Green v Pertwee
| Jurisdiction | England & Wales |
| Judgment Date | 06 July 1846 |
| Date | 06 July 1846 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 905
HIGH COURT OF CHANCERY
S. C. 15 L. J. Ch. 372; 10 Jur. 538.
[249] g-keen v. pertwee. July 2, 6, 1846. [S. C. 15 L. J. Ch. 372; 10 Jur. 538.] The testator gave his real and personal estate to his executors, upon trust, after conversion and payment thereout of his debts, funeral and testamentary expenses and legacies, to stand possessed of the residue, and divide the same into ten equal parts or shares, which he bequeathed to ten persons named in his will, and he declared that if the net residue of his property, after payment of the debts, &c., should exceed £10,000, then £10,000 only should be applicable to the said trusts (£1000 to each share); and in that case the testator gave the residue of his said property V.-C. XII.-29* 906 GREEN V. PERT WEE 5 HAKE, 250. beyond the sum of £10,000 to his nephews and nieces in equal shares. The net residue after the payment of debts, &c., exceeded £10,000. One of the tenth shares of the £10,000 lapsed by the death, in the testator's lifetime, of one of the ten legatees. Held, that the lapsed share of £1000 did not pass as residue to the nephews and nieces, but was undisposed of. The testator in the cause, by his will, dated in 1839, devised his real estate to the executors and trustees of his will, upon trust for sale, and directed that the net monies to arise from such sale or sales (after deducting the expenses attending the same), together with the rent and profits of the premises until the sale, should become and be taken and deemed to be part of his personal estate, and be applied as thereinafter mentioned; and bequeathed the whole of his personal estate to his executors therein named, upon trust to call in and convert the same into money, and stand possessed of the whele of such personal estate when converted, and of the net proceeds of the said real estate, and the rents and profits, after and subject to the payment of all his debts, funeral and testamentary expenses, the legacies given by his will, and which he might thereafter give by any codicil, the charges of proving his will, and all charges incident to the executorship thereof, upon trust, in the first place, to divide the same into ten equal parts or shares, and to stand possessed of the said parts or shares, upon trust for the several persons therein named. And the testator declared his will to be that, in case the net residue of his property, after paying all his debts, legacies and testamentary and other charges and expenses, should be found to exceed the sum of £10,000, then the sum of £10,000 only thereof should be applicable to the trusts thereinbefore declared, and that each share should be satisfied by the payment of £1000. And in that case the testator bequeathed all the residue of his said pro-[250]-perty beyond the said sum of £10,000 unto, and to be equally divided between and amongst all and every his nephews and nieces who should live to attain the age of twenty-one years, share and share alike. The residue of the real and personal estate of the testator, after payment of his debts, legacies and the other expenses, exceeded the sum of £10,000. One of the shares of £10,000 lapsed by the death of a legatee of one of the ten shares in the lifetime of the testator. The question was whether the lapsed share of £1000 belonged to the nephews and nieces in their character of residuary legatees, or whether it was undisposed of, and belonged to the next of kin. The question was raised upon demurrer to the bill of the nephews and nieces of the testator. Mr. Eomilly and Mr. Hallett, for the testator's nephews and nieces. The lapsed share passes by the bequest of residue. Bland v. Lamb (2 J. & W. 402), Easum v. Appleford (5 My. & C. 56 ; S. C., 10 Sim. 274). This has always been the principle with reference to personal estate (Leake v. ftobinson (2 Mer. 392)), and it is now, under the Statute of Wills (7 W. 4 and 1 Viet. c. 26, s. 25), the rule not only as to personal estate, but also as to that part of the lapsed share which arose from the real estate. Mr. Anderdon, Mr. Wood, Mr. Bacon and Mr. Walpole, for the heir at law of the testator, who was one of his next of kin, and also for the other next of kin. The gift to the nephews and nieces is a gift only of the excess of the residue beyond the £10,000. No part of the £10,000 [251] is given to them. A part of that sum having lapsed creates to that extent an intestacy. The lapsed sum of £1000 is a part of the residue apportioned by the testator amongst several legatees, and in such a case, where the gift of a portion of the residue fails, the portion so given does not pass to the other residuary legatees, but is treated as undisposed of: Attorney-General v. John-stone (Ambl. 577), Lloyd v. Lloyd (4 Beav. 231), SJcrymsher v. Northcote (2 Swans. 566). Being undisposed of, the heir at law is entitled to that part which arose from real...
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