Harvey v Cooke
| Jurisdiction | England & Wales |
| Judgment Date | 06 December 1827 |
| Date | 06 December 1827 |
| Court | High Court of Chancery |
English Reports Citation: 38 E.R. 717
HIGH COURT OF CHANCERY
S. C. 6 L. J. Ch. (O. S.) 84. See Smith v. Pincombe, 1852, 3 Mac. & G. 659; Baker v. Bradley, 1855, 7 De G. M. & G. 616.
harvey v. cgoke. Rolls. Nov. 2ii, 27, Dec. o, ti, 1827. [S. G. 6 L. J. Ch. (O. S.) 84. See timith v. Pincombe, 1852, :i Mac. & G. C59 ; Baker v. Bradley, 1855, 7 De Q. M. & (Jr. GIG.] Where legacies are given upon trust to accumulate the interest and dividends, such accumulated interest and dividends will not pass by a gift over of the principal sums, unless the Court is satisfied, by a reference to other clauses of the will, that the interest and dividends were omitted in the gift over by clerical mistake. A transaction cannot be considered as a family arrangement, where the doubts, 718 harvey v. cooke 4 buss. 35. existing as to the rights alleged to be compromised, are not presented to the mind of the party interested. A defect of parties may be cured at the hearing, by the undertaking of the Plaintiff to give full effect to the utmost rights which the absent party could have claimed, those rights being such as do not affect the rights of Defendants. Samuel Gomond, by hia will, bearing date the 8th of June 1816, devised and bequeathed all his freehold and leasehold estates, and all his personal property to Charles Gomond Cooke, William Da/nson, and Christopher Northcote, their heirs, executors, and administrators, upon trust to convert the same into money; to discharge, out of the proceeds, his funeral and testamentary expenses, his debts, and various legacies, amounting in the whole to about 10,543, among which were legacies of 500 to Elizabeth Herring, and of 600 to her. children ; and to invest the residue of the monies on government or real securities. Out of the dividends [35] an(l interest of this fund there was to be paid to his wife, Mary Gomond, a clear annuity of 1050, over and above a sum of 150 a-year, which was secured to her by her marriage settlement; and if the dividends and interest were not sufficient for that purpose, so much of the principal, as might be necessary, was to be appropriated to the satisfaction of the annuity. Subject to this charge, the testator gave his residuary estate unto and equally between and amongst the children of Charles Gomond Cooke, Richard Gomond, and Elizabeth Herring, the same to be paid and assigned when and as soon as the youngest of such children should have attained the age of twenty-one years ; but the interest and dividends thereof were, in the mean time, to be paid and applied for their respective use and benefit. He further directed, that, in case any person, claiming to be benefited under his will, should contest or dispute its validity, or otherwise disturb his executors in the execution thereof, the bequest given to such person should be null and void, and should sink into the residue : and he appointed Charles Gomond Cooke, William Danson, and Christopher Northcote, his executors. The testator died in May 1819. Charles Gomond Cooke had only one child, a daughter ; Richard Gomond had four children ; and Mrs. Herring had six children. At the institution of the suit all these children had attained twenty-one. Edmund Gomond, the father of Samuel Gomond, had died in 1784. As no will was produced, he was supposed to have died intestate; and Samuel Gomond, as his only child and sole next of kin, had obtained administration to him, and taken possession of all his property. But, a short time after Samuel's death, there was found in one of the secret drawers of a bureau, a will of his father [36] Edmund Gomond, which bore date the 10th of September 1783. By this will the testator, after devising a leasehold house to his son, with limitations over, gave his brother, Thomas Gomond, a specific sum of 5000 four per cent. consolidated bank annuities, another specific sum of 5300 three per cent, consolidated bank annuities, and a sum of 3000 which he had at interest on a mortgage of the estate of Lord Clifford, upon trust to receive the interest and dividends of these sums, and apply such parts thereof, as he in his discretion should see fit, in the maintenance and education of all or any of the children of his son Samuel Gomond, until they should respectively attain the age of twenty-one years, or be married, with such consent as was therein mentioned ; and, upon further trust, to place out the surplus of such interest and dividends at interest on government or freehold securities, so as to accumulate for the benefit of the persons to whom the same was thereinafter bequeathed. He then proceeded to direct, that "the said principal sums, and the accumulated interest thereof" should be paid to such one or more of the children of his son Samuel, as should attain