Fitch v Weber
| Jurisdiction | England & Wales |
| Judgment Date | 15 March 1848 |
| Date | 15 March 1848 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 1117
HIGH COURT OF CHANCERY
S. C. 6 Hare, 51; 67 E. R. 1077 (with note).
6 HARE, 145. FITCH V. WEBEK 1117 [145] fitch v. weber. March 7, 8, 9, 15, 1848. [S. C. 6 Hare, 51; 67 E. E. 1077 (with note).] The testatrix devised and bequeathed her real and personal estate in trust, as to the real estate for sale, as soon after her decease as conveniently could be, and declared that the trustees should stand possessed of the proceeds of the sale as a fund of personal and not real estate, for which purpose such proceeds, or any part thereof, should not, in any event, lapse or result for the benefit of her heir at law; and, after giving legacies, the testatrix directed her trustees to pay and apply the residue of her estate and effects as she should, by any codicil to that her will, direct or appoint. The testatrix made no codicil. Held that the heir at law was entitled to the proceeds of the real estate undisposed of by the will. This case is reported on the exceptions to the finding of the Master on the question, who was the heir at law of Anne Taylor 1 (Supra, p. 51.) The cause now came on for further directions, and the principal question was whether, according to the true construction of the will, the heir at law or the next of kin of the testatrix took the proceeds of the sale of the real estate undisposed of by the will. The will was dated in September 1839, and, after giving thereby various legacies out of her personal estate to charities, the testatrix proceeded: " I give, devise, and bequeath all my messuages, warehouses, lands, tenements, and hereditaments, and all other my real and personal estate, whatsoever and wheresoever, unto my friends B. Thomas and P. E. Weber, their heirs, executors, administrators, and assigns, according to the nature and quality thereof respectively, upon trust, that they, my said trustees, the survivor of them, or the trustees or trustee for the time being of this my will, do and shall, with all convenient speed after my decease, collect and get in all monies due and owing to me, and make sale and dispose of all my said messuages, warehouses, lands, tenements, and hereditaments whatsoever and wheresoever, and also of such parts of my personal estate as shall be of a saleable nature, either by public auction or private sale." [Powers of sale, and to give sufficient receipts for the purchase-money.] "And I declare that my said trustees or trustee shall stand and be possessed of the proceeds to arise [146] from the sale of my said messuages, lands, tenements, and hereditaments, as a fund of personal and not real estate; for which purpose I declare that such proceeds or any part thereof, shall not, in any event, lapse or result for the benefit of my heir at law. And out of such proceeds and other my personal estate, after payment out of such last-mentioned personal estate of the charitable legacies aforesaid, I direct the payment and investment of the several legacies hereinafter expressed." The testatrix then gave many legacies, and directed that the legacy duty should be paid by her executors out of the proceeds to arise from the sales thereinbefore directed, and other her personal estate. And the testatrix added: " And as to the residue of my estate and effects not hereinbefore specifically bequeathed, I direct my said trustees or trustee to pay and apply the same to such person or persons, for such uses, and upon and for such trusts, intents, and purposes as I shall by any codicil to this my will duly executed direct or appoint." The testatrix made no codicil; she died soon after the date of her will, and the will was proved by P. E. Weber in November 1839. The suit was instituted for the administration of the trust. The state of the family of the testatrix, and the relation of the parties in...
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