of limitation, would have no other effect. So' considering them, Colonel Samwell would only have taken an estate for life. But secondly, assuming them to be words of description not only of the person, but of the quantity of the estate, so- that the estate would, if they stood alone, be only an estate tail, yet the added words " for ever " 17 VII H.L.C., 41 VERNON V. WRIGHT [1858] eontrol and give a sense to the other words, and so convert an estate tail into an estate in fee simple. The Vice-chancellor thought that this case could not be...
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