Henry Sharnborne Nathaniel Micklethwait v The Rev John Nathaniel Micklethwait
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1858 |
| Date | 01 January 1858 |
| Court | Court of Common Pleas |
English Reports Citation: 140 E.R. 1302
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 28 L. J. C. P. 121; 29 L. J. C. P. 73; 5 Jur. N. S. 41, 437; 7 W. R. 117, 451. See Dormer v. Ward, [1900] P. 137; [1901] P. 20.
henry sharnborne nathaniel micklethwait v. the key. john nathaniel micklethwait. 1858. [S. C. 28 L. J. C. P. 121; 29 L. J. C. P. 75; 5 Jur. N. S. 41, 437; 7W. E. 117, 451. See Dormer v. Ward, [1900] P. 137; [1901] P. 20.] John M.,-who possessed estates called the H., B., and T. estates, in Norfolk, and also other estates in Norfolk, Suffolk, Surrey, Middlesex, and London, and also in the county of Westmeath,-had three sons, John/Nathaniel, and Jonathan George. -On the marriage of his Second son, Nathaniel, John M., by settlement of September, 1782, settled the H., B., and T. estates, after a prior life-estate to himself, and a provision as to pin-money for the intended wife, to the use of Nathaniel for life, remainder to such son of the marriage as Nathaniel should appoint, and, in default of appointment, to the use of the first and other sons of the marriage, in tail-male, with remainder to the settlor in fee. There was issue of this marriage two sons, Nathaniel, and Sotherton, the former of whom on the death (in 1786) of his father (no appointment having been made pursuant to the power) succeeded to the H., B., and T. estates, as first tenant in tail.-By his will, of December, 1797, John M. devised his other real estates,-to the use of his eldest son, John, for life, with remainder to his first and other sons successively in tail male; and, in default of such issue, to the use of such one of his two grandsons, Nathaniel and Sotherton, sons of his late son Nathaniel, as his son John should by deed or will appoint, for life, remainder to the first and other sons of such appointee successively in tail male, remainder, in default of issue, to the other of his two grandsons for life, remainder to the first and other sons of such grandson successively in tail male; and, in case of default of any such appointment by John, the testator devised the estates to the eldest of his two grandsons, Nathaniel, for 0. B. (N. S.) 790. MICKLETHWAIT V. MICKLBTHWAIT 1303 life, with remainder to his first and other sons successively in tail male, with remainder, on failure of such issue, to his second grandson, Sotherton, for life, and to his sons successively in tail male; and, on failure of such issue, to his (the testator's) third son, Jonathan George, for life, and to his sons successively in tail male ; remainder to the testator's own right heirs.-By an unattested codicil, the testator professed to revoke the foregoing devise so far as it regarded the estates in Surrey, Middlesex, and London, and to devise these to Jonathan George, in fee.- Upon the death of John M. (in 1799), his eldest son, John, entered into possession of the estates comprised in the will of 1797, and continued in possession until his death, in 1824.-In 1804, Nathaniel (grandson of John M.), being about to marry, executed what purported to be a marriage-settlement, to which John, his uncle, was a party,-whereby, after reciting the settlement of 1782, he covenanted, with the consent of his guardians, within three months after he should have attained the age of twenty-one, to settle and assure the H., R, and T. estates to the use of himself for life, and, after his decease, to the use and intent that his intended wife should during her life receive a jointure-annuity of 10001., and, subject thereto, to the use of himself in fee. In pursuance of this covenant, Nathaniel, by an indenture of the 28th of January, 1805, and a recovery suffered in pursuance thereof, barred the entail in these estates. The only issue of this marriage was a son Nathaniel Waldegrave (afterwards Colonel M.).-In 1810, Nathaniel (grandson of John M.) being about to contract a second marriage, proposals for a settlement, to which John, the uncle, was a party, were drawn up and agreed to; and, on the 29th of November in that year, the latter, in exercise of the power given to him by the will of 1797, appointed the estates thereby devised to Nathaniel, to hold according to the terms of that will. By the settlement thereupon made, Nathaniel conveyed the Hickling estate to trustees, to the use of himself for life, remainder to the intent that his intended wife, in case she should survive him, should receive thereout a jointure-annuity of 10001., and, subject thereto, to the use of the trustees for the term of 1000 years for securing the annuity and for raising 15,0001. for the portions of the younger children, and, subject thereto, to the use of himself in fee : and he further covenanted with the trustees, as soon as he should come into possession of the other estates by virtue of the will of 1797 and his uncle's appointment, to charge those estates with a further annuity of 5001. in favour of his intended wife, and, so far as he was able, he thereby limited and appointed to her the said annuity, to be payable out of the said estate. -There were several children of this marriage,-of whom the defendant in this action was the eldest, and the plaintiff the second.