the age of twenty-one years or day of marriage with consent, subject to a power of appointment hi the father. " But," continued the testator, " if there shall not be any child or children of my said son Samuel, or, being such, they shall all happen to die without attaining as aforesaid, then I give and bequeath the interest, dividends, and produce oi the same principal sums, unto the said Thomas Gomond for his life, for his own use and benefit, and from and after his decease, then in trust that the executors or administrators of the said Thomas Gomond do and shall pay the interest, dividends, and [37] profits of the same principal sums unto the said Mary, the daughter of the said Thomas Gomond, for and during the term of her natural life; and from and after her decease, 4BUS8. 38. HARVEY V. COOKE 719 in trust ,to pay and apply such parts of the interest, dividends, and produce of the said principal monies, as he the said Thomas Gomond, his executors or administrators, shall see proper, in the maintenance and education of all and every the children of my said niece Mary Gomond, until they shall respectively attain their age of twenty-one years, or be married with such consent as aforesaid, and to place out the surplus of such interest, dividends, and produce, as the same shall be received, at interest on government or other freehold security, for the benefit of the persons to whom the same is hereafter bequeathed, and in trust to pay the said principal sums, and the unapplied interest thereof, unto such one or more of the children of my said niece Mary Gomond who shall live to attain the age of twenty-one years, or day of marriage with such consent as aforesaid, in such parts, shares, &c., as she the said Mary Gumond by any deed or writing, &c., shall appoint; and in default of such appointment, &c., in trust to pay and divide the said principal smns unto and amongst all and every the child and children of the said Mary Gomond who shall live to attain the age of twenty-one years, or day of marriage with such consent as aforesaid, &c. : and if there shall not be any child or children of my said niece Mary Gomond, or, being such, they shall all happen to die without attaining as aforesaid, then in trust to pay one-fourth part of the said principal monies unto my nephew Charles Cooke, his executors or administrators ; and in trust to pay one-fourth part of the said principal monies unto my nephew Richard Gomond, his executors and administrators; and in trust to pay one other fourth part of the said principal monies unto my brother Walter Gomond, his exe-[38]-cutors or administrators ; and in trust to pay the remaining fourth part of the said principal monies unto my sister Mrs. Elizabeth Rowley, her executors or administrators : and it is my will, intent, and meaning, that so much money as shall have been allowed by the said Thomas Gomond, his executors or administrators, towards the maintenance and education, of any of the children of my said son and my said niece Mary respectively, more than shall have been advanced towards the maintenance and education of the others of such children, shall be deducted and allowed out of the parts of such children respectively in the said trust monies, when the same shall become payable, so that all their shares in the said trust monies may be thereby made equal." The testator further gave the sum of '2000 upon trust to pay the dividends to his son tiamuel during his life, and, after his decease, to pay the principal, with the accumulated interest, to such of Samuel's children us attained twenty-one or married with consent ; and, if there were no such children, to pay one fourth of the principal monies to Charles Cooke ; another fourth part, to Richard Gomond ; another fourth part, to Walter Gomond ; and the remaining one fourth, to Elizabeth Rowley. He likewise gave Elizabeth Rowley the interest of '200 during her life. The residue of his property he bequeathed to his son tiamuel Gomond, and appointed him his executor. Thomas Gomond, Charles Cooke, Walter Gomond, Richard Gomond, and Elizabeth Rowley all survived Edmund Gomond, and all died in the lifetime of Samuel Gomond. Samuel Gomond had intermarried, after his father's death, with his cousin Mary Gomond, the daughter of Thomas ; but there never was any issue of the marriage. [39] She survived him ; and, in 1819, was about fifty-six years of age. Her father, Thomas Gomond, had died in 1794. At Samuel's death, the rights of Charles Cooke under the will of Edmund Gomond were vested in his son and personal representative, the Defendant C. G. Cooke ; those of Richard Gomond, in his personal representative Susannah Gomond ; and those of Walter Gomond and Elizabeth Rowley, in Ann Rowley, who was the personal representative of both Subject to Mary Gomond's life interest, and the contingent limitations...
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