Franks v Price
| Jurisdiction | England & Wales |
| Judgment Date | 08 August 1840 |
| Date | 08 August 1840 |
| Court | High Court of Chancery |
English Reports Citation: 49 E.R. 72
ROLLS COURT
S. C. 9 L. J. Ch. (N. S.), 383; and at law, 5 Bing. (N. C.), 37; 6 Scott. 710.
[182] franks v. price. Dec. 6, 7, 10, 11, 13, 14, 1839; August 8, 1840. [S. C. 9L. J. Ch. (N. S.), 383; and at law, 5 Bing. (N. C.), 37; 6 Scott. 710.] A testator gave life interests in real and personal estate to A. and B., with interests to their issue male in certain events only, and the estate was given over to the heir of the testator on a general failure of issue male of A. and B. Held, that A. and B. took estates tail by implication. A testator devised his real and personal estate to trustees, and gave life-estates therein to several persons, namely, A., B., &c.; and after their deaths he directed the trustees to pay the income to Moses and Naphthali, during their respective livea, share and share alike; and in case either of them should, after the deaths of A., B., c., depart this life without leaving issue male of his body, in trust to pay the whole income to the survivor for life; and he directed that if Moses should, after the deaths of A., B.t &c., die before Naphthali, leaving issiw male, then the trustees should convey, a moiety of the real estate, to the use of the first and other sons of Moses in tail male, with remainder to Naphthali for life, with remainder to his first and other sons in tail, and in default to the testator's right heirs, and lay out a moiety of the personal estate in land, and convey the same to trustees to the like uses. The testator made a similar disposition mutatis mutandis of the other moiety in case of the death of Naphthali, after the death of A., B., leaving issue male, and he provided that in case Moses and Naphthali should die without leaving issue male, or if such issue male should die without leaving any issue male, the trustees should convey the property to such person as should, at the death of the survivor of Moses and Naphthali, be the right heir of the testator. It will be seen that no provision was made for the event (which happened), of Moses dying without issue lie/ore the death of A., B. Naphthali survived Moses and A., B., &c., and Moses died without issue. Held, first, that the words "after the deaths of A., B.," &c., did not import contingency, but were merely words of reference, shewing that the gifts then in course of expression were subject to the prior gifts, and were not to have effect in possession until those prior gifts were satisfied or had become inoperative. Secondly, that the words, " if Moses should die before the death of Naphthali, leaving issue male," must have their natural meaning, and be taken to provide only for the particular cases expressly described. Thirdly, that to effectuate the general intent, Naphthali took an estate tail by implication in both moieties of the realty, and an absolute interest in the personalty. And, fourthly, that the trusts on which the question arose were not executory so as to alter the construction as arising on an executed trust. The question in this case arose on the will of the testator Moses Hart, and was, whether, under the will and in the events which had happened, Naphthali Hart took an estate for life, or an estate tail by implica-[183]-tion, in the real and personal estate of the testator. In the former case alone the Plaintiff would be entitled. The testator, by his will, dated the 2d of April 1756 (after bequeathing several annuities and certain legacies, and specifying various personal property to which he 3BEAV.184. FRANKS V. PRICE 73 was entitled, and reciting that he was possessed of divers messuages and hereditaments and premises at Islesworth, as well freehold and copyhold, and at Richmond and TopsfieJd, and also divers other leasehold messuages, lands, and tenements), devised and bequeathed all his real and personal estate to trustees, their heirs, executors, and administrators, upon trust to sell his real estate at Islesworth and Richmond, and his personal estate, and invest the produce in Government securities; and out of the yearly income thereof, and out of the rents and profits of his estate at Topsfield, and of his leasehold estates, and all other his real and personal estate, to pay the annuities and legacies ; and after payment thereof, he directed the trustees to pay the surplus yearly income of his estate, both real and personal, in manner following : that is to say, one moiety thereof to his daughter, Judith Levy, during her life, or so long as she continued the widow of her late husband; and the other moiety to his daughter Rachael Adolphus, during her life, for her separate use. The testator then proceeded in the following terms:-" And upon further trust, that if the said Rachael Adolphus shall survive the said Judith Levy, or if the said Judith Levy shall at any time hereafter intermarry with any other husband, that from the time of such death or marriage, the moiety of the surplus of the