-John, the tenant for life under the will of 1797, having through his mother's family become possessed in fee-simple of certain real estates, and, amongst others, of one in Sussex called the Iridge estate, and being childless, in the year 1822 made his will, whereby,-after reciting his father's will, and his desire that the attempted codicil thereto should be confirmed, and the devise therein of the lands in Surrey, Middlesex, and London, to his brother Jonathan George, in fee, should be established,-proceeded to devise the Iridge estate to trustees, first, to the use of his nephew Sotherton for life, remainder to the first and other sons of the body of Sotherton successively in tail male; secondly, in default of such issue, to his' (the testator's) brother Jonathan George for life, remainder to his nephew, John, eldest son of Jonathan George, for life, and to the first and other sons of John successively in tail male. Then followed two shifting clauses, the first of which provided, that, if the testator's nephew Nathaniel and his first . or other son or sons, or his or their heirs, should, in the life-time of Jonathan George, effectually confirm and establish the codicil to the will of 1797, by effectually conveying the lands in Surrey, Middlesex, and London to Jonathan George in fee, then the foregoing devise in favour of Jonathan George and of his son John and his first and other sons in tail male, was to become void, and, immediately on such event, or otherwise in default of issue of the testator's nephew John, the estate was to pass to the testator's great-nephew John Nathaniel (second son of his nephew Nathaniel) for life, remainder to the first and other sons of John Nathaniel, in tail male, remainder to the third, fourth, fifth, and every other son of his (the testator's) nephew Nathaniel (excepting always the eldest son), successively, in tail male, with remainder, in default of issue, to Jonathan George in fee.-Then followed the second shifting clause, upon which the contest mainly arose,-" And as by possibility 1304 MICKLETHWAIT V. MICKLETHWAIT 4 C. B. (N. S.) 791. it may so happen, that, from and after the second, third, fourth, or "other younger son of my said nephew Nathaniel, or the heirs male of his or their respective body or bodies, shall, under the limitations aforesaid, have come into possession of my said hereditaments and real estate, the eldest or elder son of my said nephew Nathaniel, or the heirs male of his body, may die and become extinct, so that the second or other younger son of my said nephew Nathaniel, or the heirs male of the body of such second or other younger son, may become entitled to the property settled on the marriage of the said Nathaniel, in the character of the then heir male of his body,-now, in order to prevent the union of the two estates in the same person whilst there is in existence a younger- son, or an heir male of the body of a younger son, of my said nephew Nathaniel, I do by this my will direct and declare, that, in case the second, third, fourth, or other younger son, or the heirs male of the body of such younger son or sons, shall, by the death or failure of issue male of the eldest or other elder son, become entitled to the said settled property of my said nephew Nathaniel, as the heir male of his body, then the limitations in this my will in favour of such second or other younger son, so becoming entitled, shall immediately after such event cease and become void, and the next younger son of my said nephew Nathaniel, and the heirs male of his body, shall, under the limitations of this my will, become entitled to my hereditaments and real estate aforesaid, in such manner in every respect as if his next elder brother, or the issue male of his body, had been dead or become extinct."-John (the testator of 1822) died in 1824, and his nephew Sotherton thereupon entered into possession of the Iridge estates under the last-mentioned will; and his nephew Nathaniel entered into possession of the estates devised by the will of 1797.-In April, 1826, Nathaniel (nephew of the testator of 1822) and his eldest son Colonel M. conveyed the lands in Surrey, Middlesex, and London to Jonathan George, in fee, conformably to the terms of the first shifting clause of the will of 1822; whereupon, by virtue of the provisions of the will, the devise of the Iridge estate in remainder to Jonathan George and his sons in tail male became void, and the devise of that estate in remainder to Nathaniel (the testator's nephew) and his sons took effect.-Nathaniel (nephew of the testator of 1822) died in 1856, having previously devised his Hickling and other estates, subject to a term of years...
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