Hill v Rattey alias Potts
| Jurisdiction | England & Wales |
| Judgment Date | 12 February 1862 |
| Date | 12 February 1862 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 1212
HIGH COURT OF CHANCERY
S. C. 31 L. J. Ch. 380; 5 L. T. 787; 8 Jur. (N. S.) 555; 10 W. R. 439. See Hicks v. Ross [1891], 3 Ch. 503.
Will. Construction. Annuity. Sum Certain per Annum. Whether Perpetual. Rate of Interest. Nature of Security. Costs.
[634] hill v. kattey (alias potts). Feb. 11, 12, 1862. [S. C. 31 L. J. Ch. 380 ; 5 L. T. 787; 8 Jur. (N. S.) 555; 10 W. K. 439. See Hicks v. Boss [1891], 3 Ch. 503.] Will. Construction. Annuity. Sum Certain per Annum. Whether Perpetual. Rate of Interest. Nature of Security. Costs. Bequest as follows :-" I give and bequeath to E. R. all my property, real and personal, except 500 a year, which I give and bequeath unto B. H.:" Held, following 2J. &H. 635. HILL V. RATTEY 1213 Stokes v. Heron (12 01. & F. 161, 192), that B. H. was entitled to so much of testator's residuary estate as would produce ,500 a year in perpetuity. Held, also, that E. H. was entitled to so much of a sum of New 3 per Cents, (part of the testator's estate remaining unapplied), as would produce the 500 a year : since he had a right to the best security to be obtained. Explanation of Evans v. Jones (2 Coll. C. C. 526); and observations on Lett v. Randall (2 De G. F. & J. 392, 393). Rule as to costs between parties claiming a trust fund which has been separated from the general residue. J. N. Potts, by his will, in the year 1860, devised as follows:-"I give and bequeath to Elizabeth Eattey all my property, real and personal, except 500 a year, which I give and bequeath unto my cousin Eowley Hill." This was the whole of the will. The bill was filed by Eowley Hill, as Plaintiff, against Elizabeth Eattey (alias Potts), as Defendant, praying the usual decree for administration; and that a sum of consolidated Bank annuities, the dividends whereof should be equivalent to 500 a year, might be raised out of the testator's estate and transferred to the Plaintiff. Mr. Jessell (in the absence of Sir Hugh Cairns, Q.C.), for the Plaintiff. According to the true construction of this will, the Plaintiff, Eowley Hill, is entitled to 500 a year in perpetuity. Had the bequest to the Plaintiff stood alone, as a bequest to him of 500 a year, without more, and had there been nothing in the will to lead to a contrary conclusion, then, we admit, he could have claimed no more than an annuity of 500 terminable with his life. But that is not the case. The testator begins with a bequest to Elizabeth Eattey, of " all his property, real and personal, except 500 a year;" and it is the thing so ex-[635]-cepted which he bequeaths to Eowley Hill. Now, what the testator gives to Elizabeth Eattey is clearly corpus-principal, for the words " all my property, real and personal," can have no other meaning; and if what is given to Elizabeth Eattey be corpus, then that which is excepted from what is so given must be corpus also. The thing excepted must be of the same nature as that from which it is excepted; and if that from which it is excepted is a fee or an absolute interest, then the thing excepted must be a fee or an absolute interest: Doe dem. Knott v. Lawton (4 Bing. N. C. 455, 461, 462), Davenport v. Coltman (12 Sim. 588), Hotham v. Button (15 Ves. 319), Marshall v. Hopkins (15 East, 309). The bequest to the Plaintiff is in effect, therefore, a bequest of so much of the testator's property, real and personal, as will produce 500 a year, as in Stokes v. Heron (12 01. & F. 161), where, upon a direction in a will, "that whatever the testator should die possessed of should produce to his wife an annuity of 100 per annum," and other annuities to other persons, the House of Lords held the annuities perpetual, upon the ground that they were gifts of property producing the amount of the annuities : " Gifts of so much property as should produce the income which the testator prescribed as the amount of the gifts that he intended for those individuals : "- Per Lord Cottenham, C., in Stokes v. Heron (12 01. & F. 192, 194). [He cited also, and commented upon Rawlings v. Jennings (13 Ves. 39), Tweedale v. Tweedale (10 Sim. 453), Tales v. Maddan (3 M'N. & G. 538, 540), Mansergh v. Campbell (3 De G. & J. 232), Potter v. Baker (13 Beav. 273; 15 Id. 489), and Kerr v. The Middlesex Hospital (2 De G. M. & G. 576); and the Vice-Chancellor referred to Blewitt v. Roberts (Or. & Ph. 274).] [636] Mr. Eolt, Q.C., and Mr. Dickinson, for the Defendant, Elizabeth Eattey. The bequest to the Plaintiff is a bequest of 500 a year, not in perpetuity, but terminable with his life. The Plaintiff's counsel admit that, had the bequest to the Plaintiff stood alone as a bequest to him of 500 a year, the annuity would have been terminable with his life; but they contend that it is explained and enlarged by the prior gift to Elizabeth Eattey. We, on the contrary, contend that the bequest to Elizabeth Eattey being of "all the testator's property, real and personal, except 5000, which he gives to Eowley Hill," the bequest to Elizabeth Eattey can throw no light upon the extent of 1214 HILL V. RATTEY 2J. & H. 637. the bequest to Eowley Hill. The Court must first construe the bequest of 500 a year to Rowley Hill, as if it had stood alone as an independent bequest. Until the extent...
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