income of my real and personal estates made payable as aforesaid to the said Judith Levy shall be paid by half-yearly payments to the said Rachael Adolphus, for the term of her natural life, for her own sole and separate use, in the same manner as the other moiety is hereby [184] directed to be paid to her as aforesaid ; and upon further trust, that if the said Rachael Adolphus shall die without having any issue of her body, and the said Judith Levy shall her survive, that then and in such case the moiety of the surplus of the income of my said real and personal estate, payable to the said Rachael Adolphus as aforesaid, shall by half-yearly payments be paid to the said Judith Levy, for and during the term of her natural life, if she so long continues the widow of the said Elias Levy. And upon further trust, that if the said Racliael Adolphus shall at her death have any issue of her body lawfully begotten, that then and in such case the moiety of the surplus of the income of my said real and personal estate payable to the said Rachael Adolphus as aforesaid shall from thenceforth by half-yearly payments be paid to all the children of the said Rachael Adolphus, during their respective lives, in equal proportions, share and share alike; and in case of the death of any of them, the part and share of such child so dying shall be equally paid to and amongst the survivors and survivor of them. And on further trust, that from and after the death or marriage of the said Judith Levy, the income of my said real and personal estates devised to her as aforesaid shall be paid by half-yearly payments to and amongst all and every of the children of the said Rachael Adolphus, in the same manner and with the like benefit of survivorship as the surplus of the income of my said real and personal estate payable to the said Rachael Adolphus as aforesaid is hereby directed to be paid. And on further trust, that in case my daughter Rachael Adolphus shall have any issue of her body lawfully begotten, that my said trustees do and shall lay out and expend so much money as they shall think necessary for the boarding, maintenance, and education of such children out of the yearly income and produce of my said real and personal estates devised to them as aforesaid, until such time as they shall respectively attain their [185] respective ages of twenty-five years; and that they my said trustees and executors shall respectively lay out the surplus of such yearly income and produce in Government securities for the use of such children respectively, to be paid to each of them, as he, she, or they shall respectively attain their age or ages of twenty-five years, share and share alike, with benefit of survivorship to each other. And upon further trust, from and after the decease of both my said daughters, and of the issue of the said Rachael Adolphus (or on the marriage of my daughter Judith Levy as aforesaid, she surviving the said Rachael Adolphus and her issue), that the trustees and executors, &o., do pay the yearly income, &c., of all my said estates, &c., among so many of my said three sisters, Margolus Simons, Judith Hart, and Jacobed Hart, as shall be then living, and to the survivors and survivor of them, share and share alike, for and during their respective natural lives, and the life of the longer liver of them, for their separate use." " And upon further trust, from and after the decease of my said daughters, and of the issue of my daughter Rachael Adolphus, and of the decease of my said three sisters, R. II.-3* 74 FRANKS V. PRICE 3 BEAV. 188. that my aaid trustees and executors shall pay the yearly income and produce of my said real and personal estates unto Moses Hart and Naphthali Hart, the sons of my brother-in-law, Solomon Hart, for and during the term of their respective natural lives, share and share alike ; and in case either of them, the said Moses Hart and Naphthali Hart, shall, after the deaths of the said Judith Levy and Rachael Adolphus, and of the children of the said Rachael Adolphus (if any she shall have), and of the decease of my said three sisters, depart this life without leaving issue male of his body lawfully begotten, then in trust to pay the whole yearly income and produce of my said real and personal estate unto the survivor of them, for and during the term of his natural life." [186] "And I do hereby further direct and appoint, that if the said Moses Hart shall, after tfie deaths of the said Judith Levy and Rachael Adolphus, and the children of the said Eachel Adolphus (if any she shall have), and of the decease of my said three sisters, depart this life before the said Naphthali Hart, leaving issue male of his body, that then and in such case my said trustees, or the survivor of them, and the heirs of such survivor, shall convey one moiety of my said real estate at Topsfield, and also convey one moiety of all such other parts of my freehold and copyhold estates as shall be then remaining unsold, to trustees to the use and behoof of the...
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