Hamley v Gilbert
| Jurisdiction | England & Wales |
| Judgment Date | 04 December 1821 |
| Date | 04 December 1821 |
| Court | High Court of Chancery |
English Reports Citation: 37 E.R. 885
HIGH COURT OF CHANCERY
See Raikes, v. Ward, 1842, 1 Hare, 448.
[354] hamley v. gilbert. Rolls. Dec. 2, 3, 4, 1821. [See Raikes v. Ward, 1842, 1 Hare, 448.] Direction for payment of residue to E. G. H. to be applied by her, at her discretion, for or towards the education of her son, and that she should not be liable to account to him or any other person for the disposal or application of it. The residue being considerable ; Held, that E. (if. H. was entitled to it, subject to the application of so much as the Court might think fit to the education of the son during his minority. Lucretia Pomeroy, by her will, dated in 181 G, gave her real and personal estate to her executors, upon trust to convert it into money, and after payment of her debts, funeral, and testamentary expences and legacies, upon trust to pay over the residue of such monies to her niece Elizabeth Qarnett Hamley, to be by her applied for the purposes thereinafter mentioned. And after giving pecuniary legacies to several persons, some of whom were her next of kin, she declared her will to be, that the residue of the monies arising from the estate and effects thereinbefore directed to be paid to the said Elizabeth Garnett Hamley, should be laid out and expended by her, at her discretion, for or towards the education of her son Francis Gilbert Hamley, her godson, and that she should not at any time thereafter be liable and subject to account to her said son or to any other person whatever, for the disposal or application of such residue or any part thereof. The testatrix by some codicils gave several pecuniary legacies, and amongst them a legacy of 200 to Elizabeth Garnett Hamley. She died in January 1821 ; Francis Gilbert Hamley was an infant. The bill was filed by Elizabeth Garnett Hamley and her husband, claiming to be entitled to the residue of the testatrix's estate, subject only to the application of such part as she in her discretion should think fit for her son. The Defendants were the executors, one of whom was the testatrix's heir at law, and one of her next of kin, and also a legatee of 100, and Francis Gilbert Hamley, the infant. Pursuant to the decree [355] made at the hearing, the accounts of the testatrix's estate had been taken ; the value of the residue appeared to be about 8000. The cause now came on for further directions. Mr. Wetherall and Mr. Merivale for the Plaintiffs contended, that Elizabeth G. Hamley was entitled to the residue, subject only to a direction to maintain and educate her son, which the testatrix had left to her discretion, purposely providing that it should not be an imperative trust, by making her unaccountable. It is an intimation of the testatrix's wish, as distinguished from an obligation. The uncertainty excludes it from being considered as a trust. Bland v. Lamb (Prec. in f.'h. 201, n., ed. Finch}, Le Maitre v. Bannister (Ibid). When a legacy is given to a father for the benefit of himself and his children, it is paid over to him. Cooper v. Thornton (3 Bro. C. C. 96, 186), Robinson v. Tickell (8 Ves. 142). Upon the same rule the property should in this case be handed over to the mother, and when in her possession, as she is not liable to account, it becomes her own. They also cited Hammond v. Neame (1 Swanst. 35). Mr. Roupell for the infant Defendant, F. (f. [famley. The residue is directed to be paid into the hands of the mother, with an expreas trust, importing that she is to apply the whole to his education...
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