Heptinstall v Gott
| Jurisdiction | England & Wales |
| Judgment Date | 07 July 1862 |
| Date | 07 July 1862 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 1134
HIGH COURT OF CHANCERY
S. C. 31 L. J. Ch. 776; 7 L. T. 92; 8 Jur. (N. S.) 1091; 10 W. R. 708.
Will. Devise. Charge.
[449] heptinstall v. g-ott. July 5, 7, 1862. [S. 0. 31 L. J. Ch. 776; 7 L. T. 92; 8 Jur. (N. S.) 1091; 10 W. E. 708.] Will. Devise. Charge. Devise to A. of specific property, " subject to a charge of 150," followed by a residuary bequest, without any disposition of the 150. Held, that the devisee took free from the charge. Joseph Gott made his will, dated the 26th October 1859, which, so far as material, was as follows:- " I give and bequeath upon trust unto R. Heptinstall and T. Livesay all my real and personal estate wheresoever or whatsoever, to dispose of the same in the following manner and form-that is to say, first, I give to my daughter, Sarah Gott, my four freehold cottages, situated at Ardsley, near Wakefield, subject to a charge of 150." Then followed a gift among certain children and grandchildren, including Sarah, of all the personal estate. No specific disposition was made of the said sum of 150. The bill was filed by the acting executor and trustee. 2J.&H.450. GILBERT V. LEWIS 1135 Mr. H. W. Buxton, for the Plaintiff. Mr. Shee, for the heir at law. The charge being undisposed of goes to the heir : Arnold v. Chapman (1 Ves. sen. 108), G-ravenor v. Halluin (Arab. 643). Mr. Wickens, for Sarah Gott. The testator intended Sarah to take the land, subject to providing thereout 150, for a purpose which he does not state. The charge, therefore, sinks for the benefit of the devisee. Mr. F. Webb, for the residuary legatees. The intention to be gathered from the will, as it stands, [450] is simply to convert the realty pro tanto, and leave it to go under the residuary bequest. July 7. vice-chancellor Sir W. page wood. I reserved my judgment on the question, what was the effect of a devise subject to a charge, of which nothing more is said in the will 1 I had to consider a similar question recently, in the case of Tucker v. Kayess (4 K. & J. 339); but an earlier case of Re Cooper's Legacy, which has been affirmed on appeal (4 De G-. M. & G. 757), is more nearly in point. The principle on which I acted in that case was that, if you can ascertain from the terms of a will that a charge is meant as an exception out of a gift, there the charge will be operative, although the disposition of it may not take effect; but that, where the purpose of the charge is merely to provide for...
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