Green v Harvey
| Jurisdiction | England & Wales |
| Judgment Date | 09 May 1842 |
| Date | 09 May 1842 |
| Court | High Court of Chancery |
English Reports Citation: 66 E.R. 1100
HIGH COURT OF CHANCERY
S. C. 11 L. J. Ch. 290; 6 Jur. 704.
[428] geeen v. harvey. May 4, 9, 1842. [S. C. 11 L. J.'Ch. 290; 6-jut. 704.] The testator bequeathed a leasehold house and premises, with the furniture and plate, to his son, and added, "and should he die without heir or will, the profits of the said house to be equally divided between all my grandchildren, by the consent of his mother.". Held, that the son took an absolute interest in the house. This suit was instituted to determine the construction of the following clause in the will of E. Green made in 1819 :- " The house, No. 4 in the Eoyal Crescent, with the house in Crescent Street, with the coach-houses and stables belonging to No. 4,1 give and bequeath to my son Richard, with all the household furniture, plate, &c., thereunto belonging; should he die without heir or will, the profits of the said No. 4 to be equally divided between all my grandchildren by the consent of his mother." The premises comprised in this gift were leasehold. Eichard, the son, survived the testator, and died un-[429]-married and intestate; and his personal representatives claimed to be absolutely entitled to the property. The grandchildren of the testator claimed the same property under the bequest over in the events which had happened. Mr. Boteler and Mr. Hare, for the personal representatives of Eichard, the son. It is an established principle that a gift over, in case of the death of the devisee or legatee without heir, would create an estate tail in reality, and confers an absolute interest in personal estate on the first legatee. The second contingency introduced in this case, of the death of the first legatee without will, does not interfere with the operation of the principle which, if there had been no such contingency, would have given the absolute interest to Eichard, the son : Robinson v. Dusgate (2 Vern. 181); MasMyne v. MasJcelyne (Arab. 750); Grey v. Montague (2 Eden, 205; S. C. affirmed, 3 Bro. P. C. 314, Toml. ed.); Attorney-General v. Hall (1 J. & W. 158, n.); Rosss v. Ross (Id. 154); Cuthbert v. Furrier (Jac. 415); Bradley v. Peixoto (3 Ves. 324); Simmons v. Simmons (8 Sim. 22). Mr. James Eussell and Mr. Green, for grandchildren of the testator living at his death. The cases cited, relating entirely to the form of expression which creates an absolute power of disposition in the legatee, and to which a subsequent gift over is necessarily...
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