Foster and Others against Cook and Others
| Jurisdiction | England & Wales |
| Judgment Date | 03 August 1791 |
| Date | 03 August 1791 |
| Court | High Court of Chancery |
English Reports Citation: 29 E.R. 575
LINCOLN'S INN HALL.
foster and Others against cook and Others. .Lincoln's Inn Hall, 3d Aug. [1791]. Testator (his wife being enceint) gave his estate to trustees, to apply profits for the use of the child during infancy, and at twenty-five to the child in fee; but in case the child should die before twenty-five without leaving issue, remainder over. The child was still-born. After which testator made a codicil, affirming his will, and died without issue. Forty-three weeks after his decease, the widow is brought to bed of a son (who is found to be legitimate). The son cannot take the estate, but the devisees over shall take. (Vide Sir J. Simeon's MS. Note, 3 Bro. C. C. 350.) In the will, the testator gave his wife an annuity; she shall, notwithstanding, have her dower.(l) He also ordered the trustees to possess themselves of his estates and substance, and to pay debts ; this is a charge of the debts on the real estate. And the assets shall be marshalled for the legatees, to let them in so far as the personal estate has paid towards the debts. [Birth of the posthumous child held no revocation of the will. (Vide Sir J. Simeon's Note, 3 Bro. C. G. 350.)] Henry Cook seised of freehold messuages, &c., in Bucks, of the yearly value of 130' subject to mortgages thereon; and also possessed of two leasehold estates for long terms : and of other personal estates (Jane his wife, with whom he had intermarried on the 7th June 1779, being then enceint of a child), made his will, 22d June 1779, duly executed and attested to pass real estate, and thereby gave to the plaintiffs (the trustees) all his real and personal estate whatsoever, upon trust to pay his wife an annuity of 50 a-year during widowhood, and in case she should marry again, then to pay her an annuity of 30 only; and testator desired his trustees to permit his wife to have the use of his mansion-house, and such furniture therein as she should think proper, during her widowhood, and not otherwise ; and he thereby ordered and directed, that the child, wherewith his said wife was then pregnant, should be nourished and brought up with his said wife, until it should attain twelve years of age ; and desired his trustees should improve and manage his real and personal estates, and all other his substance and effects whatsoever, in the best manner they could, for the benefit of the said child in all needful and necessary support and maintenance whatsoever, at their discretion (and gave particular directions [348] for the maintenance and education of the child at different ages); and the testator then disposed of his real and personal estates in the manner following; " and when my child shall arrive at its full age of twenty-five years, then I give, devise, and bequeath, all my said real and personal estates whatsoever, lands, tenements, and hereditaments, with the rights, members, and appurtenances thereto belonging for ever; but not to sell or mortgage the same ; charged and chargeable, nevertheless, with the payment of the annuity bequeathed to my wife, by this my will; and in case my said child should happen to depart this life without leaving any issue, then, and in such case only, and not otherwise, I give and devise all my said real and personal estate, to my loving cousins George Foster, John Foster, William Foster, Mary King, and Jane Marriott- (five of the defendants) to hold to them and their heirs and assigns for ever ; " and...
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