Emuss v Smith
| Jurisdiction | England & Wales |
| Judgment Date | 23 November 1848 |
| Date | 23 November 1848 |
| Court | High Court of Chancery |
English Reports Citation: 64 E.R. 323
HIGH COURT OF CHANCERY
Distinguished, Martin v. Martin, 1866, L. R 1 Eq. 466; Bowen v. Barlow, 1871-72, L. R. 11 Eq. 458; L. R 8 Ch. 171; Castle v. Fox, 1871, L. R 11 Eq. 552; Frewen v. Frewen, 1875, L. R. 10 Ch. 612 (n.). Not followed, Saxton v. Saxton, 1879, 13 Ch. D. 362. Explained, In re Isaacs [1894], 3 Ch. 506. Followed, In re Pyle [1895], 1 Ch. 724.
[722] emuss v. smith. Nov. 22, 23, 1848. [Distinguished, Martin v. Martin, 1866, L. E, 1 Eq. 466; Bmven v. Barlow, 1871-72, L. E. 11 Eq. 458: L. E. 8 Ch, 171; Castle v. Fox, 1871, L. E. 11 Eq. 552; Frewen v. Frewen, 1875, L. E. 10 Ch. 612 (n.). Not followed, Saxton v. Saxton, 1879, 13 Ch. D. 362. Explained, In re Isaacs [1894], 3 Ch. 506. Followed, In re Pyle [1895], 1 Ch. 724.] A testator devised an estate N., by his will, the limitations of which he varied by a codicil, both dated prior to the Wills Act, and afterwards he entered into a contract by which he agreed to give, after his death, to A. alone the option of purchasing the estate N., and also another estate W., upon the purchase of which the contract for an option was entered into. By a second codicil, made after the Wills Act, reciting the purchase of the estate W., he devised that estate. A. enforced a sale to him by suit against the devisees of the testator. Held, that the purchase-monies of estates N. and W. devolved according to the limitations of the will, which would have been applicable to these estates in case there had been no sale. The testator borrowed 2000 to enable him to pay the purchase-money of estate W., and that sum was found by the Master to be a lien on the estate at the testator's death. Held, that the Wills Act did not alter the course of administering the assets, but that the devisee had a right to have the personal estate of the testator applied towards the discharge of the lien; and that, failing that, he had a right to have descended real estate so applied; but that, both these resources failing, the devisee was not entitled to have contribution from estates of the testator comprised either in a particular, or in a residuary, devise. A testator devised all his freehold estate at B., which he purchased of C., by a will dated before, and republished by a codicil dated after the Wills Act; but a small piece of land purchased with the estate by the testator of C., and always held and mixed with it, was leasehold. After making the codicil the testator purchased the fee of that small piece of land, and the leasehold interest was merged. Held, notwithstanding the 24th section of the Wills Act, that the codicil did not pass the after-acquired fee. Mr. John Nash was, at the date of his will, seised in fee of various hereditaments, and, among them, of a [723] farm and lands at Oddingley, in the county of Worcester, 324 EMUSS V, SMITH 2 DE G. & SM. 724. which he had purchased of John Phillips, and which, for the sake of distinction, was called Nash's own farm; and he was also possessed of various other freehold, and of some leasehold, lands. By his will, dated the 22d of October 1830, he 'devised Nash's own farm to John Emuss, Isaac Green and Thomas Gale Curtler, and their heirs, to the intent that his sister, Elizabeth Smith, and her assigns should during her life receive an annuity of 50 thereout, and subject thereto to the use of the testator's nephew, Thomas Grove Smith, for his life, with remainder to the use of the said trustees during the life of his said nephew, in trust to preserve contingent uses, with contingent remainders, in various alternative events, to the use of his children, as tenants in common in fee- to the use of the testator's second nephew, John Clarke Smith, for life, with limitations to his children as tenants in common in fee, or to the use of the testator's nephews, George Clarke Smith and William Herbert Smith, for life, and their children in fee. The testator also devised another freehold estate described as situate near Falsam Pits, in the borough of Droitwich (except the leasehold garden or garden ground there, then. held under the Corporation of Droitwich, and also a piece of freehold land, also situate in the borough of Droitwich, called Gassens), unto John Emuss, Isaac Green, Thomas Gale Curtler and their heirs, ifo the use of the said George Clarke Smith for life, with contingent remainders in the different events therein specified to his children as tenants in common in fee-to the use of John Clarke Smith for life, and his children in fee, or to the use of William Herbert Smith for life, and his children in fee. The testator also devised the above-mentioned gardens adjoining the last-mentioned freehold premises at Falsam Pits, and which were held by lease under the Corporation of Droitwich, unto the said trustees, their executors, administrators and assigns, for all the residue of the term of [724] years unexpired in the same at the time of his decease, upon trtist for providing in manner therein mentioned for payment and performance of the rent and covenants reserved and contained by and in the then present or any renewed lease of the said premises, and for renewing the then present and future leases thereof, and subject thereto, upon trust for the said George Clarke Smith for his life, and after his death in trust for the persons who-should by virtue of that his will be entitled to the said freehold premises at Falsam Pits. The testator also devised other property by the following description:-"All that my freehold estate at or near Brickhouse Lane, in the aforesaid borough of Droitwich, which I purchased of Mr, Brooks, with the appurtenances," to the use of his nephew, William Herbert Smith, for his life, with remainder to the use of trustees to preserve contingent uses, and with contingent remainders to the children of the said William Herbert Smith in fee, or to the use of the testator's nephews, John Clarke Smith, Thomas Grove Smith and George Clarke Smith, for life, and their issue respectively in fee, in the different events which the will specified. The testator by his will also gave leasehold premises, called the Hill farm, unto the same trustees, their executors, administrators and assigns, for the residue of the term of years therein, upon trust for William Herbert Smith and his assigns for his life, and after his decease in trust for the persons who should by virtue of the will be entitled to the estate at Brickhouse Lane. And as to all the rest and residue of his freehold and leasehold hereditaments, of what nature soever, the testator gave, devised and bequeathed the same unto and to-the use of the said trustees, their heirs, executors, administrators and assigns, according to the several legal qualities thereof...
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