Gummoe v Howes
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1856 |
| Date | 01 January 1856 |
| Court | High Court of Chancery |
English Reports Citation: 53 E.R. 72
ROLLS COURT
S. C. 26 L. J. Ch. 323; 3 Jur. (N. S.) 176; 5 W. R. 219.
[184] gummoe v. howes. Dec. 10, 11, 1856 ; Jan. 21, 1857. [S. C. 26 L. J. Ch. 323; 3 Jur. (N. S.) 176; 5 W. E. 219.] The words " heirs of the body" used in a will, held, by construction, to mean "children." Devise to trustees, in trust to pay the yearly produce to A. and B. in equal shares, for life, with survivorship, in case of the death of either "without issue." But if either should die " leaving issue," then her part to be paid to her " children" equally. And after the death of both A. and B., to convey " to the heirs of the body of A. and B,, share and share alike, or to the survivors, and if but one, then to such "only child." There was a gift over if A. and B. should die "without issue." Held, that A. and B. took life-estates only, with remainder to their children, as purchasers. The testator devised and bequeathed his freehold, copyhold, leasehold and personal estate to two trustees, as to the residue thereof, after reserving a sufficient fund for the payment of the several legacies and annuities thereinbefore given, upon trust, which he expressed thus :-" Upon trust to pay the yearly produce thereof to Sarah Board and to my granddaughter Sarah Nuttall, in equal shares and proportions, share and share alike, for and during the term of their natural lives, payable half-yearly ; but in case of the death of either of them ivithout issue, the part or share of her so dying shall go and be paid to the survivor of them. But if either of them shall depart this life leaving issue, then the part or share of her so dying shall go and be paid to her children, in equal proportions, if more than one, and if but one, then to such only child. And after the death of both of them the said Sarah Board and Sarah Nuttall, it is my will and desire, and I do hereby order and direct my said trustees to convey, assign, transfer or pay all the rest and residue of my estate or estates, principal and interest, to the heirs of the body of the said Sarah Board and Ann Nuttall, lawfully begotten, share and share alike, or to the survivor or survivors of them, if MBBAV.1M. GUMMOE V. HOWES 73 more than one, and if but one, then to such only child, when and as often as ha, she or they shall attain his, her or their respective age or ages of twenty-one years. And my will and meaning further is, that in case the said Sarah Board and Sarah Nuttall shall de-[185]-part this life without issue, that my said trustees shall convey, assign, transfer and pay the same and every part thereof unto my brother John Finnay (if he shall be then living), if not, to be equally divided amongst his children and grandchildren, share and share alike, and to be conveyed, assigned, transferred or paid to them accordingly, as he, she or they shall attain his, her or their respective age or ages of twenty-one years." The testator died in 1790. Sarah Board married Mr. Howes in 1790, and died in 1828, leaving five daughters. Sarah Nuttall married Mr. Gummoe in 1811, and she died in 1853, leaving four children, viz., the Plaintiff John Gummoe and three daughters. In 1790 a suit of Nuttall v. Clarke had been instituted for the administration of the estate of the testator, in which the residuary personal estate had been ascertained ; and in 1835, after the death of Mrs. Howes, it was declared that, on her death, her children became entitled...
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