Gorbell v Forrest
| Jurisdiction | England & Wales |
| Judgment Date | 06 May 1854 |
| Date | 06 May 1854 |
| Court | High Court of Chancery |
English Reports Citation: 52 E.R. 218
ROLLS COURT.
[556] gorbell v. davison. gorbell v. forrest. May 6, 1854. Bequest to A. for life, with remainder to B. for life, and after their deaths, to the testator's next of kin, but should no claimant appear within twelve months after their death, then to charities. A. and B. were sole next of kin at the testator's death. Held, first, that the next of kin were to be ascertained at the testator's death; and, secondly, that A. and B. were not excluded from taking under the ultimate gift to the next of kin. The testator, by his will, devised and bequeathed his estate and effects, real and personal, to his brother, Eichard Davison, and the Plaintiff, Gorbell, upon trust that the amount of the same should be invested in the public funds, and the interest thereof paid to his brother, Eichard Davison, during his natural life. And the testator further willed and bequeathed that at the decease of his brother, Richard Davison, the said interest or dividends should be paid to Elizabeth Fairbank during her natural life, and then, at her decease, the principal sum should be equally divided amongst the testator's next of kin. But should no claimant appear after twelve months from the decease of Richard Davison and Elizabeth Fairbank, the testator desired that the principal sum should be equally divided amongst the charitable societies therein mentioned. The testator died in 1850, and Richard Davison and Elizabeth Fairbank were still living, and were the next of kin of the testator living at the testator's death. But excluding them, the Plaintiffs, in GorbM v. Fairest, would be the testator's next of kin. The question, therefore, was, which of the two parties were entitled, under the ultimate limitation, to the testator's next of kin. Mr. Southgate, for the executor. Mr. R. Palmer and Mr. Simpson, for Eichard Da-[557]-vison. The next of kin must be ascertained at the death of the testator, for that is the only natural period for determining such a class; Gundry v. Pinniger (14 Beav. 94); Cable v. Cable (16 Beav. 507). Being one of such next of kin, Richard Davison is entitled, for the gift clearly vested in the next of kin at the death of the testator; Doe d. Garner v. Lawsm (3 East, 278); Start v. Platel (5 Bing. (N. S.) 434). It will be said that Richard Davison cannot take under the ultimate gift, because he could not be a claimant after his own death, but the answer is that the gift is not to...
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