Hemming v Whittam
| Jurisdiction | England & Wales |
| Judgment Date | 14 December 1831 |
| Date | 14 December 1831 |
| Court | High Court of Chancery |
English Reports Citation: 58 E.R. 246
HIGH COURT OF CHANCERY
Will. Construction. Trust.
[22] benson v. whittam. hemming . whittam.(!) Dec. 14, 1831. Will. Construction. Trust. Testator gave annuities out of any money arising from whatever dividends he might die possessed of in the Bank of England, and the residue of the said dividends to his brother A., to enable him to assist such of the children of his brother F. as he should find deserving of encouragement, and upon the demise of the annuitants or any of them, the testator gave each annuitant's proportion of the before-mentioned dividends to his brother A., to be at his disposal, but the principal to remain in the bank. Held, that no trust was created for the children of F., but that A. took absolutely the capital of the testator's stock, subject to the annuities. John Benson made his will in his own handwriting, dated the 30th of May 182:2, and in the following words :-" I give and bequeath unto my niece, Maria Foster, for her own sole use and disposal, the dividend arising on my share as a contributor to the joint stock of the Corporation of the Amicable Society for a perpetual assurance office: to Sarah Acres, spinster (who has been brought up in my family from her infancy), so long as she remains unmarried, the sum of 200 per annum, for her sole and separate use, to my niece, Mary Parsons, 200 per annum, for her sole and separate use, and after her decease, to be equally divided amongst her three children, or the survivor or survivors of them, and to the widow of my brother Francis Benson, of the City of York, shoemaker, 50 per annum, out of any money arising from whatever dividends I may die possessed of in the Bank of England, and the residue and remainder of the said dividends to my brother, Arthur Benson (to enable him to assist such of the children of my deceased brotlier, Francis Benson, as he, the said Arthur Benson, may find deserving of encouragement),(2) to be paid to the said several persons as the same shall become due; and upon the demise of the said Sarah Acres, Mary Parsons and her three [23] children, and the widow of my brother Francis Benson, or any of them, I bequeath each such person's proportion of the before-mentioned dividends, to my said brother Arthur Benson, to be at his disposal, but the principal to remain in tfie bank: and I also give and bequeath to the said Sarah Acres and my before-mentioned niece, Mary Parsons, to be divided equally between them (exclusive (1) See the report of this cause on the hearing, in vol. ii. p. 493. (2) In the original will these words were in a parenthesis. 8 SIM. M. BENSON V. WHITTAM 247 of what I have before bequeathed unto them), all my household furniture in town and country, plate, watches, linen, china, notes, bonds, ready cash, live-stock and carriages (if any), and all monies due and owing to me, except what money may be in the hands of any banker,, and 1000 lent by me to the trustees for repairing Peterborough Church, which I bequeath to my said brother, Arthur Benson, together with the lease or leases of any dwelling-house, land or houses that I may have, they the said Sarah Acres and Mary Parsons defraying, or causing to be defrayed my just debts and funeral expenses, and paying to each of my executors the sum of 100 for their trouble in executing this my last will and testament, also 200 to Mrs. Hannah Benson, of Hull, widow, to enable her to put out her four children to some profession, whereby they may be enabled to gain a livelihood, and likewise 20 to Sarah Collins, spinster, and her sister, Frances Stuart, and to Mr. Daniel Denny, silversmith, to purchase mourning. I likewise give and bequeath to my said brother, Arthur Benson, all my Parliamentary books, fire-arms, fishing-rods and tackle thereunto belonging, together with my walking-sticks and canes, and to the children of my brother, Francis Benson, all my wearing apparel, shoes and body linen, to be equally divided amongst them, and I do appoint my said brother, [24] Arthur Benson, and George Whittam, Esquires, executors of this my last will and testament. The testator died on the 3d of April 1827. It appeared by the Master's report that Arthur Benson and Mrs. Parsons and the five other children of Francis Benson (all of whom were Defendants), were the testator's next of kin at his death, and that they were in humble conditions of life; and that the testator at the date of his will was possessed of 23,000 stock, in the three per cents, and four per cents., and at his death of 27,500 stock in the three and three and a half per cents. The causes now came on to be heard...
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